EXHIBIT 10.1
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Published CUSIP Number: ______________
CREDIT AGREEMENT
Dated as of October 17, 2005
among
FIDELITY NATIONAL TITLE GROUP, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and Swing Line Lender,
SUNTRUST BANK,
U. S. BANK NATIONAL ASSOCIATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
JPMORGAN CHASE BANK, ▇.▇.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as
Co-Syndication Agents,
BANK OF THE WEST,
COMERICA BANK,
LA SALLE BANK NATIONAL ASSOCIATION,
SUMITOMO MITSUI BANKING CORP., NEW YORK,
UNION BANK OF CALIFORNIA, N.A.,
as
Co-Senior Managing Agents,
and
The Other Lenders Party Hereto
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BANC OF AMERICA SECURITIES LLC,
as
Lead Arranger and Book Manager
TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.................................................... 1
1.01 Defined Terms.............................................................................. 1
1.02 Other Interpretive Provisions.............................................................. 25
1.03 Accounting Terms........................................................................... 26
1.04 Rounding................................................................................... 26
1.05 Times of Day............................................................................... 27
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS............................................... 27
2.01 Revolving Loans............................................................................ 27
2.02 Borrowings, Conversions and Continuations of Revolving Loans............................... 27
2.03 Swing Line Loans........................................................................... 29
2.04 Prepayments................................................................................ 31
2.05 Termination or Reduction of Commitments.................................................... 32
2.06 Repayment of Loans......................................................................... 32
2.07 Interest................................................................................... 33
2.08 Fees....................................................................................... 33
2.09 Computation of Interest and Fees........................................................... 34
2.10 Evidence of Debt........................................................................... 34
2.11 Payments Generally......................................................................... 34
2.12 Sharing of Payments........................................................................ 36
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.............................................. 37
3.01 Taxes...................................................................................... 37
3.02 Illegality................................................................................. 39
3.03 Inability to Determine Rates............................................................... 39
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans..... 39
3.05 Compensation for Losses.................................................................... 41
3.06 Mitigation Obligations; Replacement of Lenders............................................. 42
3.07 Survival................................................................................... 42
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS........................................... 42
4.01 Conditions of Initial Credit Extension..................................................... 42
4.02 Conditions to all Credit Extensions........................................................ 43
ARTICLE V. REPRESENTATIONS AND WARRANTIES...................................................... 44
5.01 Existence, Qualification and Power; Compliance with Laws................................... 44
5.02 Authorization; No Contravention............................................................ 44
5.03 Governmental Authorization; Other Consents................................................. 44
5.04 Binding Effect............................................................................. 45
5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event................ 45
5.06 Litigation................................................................................. 46
5.07 No Default................................................................................. 46
5.08 Ownership of Property; Liens............................................................... 46
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TABLE OF CONTENTS
Section Page
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5.09 Environmental Compliance................................................................... 46
5.10 Insurance.................................................................................. 46
5.11 Taxes...................................................................................... 46
5.12 ERISA Compliance........................................................................... 47
5.13 Intellectual Property, Licenses, etc....................................................... 47
5.14 Subsidiaries............................................................................... 47
5.15 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............. 48
5.16 Disclosure................................................................................. 48
5.17 Compliance with Laws....................................................................... 48
5.18 Solvent.................................................................................... 48
5.19 Licenses................................................................................... 49
5.20 Employee Matters........................................................................... 49
5.21 Insurance Subsidiaries..................................................................... 49
ARTICLE VI. AFFIRMATIVE COVENANTS............................................................... 49
6.01 Financial Statements....................................................................... 49
6.02 Certificates; Other Information............................................................ 50
6.03 Notices.................................................................................... 53
6.04 Preservation of Existence, Etc............................................................. 54
6.05 Maintenance of Properties.................................................................. 55
6.06 Maintenance of Insurance................................................................... 55
6.07 Compliance with Laws....................................................................... 55
6.08 Books and Records.......................................................................... 55
6.09 Inspection Rights.......................................................................... 55
6.10 Use of Proceeds............................................................................ 56
6.11 Payment of Taxes........................................................................... 56
ARTICLE VII. NEGATIVE COVENANTS.................................................................. 56
7.01 Liens...................................................................................... 56
7.02 Consolidations and Mergers; Sales of Assets................................................ 58
7.03 Investments................................................................................ 59
7.04 Limitation on Indebtedness................................................................. 60
7.05 Transactions with Affiliates............................................................... 61
7.06 Restricted Payments........................................................................ 61
7.07 Change in Business......................................................................... 62
7.08 Accounting Changes......................................................................... 62
7.09 Financial Covenants........................................................................ 62
7.10 Negative Pledges, Restrictive Agreements, etc.............................................. 62
7.11 ERISA...................................................................................... 63
7.12 Debt Ratings............................................................................... 63
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES...................................................... 63
8.01 Events of Default.......................................................................... 63
8.02 Remedies Upon Event of Default............................................................. 66
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TABLE OF CONTENTS
Section Page
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8.03 Application of Funds....................................................................... 67
ARTICLE IX. ADMINISTRATIVE AGENT................................................................ 67
9.01 Appointment and Authority.................................................................. 67
9.02 Rights as a Lender......................................................................... 67
9.03 Exculpatory Provisions..................................................................... 68
9.04 Reliance by Administrative Agent........................................................... 68
9.05 Delegation of Duties....................................................................... 69
9.06 Resignation of Administrative Agent........................................................ 69
9.07 Non-Reliance on Administrative Agent and Other Lenders..................................... 70
9.08 No Other Duties, Etc....................................................................... 70
9.09 Administrative Agent May File Proofs of Claim.............................................. 70
ARTICLE X. MISCELLANEOUS....................................................................... 71
10.01 Amendments, Etc............................................................................ 71
10.02 Notices; Effectiveness; Electronic Communication........................................... 72
10.03 No Waiver; Cumulative Remedies............................................................. 74
10.04 Expenses; Indemnity; Damage Waiver......................................................... 74
10.05 Payments Set Aside......................................................................... 76
10.06 Successors and Assigns..................................................................... 76
10.07 Confidentiality............................................................................ 80
10.08 Right of Set-off........................................................................... 80
10.09 Interest Rate Limitation................................................................... 81
10.10 Counterparts; Integration; Effectiveness................................................... 81
10.11 Survival of Representations and Warranties................................................. 81
10.12 Severability............................................................................... 82
10.13 Replacement of Lenders..................................................................... 82
10.14 Governing Law.............................................................................. 82
10.15 Waiver of Jury Trial....................................................................... 83
10.16 USA Patriot Act Notice..................................................................... 84
10.17 Entire Agreement........................................................................... 84
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.05 Supplement to Interim Financial Statements
5.06 Existing Litigation
5.12 ERISA Matters
5.14 Subsidiaries
7.01 Existing Liens
7.03 Existing Secondary Investments
7.04 Existing Debt
7.05 Affiliate Transactions
10.02 Administrative Agent's Office, Certain Addresses for Notices
10.06 Processing And Recordation Fees
EXHIBITS
FORM OF
A Revolving Loan Notice
B Swing Line Loan Notice
C Revolving Loan Note
D Swing Line Note
E Compliance Certificate
F Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of October 17,
2005, among FIDELITY NATIONAL TITLE GROUP, INC., a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), BANK OF AMERICA, N.A., as
Administrative Agent and Swing Line Lender, SUNTRUST BANK, U. S. BANK NATIONAL
ASSOCIATION, WACHOVIA BANK, NATIONAL ASSOCIATION, JPMORGAN CHASE BANK, N.A. and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (collectively, as Co-Syndication Agents),
and BANK OF THE WEST, COMERICA BANK, LASALLE BANK NATIONAL ASSOCIATION, SUMITOMO
MITSUI BANK CORP., NEW YORK, and UNION BANK OF CALIFORNIA, N.A. (collectively,
as Co-Senior Managing Agents).
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquired Cash Flow" means, for any period, (a) Dividend Capacity of any
Person or assets acquired by the Borrower or a Subsidiary which is an Insurance
Subsidiary in a Permitted Acquisition during such period, plus (b) EBITDA of any
Person or assets acquired by the Borrower or a Subsidiary which is a
non-Insurance Subsidiary in a Permitted Acquisition during such period and
available to be paid as dividends to the Borrower under applicable Law, in
either case as determined on a pro forma basis for such period as if
consummation of such Permitted Acquisition occurred on the first day of such
period.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the Equity
Interests of any Person, or otherwise causing any Person to become a Subsidiary
or (c) a merger or consolidation or any other combination with another Person
(other than with a Person that is a Subsidiary); provided that the Borrower or
one of its Subsidiaries is the surviving entity.
"Acquisition Consideration" means the consideration given by the Borrower
or any of its Subsidiaries for an Acquisition, including but not limited to the
sum of (without duplication) (a) the fair market value of any cash, property
(including Equity Interests) or services given, plus (b) the amount of any
Indebtedness assumed, incurred or guaranteed (to the extent not otherwise
included) in connection with such Acquisition by the Borrower or any of its
Subsidiaries.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower 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. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% of the
Voting Stock of such Person.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Annual Statement" means the annual financial statement of any insurance
company as required to be filed with the Department, together with all exhibits
or schedules filed therewith, prepared in conformity with SAP. References to
amounts on particular exhibits, schedules, lines, pages and columns of such
Annual Statements are based on the formats promulgated by the NAIC for 2004
Annual Statements for the applicable type of insurance company. If such format
is changed in future years so that different information is contained in such
items or they no longer exist, it is understood that the reference is to
information consistent with that recorded in the referenced item in the 2004
Annual Statement of the insurance company.
"Applicable Debt" means obligations described in clauses (a) and (f) of
the definition of Indebtedness contained herein (other than obligations
permitted by Section 7.04(f) and (g)).
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating of the Borrower as set forth below:
PRICING DEBT RATINGS EURODOLLAR
LEVEL S&P/▇▇▇▇▇'▇ FACILITY FEE RATE +
------- --------------- ------------ ----------
1 A-/A3 or higher 0.070 0.280
2 BBB+/Baa1 0.080 0.370
3 BBB/Baa2 0.100 0.400
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4 BBB-/Baa3 0.125 0.500
5 BB+/Ba1 0.175 0.700
6 BB/Ba2 or lower 0.250 1.000
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or ▇▇▇▇▇'▇ (collectively, the "Debt Ratings") of the
Borrower's non-credit-enhanced, senior unsecured long-term debt; provided that
if a Debt Rating is issued by each of the foregoing rating agencies, then the
higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level
1 being the highest and the Debt Rating for Pricing Level 6 being the lowest),
unless there is a split in Debt Ratings of more than one level, in which case
the Pricing Level that is one level higher than the Pricing Level of the lower
Debt Rating shall apply. If the Borrower has no Debt Rating from either S&P or
▇▇▇▇▇'▇, the Applicable Rate shall be deemed to be in Pricing Level 6.
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof pursuant to Section 6.02(f) and
ending on the date immediately preceding the date of the next such change and,
in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
date of the next such change.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Approved Securities" means fixed maturity securities or preferred stock
which are rated as Investment Grade by at least one of the Rating Agencies.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that
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would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2005, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto, provided that solely with respect to
Section 5.05(e), until the audited financial statements for the Borrower for the
fiscal year ended December 31, 2006 are delivered to the Administrative Agent,
Audited Financial Statements shall mean the audited consolidated balance sheet
of FNF and its SEC reporting subsidiaries for the most recently ended fiscal
year of FNF, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of FNF and its SEC
reporting subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the Maturity Date.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"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" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Revolving Borrowing or a Swing Line 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 and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures by the Borrower and its Subsidiaries during such period that, in
conformity with GAAP, are or are
4
required to be included as additions during such period to property, plant or
equipment, and including capitalized software expenditures, reflected in the
consolidated statement of cash flows of the Borrower and its Subsidiaries.
"Capital Lease", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is, or is required to be, accounted for as a capital lease on the
balance sheet of that Person.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
constituting a Capital Lease and, for purposes of each Loan Document, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
in any Person that is a corporation, each class of partnership interest in any
Person that is a partnership, and each class of membership interest in any
Person that is a limited liability company, and any warrants or options to
purchase or otherwise acquire any such equity interests.
"Cash Equivalents" means:
(a) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof, in each case
having maturities of not more than 12 months from the date of acquisition
thereof;
(b) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality
thereof having maturities or interest reset period 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 Rating Agency, or, with respect to
municipal bonds, a rating of at least MIG 2 or VMIG 2 from ▇▇▇▇▇'▇;
(c) commercial paper issued by any Lender or any bank holding
company owning any Lender;
(d) 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 Rating Agency and commercial paper maturing
not more than 90 days after the date of creation thereof and, at the time
of acquisition, having a rating of at least A-2 or P-2 from either Rating
Agency;
(e) 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
FDIC for the full amount thereof;
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(f) 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 (a), (b) and (e) above entered into with any
bank meeting the qualifications specified in clause (e) above or
securities dealers of recognized national standing; and
(g) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types without regard to maturity of securities described in clauses (a)
through (f) above.
"Cash Flow" means, for any period (without duplication), (a) Dividend
Capacity of the Insurance Subsidiaries, plus (b) EBITDA of the Borrower and its
Subsidiaries which are non-Insurance Subsidiaries available to be paid as
dividends under applicable Law, plus (c) the total interest expense for such
period multiplied by the actual marginal combined federal and state income tax
rate then applicable to the Borrower, plus (d) Acquired Cash Flow.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any Law, (b) any
change in any Law or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of Law) by any
Governmental Authority.
"Change of Control" means, and shall be deemed to have occurred if: (a)
FNF shall make any disposition of any shares of the common Capital Stock of the
Borrower that it owns as of the Closing Date, (b) at any time FNF ceases to own
at least 75% of the common Capital Stock of the Borrower or (c) at any time
Continuing Directors shall not constitute a majority of the Board of Directors
of the Borrower.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Co-Senior Managing Agents" has the meaning specified in the introductory
paragraph hereto.
"Co-Syndication Agents" has the meaning specified in the introductory
paragraph hereto.
"Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01, and (b) 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 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.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit E.
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"Contingent Obligation" means (without duplication), as to any Person, any
direct or indirect liability of that Person, with or without recourse,
guaranteeing or intended to guarantee any Indebtedness, lease, dividend or other
monetary obligation (the "primary obligations") of another Person (the "primary
obligor") in any manner, including any obligation of that Person (a) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor, (b) to advance or provide funds for the payment or discharge
of any such primary obligation or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the holder of any such primary obligation against
loss in respect thereof. The amount of any Contingent Obligation shall be deemed
equal to the lesser of (x) the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or (y) the
amount of the guaranty if limited in amount or, if not stated or if
indeterminable or unlimited in amount, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder), as determined by such Person in good faith. If the Contingent
Obligation is limited to recourse against particular assets, the amount of the
Contingent Obligation shall be deemed to be the lesser of the above and the fair
market value of the applicable assets. Notwithstanding the foregoing, the term
"Contingent Obligation" shall not include (a) endorsements of instruments for
deposit or collection in the ordinary course of business, and (b) obligations of
any Insurance Subsidiary under Insurance Contracts, Reinsurance Agreements and
Retrocession Agreements (but not including any of the foregoing that constitutes
financial reinsurance).
"Continuing Director" means, at any date, an individual (a) who is a
member of the Board of Directors of the Borrower on the Closing Date, (b) who,
as at such date, has been a member of such Board of Directors for at least the
12 preceding months (or, for the period comprising the first 12 months after the
Closing Date, has been a member of the Board of Directors at least since the
Closing Date), or (c) who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Revolving Borrowing
and (b) a Swing Line Borrowing.
"Debt Rating" has the meaning set forth in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the
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United States, any state thereof or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
"Default" means any event or condition 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 Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% 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 Revolving Loans 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.
"Department" means the applicable Governmental Authority of the state of
domicile of an insurance company responsible for the regulation of said
insurance company.
"Designated Subsidiaries" means FAMI, Fortuna and their respective
Subsidiaries.
"Disposition" means: (a) the sale, lease, conveyance, issuance or other
disposition of property by the Borrower or any Subsidiary, other than sales,
conveyances or other dispositions expressly permitted under Section 7.02(a),
7.02(b) or 7.02(c); and (b) the sale or transfer by the Borrower or any
Subsidiary of the Borrower of any equity securities issued by any Subsidiary of
the Borrower.
"Distribution" means the pro rata distribution by FNF of shares of the
common Capital Stock of the Borrower, representing 17.5% of the outstanding
common Capital Stock of the Borrower, to FNF's shareholders.
"Dividend Capacity" means, for any Test Period, the amounts available as
of the end of the full Fiscal Year ending prior to the end of such Test Period
which could be paid as dividends by the Insurance Subsidiaries to the Borrower
in accordance with the rules and regulations of the applicable Departments under
applicable Law.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiaries" means all Subsidiaries of the Borrower which are
organized and existing under the laws of any state located in the United States.
"EBITDA" means, for any Test Period, for any Person, an amount equal to
the net income for such period plus (a) the following to the extent deducted in
calculating such net income: (i) interest expense for such period, (ii) the
provision for federal, state, local and foreign
8
income taxes payable for such period, (iii) depreciation and amortization
expense (iv) other non-recurring expenses of such person reducing such net
income which do not represent a cash item in such period and (v) cash expenses
(not in excess of $10,000,000) incurred in connection with the Restructuring and
minus (b) to the extent included in calculating such net income, all non-cash
items increasing net income for such period, all determined in accordance with
GAAP or SAP, as applicable.
"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 and the Swing Line Lender, and (ii)
unless an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Equity Interests" means, with respect to any Person, all shares,
interests (including membership and partnership interests), participations or
other equivalent (however designated, whether voting or non-voting) of such
Person's capital, whether now outstanding or issued after the Closing Date.
"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 the 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 the 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 the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums not yet due or due but not delinquent under Section 4007 of ERISA, upon
the Borrower or any ERISA Affiliate.
9
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Revolving Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Exchange" means (i) the exchange of new notes issued by the Borrower
containing the same terms as the Public Debentures, for the Public Debentures in
an aggregate amount equal to the amount of the new notes so exchanged and (ii)
the delivery by the Borrower to FNF of the Public Debentures received by the
Borrower pursuant to such exchange in redemption of the Intercompany Notes.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by any other jurisdiction in which
the Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 10.13), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Foreign Lender's failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.01(a).
"Facility Fee" has the meaning specified in Section 2.08(a).
"FAMI" means Fidelity Asset Management, Inc., a California corporation.
10
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day 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 the next 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 as of August 24, 2005,
among the Borrower, the Administrative Agent and the Arranger.
"FIS" means (a) Fidelity National Information Services, Inc., a Delaware
corporation until such person merges with C Co Merger Sub, LLC, a Delaware
limited liability company and (b) thereafter, Certegy Inc., a Georgia
corporation, which shall be renamed "Fidelity National Information Services,
Inc.", a Georgia corporation.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of 12 consecutive calendar months ending on
December 31.
"FNF" means Fidelity National Financial, Inc., a Delaware corporation.
"FNF Credit Agreement" means the Credit Agreement dated as of the date
hereof, by and among FNF and the financial institutions named therein, providing
for a revolving credit facility to FNF in an initial aggregate amount of up to
$250,000,000.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiaries" means all Subsidiaries of the Borrower which are
not organized and existing under the laws of any state located in the United
States.
Fortuna" means Fortuna Service Company, LLC, a California limited
liability company.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"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
11
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"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,
regulated pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments or incurred in connection with
bankers' acceptances, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than (i) trade and intercompany
accounts payable and accrued expenses, including reinsurance payables, in
the ordinary course of business and (ii) accrued pension costs, employee
benefits and postretirement healthcare obligations);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) the principal amount of Capitalized Lease Liabilities and
purchase money indebtedness;
(g) Synthetic Lease Obligations;
(h) obligations in respect of Redeemable Stock of such Person;
(i) Receivables Facility Attributed Indebtedness; and
12
(j) all Contingent Obligations of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include all
recourse Indebtedness of any partnership, joint venture or limited liability
company in which such Person is a general partner, a joint venturer or a member
and for which such Person has liability. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any Indebtedness which is also a
Contingent Obligation shall be determined as provided in the definition of
Contingent Obligations. If any Indebtedness is limited to recourse against
particular assets, the amount of the Indebtedness shall be deemed to be the
lesser of the fair market value of the applicable assets and the corresponding
Indebtedness. "Indebtedness" shall not include obligations of any Insurance
Subsidiary under or pursuant to Insurance Contracts, Reinsurance Agreement and
Retrocession Agreements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning set forth in Section 10.04(b).
"Information" has the meaning set forth in Section 10.07.
"Insurance Code" means, with respect to any insurance company, the
insurance code of its state of domicile and any successor statute of similar
import, together with the regulations thereunder, as amended or otherwise
modified and in effect from time to time. References to sections of the
Insurance Code shall be construed to also refer to successor sections.
"Insurance Contract" means any insurance contract or policy issued by an
Insurance Subsidiary but shall not include any Reinsurance Agreement or
Retrocession Agreement.
"Insurance Subsidiary" means each Subsidiary of the Borrower identified as
an Insurance Subsidiary (including Subsidiaries of such Subsidiary) on Schedule
5.14 and each other Subsidiary (including Subsidiaries of such Subsidiary) from
time to time in the insurance business as certified by the Borrower in writing
to the Administrative Agent.
"Intercompany Notes" means, collectively, (a) that certain $250,000,000
promissory note payable by the Borrower to FNF, the terms of which are
substantially similar to the terms of the notes described in clause (a) of the
definition of "Public Debentures", and (b) that certain $250,000,000 promissory
note payable by the Borrower to FNF, the terms of which are substantially
similar to the terms of the notes described in clause (b) of the definition of
"Public Debentures".
"Interest Coverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of Cash Flow to Interest Expense for the Test Period ending
at the end of such Fiscal Quarter.
"Interest Expense" means, for any period, the aggregate amount of interest
expense of the Borrower and its Subsidiaries during such period determined in
accordance with GAAP.
13
"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; provided, however, 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.
"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 such other period that is twelve months or less
requested by the Borrower and consented to by all of the Lenders), as selected
by the Borrower in its Revolving Loan Notice; provided that:
(i) 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 next preceding Business Day;
(ii) 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
(iii) no Interest Period shall extend beyond the Maturity Date.
"Interim Statements" means the quarterly financial statement of any
insurance company as required to be filed with the Department, together with all
exhibits or schedules filed therewith, prepared in conformity with SAP.
References to amounts on particular exhibits, schedules, lines, pages and
columns of such interim statements are based on the formats promulgated by the
NAIC for 2005 interim statements for the applicable type of insurance company.
If such format is changed in future years so that different information is
contained in such terms or they no longer exist, it is understood that the
reference is to information consistent with that recorded in the referenced item
in the 2005 interim statement of the insurance company.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests 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, or (c) the purchase or other acquisition (in one
transaction or a series of related transactions) of assets of another Person
that constitute a business unit. 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.
"Investment Grade" means, with respect to ratings by S&P, BBB- and above,
and with respect to ratings by Moody's, Baa3 and above.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority having the force of
Law or, in the case of Section 3.02 and 3.04 only, whether or not having the
force of Law.
"Legal Requirements" means all applicable Laws made by any Governmental
Authority (including any Department) having jurisdiction over the Borrower or a
Subsidiary of the Borrower.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes 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 Borrower
and the Administrative Agent.
"License" means any license, certificate of authority, permit, franchise
or other authorization which is required to be obtained from any Governmental
Authority in connection with the operation, ownership or transaction of
insurance business.
"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, and any financing lease having substantially the same
economic effect as any of the foregoing, and excluding any interests of a lessor
under any operating leases).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, and all
other documents executed and delivered by the Borrower to the Administrative
Agent or any Lender in connection herewith.
"Master Agreement" has the meaning specified in the definition of "Swap
Contract".
15
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Borrower to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan
Document to which it is a party.
"Material Insurance Subsidiary" means a Material Subsidiary that is also
an Insurance Subsidiary.
"Material Subsidiary" means, at any time, (a) each Subsidiary of the
Borrower identified as a Material Subsidiary on Schedule 5.14 and (b) each other
Subsidiary having (on a consolidated basis with its Subsidiaries) at such time
either (i) total (gross) revenues for the Test Period in excess of 5% of the
total (gross) revenues of the Borrower and its Subsidiaries for such Test Period
or (ii) total assets, as of the last day of the preceding Fiscal Quarter, having
a net book value in excess of 5% of the total assets of the Borrower and its
Subsidiaries as of such day, in each case, based upon the Borrower's most recent
annual or quarterly financial statements delivered to the Administrative Agent
under Section 6.01.
"Maturity Date" means the earliest of (a) October 17, 2010 or (b) the date
of termination of the Aggregate Commitments pursuant to Section 2.05, and (c)
the date of termination of the commitment of each Lender to make Loans pursuant
to Section 8.02.
"Maximum Rate" has the meaning set forth in Section 10.09.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the 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.
"NAIC" means the National Association of Insurance Commissioners or any
successor thereto, or in absence of the National Association of Insurance
Commissioners or such successor, any other association, agency or other
organization performing advisory, coordination or other like functions among
insurance departments, insurance commissioners and similar Governmental
Authorities of the various states of the United States toward the promotion of
uniformity in the practices of such Governmental Authorities.
"Net Disposition Proceeds" means, as to any Disposition by a Person,
proceeds in cash as and when received by such Person, net of (a) the direct
costs relating to such Disposition excluding amounts payable to such Person or
any Affiliate of such Person, (b) the amount of all taxes paid or reasonably
estimated to be payable by such Person in connection therewith, but including
the excess, if any, of the estimated taxes payable in connection with such
Disposition over the actual amount of taxes paid, immediately after the payment
of such taxes, (c) amounts required to be applied to repay principal, interest
and prepayment premiums and penalties on Indebtedness secured by a Lien on the
asset which is the subject of such Disposition, and (d) the
16
amount of any reasonable reserve established in accordance with GAAP (i) in
respect of adjustments in the sale price of the asset which is the subject of
such Disposition and (ii) against any liabilities (other than any taxes deducted
pursuant to clause (b) above) associated with the assets sold or disposed of and
retained by the Borrower or any of its Subsidiaries (provided that the amount of
any subsequent reduction of such reserve (other than in connection with a
payment in respect of any such liability) shall be deemed to be Net Disposition
Proceeds realized on the date of such reduction).
"Net Income" means, for any period, (a) for the Borrower's Subsidiaries
which are non-Insurance Subsidiaries, the net income of such non-Insurance
Subsidiaries from continuing operations before extraordinary items (excluding
from the calculation of net income gains and losses from Dispositions of assets)
for that period and (b) for purposes of Section 7.09(a), the net income of the
Borrower and its Subsidiaries from continuing operations before extraordinary
items (excluding from the calculation of net income gains and losses from
Dispositions of assets) for that period.
"Net Worth" means, at any time, the sum of all amounts (without
duplication) which, in accordance with GAAP, would be included in the Borrower's
stockholders' equity (excluding unrealized gains or losses recorded pursuant to
FAS 115) as required to be reported in the Borrower's then most recent
consolidated balance sheet required to be delivered to the Administrative Agent
pursuant to this Agreement.
"Non-Recourse Debt" means, with respect to the Borrower or any of its
Subsidiaries, Indebtedness of the Borrower or any of its Subsidiaries for which
the owner of such Indebtedness has no recourse, directly or indirectly, to the
Borrower or any of its Subsidiaries for the principal, premium, if any, and
interest on such Indebtedness, except pursuant to mortgages, deeds of trust or
security interests in respect of specific land or equipment or other real or
personal property interests of the Borrower or any of its Subsidiaries, and the
proceeds thereof.
"Notes" means, collectively, the Revolving Loan Notes and the Swing Line
Note.
"Obligations" means all advances to, and debts, liabilities and monetary
obligations of, the Borrower to any Lender, the Administrative Agent, any
Indemnitee or any Affiliate of any Lender arising under any Loan Document or any
Swap Contract related to any Loan Document entered into with any Lender or
Affiliate of a Lender so long as, at the time of execution of such Swap
Contracts, such Lender is a party to this Agreement, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising, including interest and fees that
accrue after the commencement by or against the Borrower or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any Person as of
any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
any payment, recourse, repurchase, hold harmless, indemnity or similar
17
obligation of such Person or any of its Subsidiaries in respect of assets
transferred or payments made in respect thereof, other than limited recourse
provisions that are customary for transactions of such type and that neither (i)
have the effect of limiting the loss or credit risk of such purchasers or
transferees with respect to payment or performance by the obligors of the assets
so transferred, based on creditworthiness issues, nor (ii) impair the
characterization of the transaction as a true sale under applicable Laws
(including Debtor Relief Laws); (b) the monetary obligations under any financing
lease or so-called "synthetic", tax retention or off-balance sheet lease
transaction which, upon the application of any Debtor Relief Law to such Person
or any of its Subsidiaries, would be characterized as indebtedness; (c) the
monetary obligations under any sale and leaseback transaction which does not
create a liability on the consolidated balance sheet of such Person and its
Subsidiaries; or (d) any other monetary obligation arising with respect to any
other transaction which (i) upon the application of any Debtor Relief Law to
such Person or any of its Subsidiaries, would be characterized as indebtedness
and is not so characterized prior to such application or (ii) is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheet of such Person and its Subsidiaries
(for purposes of this clause (d), any transaction structured to provide tax
deductibility as interest expense of any dividend, coupon or other periodic
payment will be deemed to be the functional equivalent of a borrowing).
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, other than Excluded Taxes.
"Outstanding Amount" or "Outstandings" means, on any date, the aggregate
outstanding principal amount of Revolving Loans and Swing Line Loans after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA
18
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
"Permitted Accounts Securitization" means, with respect to the Borrower
and its Subsidiaries, any pledge, sale, transfer, contribution, conveyance or
other disposition to a Securitization Vehicle of (a) accounts, chattel paper,
instruments or general intangibles (each as defined in the UCC) arising in
connection with the sale of goods or the rendering of services by such Person,
including, without limitation, the related rights to any finance, interest, late
payment charges or similar charges (such items, the "Receivables"), (b) such
Person's interest in the inventory or goods the sale of which by such Person
gave rise to such Receivable (but only to the extent such inventory or goods
consists of returned or repossessed inventory or goods, if any), (c) all other
guaranties, letters of credit, insurance and security interests or liens
purporting to secure or support payment of such Receivable, (d) all insurance
contracts, service contracts, books and records associated with such Receivable,
(e) any lockbox, post office box or similar deposit account related solely to
the accounts being transferred, (f) cash collections and cash proceeds of such
Receivable and (g) any proceeds of the foregoing (all such items referenced in
clauses (a) through (g), the "Transferred Assets") which such sale, transfer,
contribution, conveyance or other disposition is funded by the Securitization
Vehicle in whole or in part by borrowings or the issuance of instruments or
securities that are paid principally from the cash derived from such Transferred
Assets; provided that the aggregate amount of gross proceeds available to the
Borrower or any Subsidiary in connection with all such transactions shall not at
any time exceed the greater of (i) $100,000,000 and (ii) 3% of Net Worth and
provided further that such sale, transfer, contribution, conveyance or other
disposition and any Indebtedness arising from such sale, transfer, contribution,
conveyance or other disposition shall be without recourse to the Borrower or any
of its Subsidiaries except with respect to (i) reductions in the balance of such
Receivable as a result of any defective or rejected goods or set off by the
obligor of such Receivable transferred by such Person, or (ii) breaches of
representations or warranties by such Person in any agreement, document or
instrument executed by such Person in connection with such pledge, sale,
transfer, contribution, conveyance or disposition.
"Permitted Acquisition" means, at any time of determination, any
Acquisition by the Borrower or any of its Subsidiaries with respect to which
each of the following requirements are met:
(a) such Acquisition has been approved and recommended by the board
of directors or general partner (or similar entity) of the Person to be
acquired or which owns the assets of the Person be acquired;
(b) prior to and after giving effect to such Acquisition, no Default
or Event of Default (including without limitation under the provisions of
Section 7.09) shall have occurred and be continuing, or would result
therefrom; and
(c) the business of the Person or assets to be acquired comprises
the title insurance business (of the types currently carried on by the
Borrower and its Subsidiaries
19
on the Closing Date), a non-insurance business reasonably related to the
title insurance business, and/or businesses or assets reasonably related
to any of the foregoing.
"Permitted Liens" has the meaning specified in Section 7.01.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the 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.
"Primary Investments" means portfolio investments in the ordinary course
of business by the Borrower or any of its Subsidiaries in any of the following:
(a) operating deposit accounts maintained in the Borrower's name
with FDIC member institutions;
(b) Cash Equivalents; and
(c) Approved Securities.
"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 Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, 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. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Public Debentures" means (a) those certain 7.30% Notes Due August 15,
2011, made by FNF, dated as of August 20, 2001, in the aggregate principal
amount of $250,000,000 and (b) those certain 5.25% Notes Due March 15, 2013,
made by FNF, dated as of March 11, 2003, in the aggregate principal amount of
$250,000,000.
"Public Lender" has the meaning specified in Section 6.02.
"Rating Agency" means S&P or Moody's, collectively, the "Rating Agencies".
"Receivables" has the meaning specified in the definition of Permitted
Accounts Securitization.
20
"Receivables Facility Attributed Indebtedness" means the amount of
recourse obligations outstanding under a receivables purchase facility on any
date of determination.
"Redeemable Stock" means any Equity Interests of the Borrower or any of
its Subsidiaries which prior to October 31, 2010 is or may be (a) mandatorily
redeemable, (b) redeemable at the option of the holder thereof or (c)
convertible into Indebtedness.
"Register" has the meaning set forth in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Reinsurance Agreement" means any agreement, contract, treaty or other
arrangement whereby one or more insurers, as reinsurers, assume liabilities of
one or more insurance or reinsurance companies.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing, conversion or continuation of Revolving Loans, a Revolving Loan
Notice, and (b) with respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, at least two
Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans has been terminated pursuant to Section 8.02, at
least two Lenders holding in the aggregate more than 50% of the Outstandings
(with the aggregate amount of each Lender's risk participation and funded
participation in Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); provided that the Commitment of, and the portion
of the 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,
executive vice presidents, chief financial officer, treasurer, controller,
secretary or assistant secretary of the Borrower. Any document delivered
hereunder that is signed by a Responsible Officer of the Borrower shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of the Borrower and such Responsible
Officer shall be conclusively presumed to have acted on behalf of the Borrower.
"Restricted Payments" has the meaning specified in Section 7.06.
"Restructuring" means the restructuring involving the contribution by FNF
of its title insurance businesses to the Borrower and transactions related
thereto, including but not limited to, the Distribution, the issuance of the
Intercompany Notes and the Borrower and FNF entering
21
into a separation agreement, a corporate services agreement, a tax matters
agreement, an employee matters agreement and other agreements related to the
Restructuring.
"Retrocession Agreement" means any agreement, contract, treaty or other
arrangement whereby one or more insurers or reinsurers, as retrocessionaires,
assume liabilities of reinsurers under a Reinsurance Agreement or other
retrocessionaires under another Retrocession Agreement.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit C.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) 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.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"SAP" means, as to any insurance company, the statutory accounting
practices prescribed or permitted by the Department, or in the event that the
Department fails to prescribe or address such practices, NAIC guidelines.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secondary Investments" means Investments by the Borrower or any of its
Subsidiaries in the ordinary course of business not constituting Primary
Investments or Acquisitions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"Securitization Vehicle" means one or more special purpose vehicles that
are, directly or indirectly, wholly-owned Subsidiaries of the Borrower and are
Persons organized for the limited purpose of entering into a Permitted Accounts
Securitization and whose structure is designed to insulate such vehicle from the
credit risk of the Borrower and its other Subsidiaries.
22
"Solvent" means, as to any Person at any time, that (a) the fair value of
the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section 548
of the Bankruptcy Code and for purposes of the New York Uniform Fraudulent
Transfer Act; (b) the present fair saleable value of the property 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
is able to realize upon its property and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature in
the normal course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (e) 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 unreasonably
small capital.
"Special Dividend" means a one-time special dividend to be paid by the
Borrower to FNF from the proceeds of the initial Credit Extension hereunder in
an amount of up to $150,000,000.
"Subsidiary" of a Person means any Person of which more than 50% of the
Voting Stock, or other Equity Interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"Surplus" shall mean, for any Insurance Subsidiary, on any date, the
amount (determined in accordance with SAP) of such Person's surplus as at the
last day of the most recently ending fiscal quarter of such Person.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-
23
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" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.03.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.03.
"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 2.03(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.03(b), which, if in writing, shall be substantially in the form of
Exhibit B.
"Swing Line Note" means a promissory note made by the Borrower in favor of
the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit D.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Test Period" means, for any determination under this Agreement, the four
consecutive Fiscal Quarters of the Borrower then last ended.
"Total Capitalization" means, at any time, the sum of Net Worth and Total
Debt.
"Total Debt" means, at any time, with respect to the Borrower and its
Subsidiaries, the sum, without duplication, of (a) Applicable Debt at such time,
(b) noncontingent reimbursement or payment obligations in respect of the items
referred to in clause (b) of the definition of Indebtedness contained in this
Agreement at such time, and (c) Contingent Obligations in respect of Applicable
Debt of another Person at such time, minus (d) Non-Recourse Debt of the
Designated Subsidiaries.
24
"Total Debt to Total Capitalization Ratio" means, at any time, the ratio
of Total Debt to Total Capitalization at such time.
"Transferred Assets" has the meaning specified in the definition of
Permitted Accounts Securitization.
"Type" means, with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Voting Stock" means, with respect to any Person, shares of such Person's
Equity Interests having the right to vote for the election of directors or other
governing body of such Person under ordinary circumstances.
"Wholly-Owned Subsidiary" means any Person in which (other than directors'
qualifying Equity Interests required by Law) 100% of the Voting Stock and 100%
of the Equity Interests of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of record, by
the Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or both.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." The word "will" shall be construed to have
the same meaning and effect as the word "shall." Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (iii) the words "herein," "hereof" and
"hereunder," and words of similar import when used in any Loan Document, shall
be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi)
25
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
(d) For purposes of Section 8.01, a breach of a financial covenant
contained in Section 7.09 shall be deemed to have occurred as of any date of
determination thereof by the Administrative Agent or as of the last day of any
specified measuring period, regardless of when the financial statements
reflecting such breach are delivered to the Administrative Agent and the
Lenders.
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) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP or SAP, as
applicable, applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited Financial
Statements and the December 31, 2004 Annual Statements, as the case may be,
except for changes authorized by GAAP and concurred in by the Borrower's
Registered Public Accounting Firm (but subject to clause (b) of this Section
1.03), and except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP or SAP or any change in accounting
treatment or practices required or authorized by any Governmental Authority, as
applicable, would affect the computation of any financial ratio or requirement
set forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP or SAP or required by
any Governmental Authority, as applicable (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP or SAP, as
applicable, prior to such change therein and (ii) the Borrower shall provide to
the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP or SAP or required by
any Governmental Authority, as applicable.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such
26
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) and shall exclude the
financial results of any Person which, solely due to FASB Interpretation No. 46,
GAAP requires the Borrower to consolidate in its financial statements, but only
to the extent that the owners of such Person's Indebtedness have no recourse,
directly or indirectly, to the Borrower or any of its Subsidiaries for the
principal, premium, if any, and interest on such Indebtedness.
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Revolving Borrowing, (i) the Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.04, and reborrow under this Section 2.01. Revolving
Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF REVOLVING LOANS.
(a) Each Revolving Borrowing, each conversion of Revolving Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the 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 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on
the requested date of any Borrowing of Base Rate Loans.
Each telephonic notice by the Borrower pursuant to this Section 2.02(b) must be
confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(b)
and (c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Revolving Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Revolving Borrowing, a
conversion of Revolving 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 Revolving Loans to be borrowed, converted or continued, (iv)
the Type of Revolving Loans to
27
be borrowed or to which existing Revolving Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Revolving Loan in a Revolving Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion
or continuation, then the applicable Revolving Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Revolving 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 Revolving Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Revolving Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Revolving Borrowing,
each Lender shall make the amount of its Revolving Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Revolving Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date the Revolving Loan Notice with respect to such
Borrowing is given by the Borrower, there are Swing Line Loans outstanding, then
the proceeds of such Borrowing shall be applied, first, to the payment in full
of any such Swing Line Loans, and second, to the 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. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower 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 Borrower 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 Revolving Borrowings, all conversions of
Revolving Loans from one Type to the other, and all continuations of Revolving
Loans as the same Type, there shall not be more than five Interest Periods in
effect with respect to Revolving Loans.
28
2.03 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.03, to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Revolving Loans of the Lender acting as Swing Line Lender, may exceed the amount
of such Lender's Commitment; provided, however, that after giving effect to any
Swing Line Loan, (i) the Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Commitment, and provided,
further, that the Borrower 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 Borrower may borrow under
this Section 2.03, prepay under Section 2.04, and reborrow under this Section
2.03. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby, subject
to the condition set forth in Section 2.03(a)(ii) above, 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 the
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 $1,000,000 or a whole multiple of $100,000 in excess
thereof), 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 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 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 first proviso to the first sentence of Section
2.03(a), or (B) that one or more of the applicable conditions specified in
Article IV 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 Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.
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(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 Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf),
that each 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 Revolving Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans. The Swing
Line Lender shall furnish the Borrower with a copy of the applicable
Revolving Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Revolving 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 Revolving Loan Notice,
whereupon, subject to Section 2.03(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the 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 Borrowing in accordance with Section 2.03(c)(i) because
the conditions to borrowing in Section 4.02 have not been satisfied, 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 Lenders fund its risk participation in the relevant Swing Line
Loan and each Lender's payment to the Administrative Agent for the account
of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed
payment in respect of such participation.
(iii) If any 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
2.03(c) by the time specified in Section 2.03(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 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 Lender's obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.03(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing,
including whether or
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not the conditions set forth in Section 4.02 shall have been satisfied. No
such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with
interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any 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
10.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each 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 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 Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Loan or risk participation pursuant to
this Section 2.03 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 Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.04 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Revolving Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) one Business Day
prior to any date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $3,000,000 or a whole multiple of
$1,000,000 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 Type(s) of Revolving Loans to be prepaid. The
Administrative Agent will promptly notify each 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 the Borrower, the 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
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Rate Loan shall be accompanied by all accrued interest thereon, together with
any additional amounts required pursuant to Section 3.05. Each such prepayment
shall be applied to the Revolving Loans of the Lenders in accordance with their
respective Pro Rata Shares.
(b) The Borrower 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
(i) 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 (ii) any such
prepayment shall be in a minimum principal amount of $100,000, or, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
(c) If for any reason the Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans in an
aggregate amount equal to such excess.
2.05 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. three Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Outstandings would exceed the
Aggregate Commitments, (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess and (v) the Borrower shall not, prior to the Maturity
Date, at any time the lenders under the FNF Credit Agreement have outstanding
commitments to lend thereunder, terminate the Aggregate Commitments in whole or
reduce the Aggregate Commitments to an amount less than $200,000,000, provided
that the Borrower may terminate the Aggregate Commitments in whole
simultaneously with the termination in whole by the lenders under the FNF Credit
Agreement of their outstanding commitments to lend thereunder. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All Facility Fees accrued until the closing
date of any termination of the Aggregate Commitments shall be paid on the
closing date of such termination.
2.06 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date 10 days after such Loan is made and (ii) the Maturity Date.
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2.07 INTEREST.
(a) Subject to the provisions of subsection (b) below, (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 Rate; (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; 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.
(b) If any amount payable by the Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
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.
2.08 FEES.
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
("Facility Fee") equal to the Applicable Rate times the actual daily amount of
the Aggregate Commitments (or, if the Aggregate Commitments have terminated, on
the Outstanding Amount of all Loans), regardless of usage. The Facility Fee
shall accrue at all times during the Availability Period (and thereafter so long
as any Loans remain outstanding), including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing December 31, 2005, and on the Maturity Date (and, if
applicable, thereafter on demand). The Facility Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay to the Arranger, the Administrative
Agent and each Lender for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. Such fees shall be fully earned when
paid and shall not be refundable for any reason whatsoever.
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2.09 COMPUTATION OF INTEREST AND FEES. All computations of the Facility
Fee and 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 2.11(a), bear interest for one day.
2.10 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
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
Borrower 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 Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Revolving Loan Note and/or a Swing Line
Note, as applicable, 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 subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in 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.
2.11 PAYMENTS GENERALLY.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
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
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. Subject to the
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provisions of the definition of "Interest Period", if any payment to be made by
the Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has
made such share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same
or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
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(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Revolving Loans and to fund participations in Swing Line Loans
are several and not joint. The failure of any Lender to make any Revolving 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 Revolving Loan or purchase its participation.
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.12 SHARING OF PAYMENTS. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Revolving Loans made by it, or the participations
in Swing Line Loans held by it resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Revolving Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Revolving Loans and subparticipations in Swing Line Loans
of the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Revolving Loans or subparticipations in Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to
36
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, within 30 days after demand therefor
accompanied by the certificate described below in this clause (c), for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent or such Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate, showing the calculation of the amount owed in reasonable detail,
as to the amount of such payment or liability delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the
37
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank"
within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent or any
Lender determines that it has received a refund of any Taxes or Other Taxes as
to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section
with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower,
upon the request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay
38
such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.
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 interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower 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 Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the 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, the 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.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) 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
(c) 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, the Administrative Agent will promptly so
notify the Borrower 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 Borrower 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
Revolving Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with
39
or for the account of, or credit extended or participated in by, any
Lender (except any reserve requirement);
(ii) subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Eurodollar Rate Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01 and
the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender); or
(iii) impose on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or any
other amount) then, within 30 days after receipt of a request of such Lender
accompanied by the certificate described in clause (c) below, the Borrower will
pay to such Lender such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered, provided that
no Lender shall make a demand for payment hereunder unless such Lender is also
making demand for payment on similarly situated borrowers.
(b) Capital Requirements. If any Lender determines that any Change in Law
affecting such Lender or any Lending Office of such Lender or such Lender's
holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's capital or on the capital
of such Lender's holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered, provided that no
Lender shall make a demand for payment hereunder unless such Lender is also
making demand for payment on similarly situated borrowers.
(c) Certificates for Reimbursement. A certificate of a Lender setting
forth in reasonable detail the computation of the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in subsection (a) or (b) of this Section shall be delivered to the Borrower
contemporaneously with any demand for payment and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender's right to demand such compensation,
provided that the Borrower shall not be required to compensate a Lender pursuant
to the foregoing provisions of this Section for any
40
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 10 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 10 days from receipt of
such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, setting forth in reasonable detail
the amount payable to such Lender, the Borrower 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, but excluding any payment or prepayment as a result
of a Lender's failure to make a payment pursuant to Section 2.11(b)(i));
(b) any failure by the 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 the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
including any loss, cost or expense (excluding loss of anticipated profits)
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
41
3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to
Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Sections 3.02 or 3.04, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, the Borrower may replace such Lender in accordance
with Section 10.13.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of 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, electronic copies or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the Borrower, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent and its
legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Borrower as of the Closing Date as the Administrative Agent may require
evidencing the identity, authority and capacity of each such Responsible
Officer authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which the Borrower is a party;
42
(iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that the Borrower is duly organized or
formed, and that the Borrower as of the Closing Date is validly existing
and in good standing in its state of incorporation or organization and/or
domicile;
(v) a favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Borrower, addressed to the Administrative Agent and each Lender, as to
matters concerning the Borrower and the Loan Documents (including
enforceability of the Loan Documents under New York law) as the Required
Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower as of
the Closing Date either (A) confirming that all consents, licenses and
approvals required in connection with the execution, delivery and
performance by the Borrower have been obtained, or (B) stating that no
such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, and (B) that there has been no event or circumstance
since the date of the formation of the Borrower that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) the current Debt Ratings, which must be
Investment Grade;
(viii) documentation evidencing completion of all aspects of the
Restructuring other than the Exchange, in form and substance satisfactory
to the Administrative Agent;
(ix) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the Swing Line Lender or the
Required Lenders reasonably may require.
(b) Any fees (including upfront fees to the Lenders) required to be paid
on or before the Closing Date shall have been paid, and the Fee Letter shall be
in full force and effect.
(c) The Closing Date shall have occurred on or before October 21, 2005.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving 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 the Borrower contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in
43
connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and except
that for purposes of this Section 4.02, the representations and warranties
contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) through
(f), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension.
(c) The Administrative Agent and, if applicable, 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 Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. The
Borrower and each of its Material Subsidiaries (a) is duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own 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, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, except in each
case referred to in clause (c), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Borrower of each Loan Document to which it is party, have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law, except with respect
of clause (c), to the extent such violation could not reasonably be expected to
have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Agreement or any other Loan
44
Document, other than (a) such that have been obtained and are in full force and
effect, (b) those the failure of which could not reasonably be expected to have
a Material Adverse Effect and (c) with respect to execution, SEC filings.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by the Borrower that is a party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of the Borrower that is a party thereto, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by Debtor Relief Laws and general equitable principles.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities
required to be shown by GAAP, direct or contingent, of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments, Indebtedness and Contingent Obligations.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated June 30, 2005, and the related unaudited consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries not reflected on the June 30, 2005 financial statements referred to
above, incurred after the date of such financial statements but prior to the
Closing Date, including liabilities for material commitments, Indebtedness and
Contingent Obligations.
(c) The December 31, 2004 Annual Statement of each Insurance Subsidiary
and the June 30, 2005 Interim Statements of each Insurance Subsidiary (i) were
prepared in accordance with SAP consistently applied through the periods covered
thereby, except as otherwise expressly noted therein; (ii) fairly present the
financial condition of each Insurance Subsidiary as of the date thereof and
their results of operations for the period covered thereby, subject, in the case
of such Interim Statements for clauses (i) and (ii), to the absence of footnotes
and normal year-end adjustments; and (iii) show all material indebtedness and
other liabilities required to be shown by SAP, direct or contingent, of each
Insurance Subsidiary as of the date of such financial statements, including
liabilities for taxes, material commitments, Indebtedness and Contingent
Obligations.
45
(d) Since the date of formation of the Borrower, there has been no event
or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.
(e) To the knowledge of the Responsible Officers of the Borrower, since
the date of the Audited Financial Statements, no Internal Control Event has
occurred, the result of which could reasonably be expected to have a Material
Adverse Effect.
(f) Neither the Borrower nor any of its Subsidiaries has any Off-Balance
Sheet Liabilities except those permitted pursuant to Section 7.04(l).
5.06 LITIGATION. Except (a) for liabilities of Insurance Subsidiaries
under Insurance Contracts, Reinsurance Agreement and Retrocession Agreements and
(b) as set forth in Schedule 5.06, there are no actions, suits or proceedings
pending or, to the knowledge of a Responsible Officer of the Borrower,
threatened in writing, at Law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues that (i) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (ii) either individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and indefeasible title to, or valid leasehold
interests in, their respective real properties, except for such defects in title
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of the Borrower and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries have
complied with all Environmental Laws, except for any Environmental Laws the
non-compliance therewith could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.10 INSURANCE. The Borrower and its Subsidiaries maintain insurance in
full force and effect with respect to its properties and business in such
amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid or made provision for payment of all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those which are (a) being contested in good faith by appropriate proceedings
46
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP or SAP, as applicable, or (b) immaterial. There is no
proposed tax assessment against the Borrower or any Subsidiary that would be
reasonably likely to have a Material Adverse Effect.
5.12 ERISA COMPLIANCE. Except as specifically disclosed on Schedule 5.12:
(a) Each Plan is in compliance with the applicable provisions of ERISA,
the Code and other Federal or state Laws except where noncompliance 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 received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required material contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
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 any material Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in
such material liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of
ERISA.
5.13 INTELLECTUAL PROPERTY, LICENSES, ETC. The Borrower and each of its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights that are used by the Borrower or such Subsidiary in connection with the
operation of their respective businesses, without conflict with the rights of
any other Person, except where the failure to have any such rights could not
reasonably be expected to have a Material Adverse Effect.
5.14 SUBSIDIARIES. The Borrower has no Subsidiaries other than those
specifically disclosed on Schedule 5.14 and, after the Closing Date, those
permitted in accordance with Section 7.03, and there are no restrictions on the
Borrower or any of its Material Subsidiaries which prohibit or otherwise
restrict (i) the ability of the Borrower or any of its Material Subsidiaries to
grant any Liens on any of their respective assets (other than with respect to
assets covered by Capital Leases or purchase money security interests) or (ii)
the transfer of cash or
47
other assets from any Material Subsidiary to the Borrower, other than
prohibitions or restrictions existing under or by reason of any Loan Document,
the Public Debentures (but only to the extent such Public Debentures require
that the holders thereof be granted a pari-passu Lien if a Lien is granted to
another Person), Legal Requirements, customary non-assignment provisions in
contracts entered into in the ordinary course of business and consistent with
past practices and Department policies and practices that restrict the ability
of Insurance Subsidiaries to grant Liens on, pledge or transfer assets.
5.15 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is engaged or will
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" "margin stock"
within the respective meanings of each of the quoted terms under Regulation U of
the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect. No part of the proceeds of any Credit Extensions
hereunder will be used for "purchasing" or "carrying" "margin stock" as so
defined or for any purpose which violates, or which would be inconsistent with,
the provisions of Regulations U or X of such Board of Governors. Neither the
Borrower nor any of its Subsidiaries (a) is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, or (b) is or is required to
be registered as an "investment company" under the Investment Company Act of
1940.
5.16 DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other factual information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading on the date when made; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
5.17 COMPLIANCE WITH LAWS. The Borrower and each of its Subsidiaries is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.18 SOLVENT. The Borrower is, and the Borrower and its Subsidiaries are,
on a consolidated basis, Solvent.
48
5.19 LICENSES. No License, the loss of which could reasonably be expected
to have a Material Adverse Effect, is the subject of a proceeding for suspension
or revocation which is reasonably likely to result in a suspension or
revocation. To the knowledge of the Responsible Officers of the Borrower, there
is no sustainable basis for such suspension or revocation of any License, the
loss of which could reasonably be expected to have a Material Adverse Effect.
5.20 EMPLOYEE MATTERS. There are no strikes, work stoppages, election or
decertification petitions or proceedings, unfair labor charges, equal employment
opportunity proceedings, wage payment or material unemployment compensation
proceedings, material workers' compensation proceedings or other material
labor/employee related controversies pending or, to the knowledge of the
Responsible Officers of the Borrower, threatened between the Borrower or any of
its Subsidiaries and any of their respective employees, other than employee
grievances and other proceedings which could not in the aggregate reasonably be
expected to have a Material Adverse Effect.
5.21 INSURANCE SUBSIDIARIES. All of the Annual Statements and Interim
Statements, together with any other financial or similar statements of the
Material Insurance Subsidiaries provided to the Administrative Agent, are
prepared in accordance with SAP and present fairly in accordance with SAP the
financial position of such Material Insurance Subsidiary for the period then
ended.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower
agrees with the Administrative Agent and the Lenders that:
6.01 FINANCIAL STATEMENTS. The Borrower shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative
Agent:
(a) as soon as available, but not later than 105 days after the end of
each Fiscal Year, a copy of the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and applicable
Securities Laws and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit and (ii) beginning with the Fiscal Year ending December 31, 2006, an
attestation report of such Registered Public Accounting Firm as to the
Borrower's internal controls pursuant to Section 404 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇, provided
that 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;
49
(b) as soon as available, but not later than 60 days after the end of each
of the first three Fiscal Quarters of each fiscal year, a copy of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day and ending on
the last day of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (except for the absence of footnotes and
subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Borrower and the Subsidiaries as
of the date thereof;
(c) as soon as available, but not later than 105 days after the end of
each Fiscal Year, a copy of an unaudited consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidating statement of income for such year, certified by a Responsible
Officer as having been developed and used in connection with preparation of the
financial statements referred to in Section 6.01(a);
(d) as soon as available, but not later than 60 days after the end of each
of the first three Fiscal Quarters of each fiscal year, a copy of the unaudited
consolidating balance sheets of the Borrower and its Subsidiaries, and the
related consolidating statements of income for such quarter, all certified by a
Responsible Officer as having been developed and used in connection with the
preparation of the financial statements referred to in Section 6.01(b);
(e) as soon as available, but not later than 105 days after the end of
each Fiscal Year, a copy of the Annual Statement of each Material Insurance
Subsidiary for such Fiscal Year prepared in accordance with SAP and accompanied
by the certification of the chief financial officer or treasurer of such
Material Insurance Subsidiary that such Annual Statement presents fairly in
accordance with SAP the financial position of such Material Insurance Subsidiary
for the period then ended;
(f) as soon as possible, but no later than 60 days after the end of each
of the first three Fiscal Quarters of each fiscal year, a copy of the quarterly
Interim Statement of each Material Insurance Subsidiary for each such Fiscal
Quarter, all prepared in accordance with SAP and accompanied by the
certification of the chief financial officer or treasurer of such Insurance
Subsidiary that all such quarterly statements present fairly in accordance with
SAP the financial position of such Insurance Subsidiary for the period then
ended; and
(g) within 105 days after the close of each Fiscal Year, a copy of each
Material Insurance Subsidiary's "Statement of Actuarial Opinion" which is
provided to the Department (or equivalent information should the Department no
longer require such a statement) as to the adequacy of loss reserves of such
Material Insurance Subsidiary, which opinion shall be in the format prescribed
by the Insurance Code.
6.02 CERTIFICATES; OTHER INFORMATION. The Borrower shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative
Agent:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.01(a), a certificate of its independent certified public
accountants stating that in making
50
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default under Section 7.09, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a Compliance Certificate executed by a Responsible
Officer;
(c) promptly, copies of all financial statements and material reports that
the Borrower or any of its Material Subsidiaries sends or may make to, or file
with, any applicable Department;
(d) the following certificates and other information:
(i) not later than 60 days after received by a Material Subsidiary
or the Borrower, a copy of any final financial examination reports or
market conduct examination reports issued by a Governmental Authority with
respect to any Material Subsidiary of the Borrower (and the Borrower,
should it at any time engage or become involved in the business of
insurance), relating to the insurance business of each Material Subsidiary
or, if applicable, the Borrower (when, and if, prepared) and of any and
all interim reports (but only if the items disclosed therein could
reasonably be expected to have a Material Adverse Effect); provided that
such Subsidiary or, if applicable, the Borrower shall not have to deliver
any interim or final report hereunder if (A) the items described
in such report could not reasonably have a Material Adverse Effect or (B)
a final report is issued and delivered to the Administrative Agent within
90 days of such interim report;
(ii) within five Business Days of the receipt by a Responsible
Officer of the Borrower of such notice, notice of the actual suspension,
termination or revocation of any material license of the Borrower or any
of its Material Subsidiaries by any Governmental Authority or notice from
any Governmental Authority notifying the Borrower or any of its Material
Subsidiaries of a hearing relating to such a suspension, termination or
revocation, including any request by a Governmental Authority which
commits the Borrower or any of its Material Subsidiaries to take, or
refrain from taking, any action or which otherwise could reasonably be
expected to have a Material Adverse Effect;
(iii) within five Business Days of the receipt by a Responsible
Officer of the Borrower of such notice, notice of any material pending or
threatened investigation or regulatory proceeding (other than routine
periodic investigations or reviews) by any Governmental Authority
concerning the business practices or operations of the Borrower or any of
its Material Subsidiaries which is reasonably likely to have a Material
Adverse Effect; and
(iv) promptly upon the receipt by a Responsible Officer of the
Borrower of such notice, notice of any actual material changes in the
Insurance Code governing the investment or dividend practices of insurance
companies domiciled in any of the states in which any Insurance Subsidiary
is domiciled;
(e) promptly upon (i) the acquisition by the Borrower or any of its
Subsidiaries of any Person which engages in any material respect in an insurance
business or (ii) any Subsidiary of
51
the Borrower or any of its Subsidiaries becoming engaged in any material respect
in an insurance business, a certificate of a Responsible Officer stating that
such Person or Subsidiary shall be deemed to be an "Insurance Subsidiary" for
all purposes of each Loan Document;
(f) promptly, but in any event within five Business Days of a Responsible
Officer of the Borrower having knowledge thereof, notice of the occurrence of
any Internal Control Event which could reasonably be expected to have a Material
Adverse Effect;
(g) promptly, but in any event within five Business Days of a Responsible
Officer of the Borrower having knowledge thereof, notice of any change in a Debt
Rating by ▇▇▇▇▇'▇ or S&P;
(h) promptly, but in any event within five Business Days of having
knowledge thereof, notice of any change in the "financial strength" rating of
any Material Insurance Subsidiary by ▇▇▇▇▇'▇ or S&P;
(i) promptly after the same are available, copies of each (i) annual
report, proxy or financial statement or, at the Administrative Agent's request,
copies of each other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports
(including Forms 10K, 10Q and 8K) and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto and (ii) without duplication, copies of
any certifications or affidavits required by the SEC in connection with the
filing of Forms 10K, 10Q and 8K;
(j) promptly, and in any event within five Business Days after receipt
thereof by the Borrower or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of the Borrower or any Material Subsidiary thereof; and
(k) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Material Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) through (f)
or Section 6.02(i) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on SyndTrak Online
or another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent for any
Lender that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
52
such Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on SyndTrak Online or another
similar electronic system (the "Platform"), it being understood that the
Administrative Agent and the Arranger are utilizing SyndTrak Online with the
expressed understanding that neither the Administrative Agent nor the Arranger
shall be liable for any release of confidential information to unauthorized
parties as a result of the operation or administration of SyndTrak Online and
(b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the Borrower
or its securities) (each, a "Public Lender"). The Borrower hereby agrees that
(w) all Borrower Materials that are to be made available to Public Lenders shall
be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean
that the word "PUBLIC" shall appear prominently on the first page thereof; (x)
by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger and the Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section
10.07); (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 Arranger 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" and shall not post such Borrower
Materials on the Platform for Public Investors.
6.03 NOTICES. The Borrower shall promptly notify the Administrative Agent
after a Responsible Officer of the Borrower obtains knowledge of:
(a) (i) the occurrence of any event that constitutes a Default or Event of
Default, (ii) any litigation or governmental proceeding pending against the
Borrower or any of its Subsidiaries (x) in which the amount of damages claimed
is 5% of Net Worth (or its equivalent in another currency or currencies) or more
as to the Borrower and all Subsidiaries other than Insurance Subsidiaries (after
giving effect to any applicable insurance coverage) or (y) which if adversely
determined could reasonably be expected to have a Material Adverse Effect;
(b) the occurrence of any of the following events affecting the Borrower
or any ERISA Affiliate and deliver to the Administrative Agent a copy of any
notice with respect to
53
such event that is filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Borrower or any ERISA Affiliate with respect
to such event:
(i) an ERISA Event;
(ii) a material increase in the contributions to, or the Unfunded
Pension Liability of, any Pension Plan since the last annual valuation
date;
(iii) the adoption of, or the commencement of contributions to, any
Plan subject to Section 412 of the Code by the Borrower or any ERISA
Affiliate; or
(iv) the adoption of any amendment to a Plan subject to Section 412
of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability;
(c) of any change in accounting policies or financial reporting practices
by the Borrower or any of its consolidated Material Subsidiaries that affect the
calculation of the financial covenants set forth in Section 7.09;
(d) of the receipt of any notice from any Governmental Authority of the
institution of any disciplinary proceedings against or in respect of any
Insurance Subsidiary, or the issuance of any order, the taking of any action or
any request for an extraordinary audit for cause by any Governmental Authority
which could reasonably be expected to have a Material Adverse Effect; or
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 PRESERVATION OF EXISTENCE, ETC. The Borrower shall, and shall cause
each of its Material Subsidiaries to, (a) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.02; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; (c) take all reasonable action to
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect; and (d) in the case of the Borrower, engage in
no business (other than as conducted on the Closing Date) except to hold Equity
Interests of its Subsidiaries.
54
6.05 MAINTENANCE OF PROPERTIES. The Borrower shall, and shall cause each
of its Subsidiaries to, (a) maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted and except in
connection with transactions permitted by Section 7.02 except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect; and
(b) make all necessary repairs thereto and renewals and replacements thereof, in
each case except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.06 MAINTENANCE OF INSURANCE. The Borrower shall, and shall cause each of
its Material Subsidiaries to, maintain with financially sound and reputable
insurance companies which are not Affiliates of the Borrower insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.07 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause each of its
Subsidiaries to, comply in all material respects with the requirements of all
Laws, orders, writs, injunctions and decrees applicable to it or to its business
or property, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.08 BOOKS AND RECORDS. The Borrower shall, and shall cause each of its
Subsidiaries to, (a) maintain proper books of record and account, in which full,
true and correct entries sufficient to prepare financial statements in
conformity with GAAP or SAP, as applicable, consistently applied, shall be made
of all financial transactions and matters involving the assets and business of
the Borrower or such Subsidiary, as the case may be; and (b) maintain such books
of record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
6.09 INSPECTION RIGHTS. The Borrower shall, and shall cause each of its
Material Subsidiaries to, permit representatives and independent contractors of
the Administrative Agent and each Lender to visit and inspect any of their
respective 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 such reasonable times during normal business hours
and as often as may be reasonably desired (provided that, so long as no Default
or Event of Default exists, the Borrower shall only be liable for the expenses
of the Administrative Agent, and only in connection with one such inspection by
the Administrative Agent during each calendar year), upon reasonable advance
notice to the Borrower; provided, however, that when a Default or 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 Borrower at any time during normal business
hours and without advance notice.
55
6.10 USE OF PROCEEDS. The Borrower shall use the proceeds of the Credit
Extensions to fund payment of the Special Dividend and for general corporate
purposes, including Permitted Acquisitions and Capital Expenditures, not in
contravention of any Law or of any Loan Document. 6.11 PAYMENT OF TAXES. The
Borrower shall, and shall cause each of its Subsidiaries to, pay and discharge
all material taxes, assessments and governmental charges or levies upon it or
upon its income or profits, or upon any properties belonging to it, prior to the
date on which material penalties attach thereto, and all lawful material claims
that, if unpaid, could reasonably be expected to become a Lien upon any of its
material properties; provided that neither the Borrower nor any of its
Subsidiaries shall be required hereunder to pay any such tax, assessment,
charge, levy or claim that is being contested in good faith and by proper
proceedings if it has maintained adequate reserves (in the good faith judgment
of the management of the Borrower) with respect thereto in accordance with GAAP
or SAP, as appropriate.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied:
7.01 LIENS. The Borrower shall not, and shall not permit its Subsidiaries
to, directly or indirectly, 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 ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental charges which
are not delinquent or remain payable without penalty, or to the extent that
non-payment thereof is permitted by Section 6.11;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith by appropriate actions;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds, reinsurance
agreements and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed
money);
(e) Liens existing on the Closing Date and identified on Schedule 7.01;
(f) Liens consisting of pledges or deposits of cash or securities made by
any Insurance Subsidiary as a condition to obtaining or maintaining any licenses
issued to it by, or to satisfy the requirements of, any Department;
56
(g) Liens consisting of judgment or judicial attachment Liens (other than
arising as a result of claims under or related to Insurance Contracts,
Retrocession Agreements or Reinsurance Agreements); provided that the
enforcement of such Liens is effectively stayed or fully covered by insurance
and all such Liens in the aggregate at any time outstanding for the Borrower and
its Subsidiaries do not exceed 5% of Net Worth;
(h) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower;
(i) Liens securing obligations in respect of purchase money Indebtedness
and Capital Leases permitted pursuant to Section 7.04(d) on assets (and proceeds
thereof) subject to such leases; provided that (A) any such Lien on purchase
money Indebtedness or in respect of Capital Leases covers only the asset (and
proceeds thereof) subject to the Capital Lease or being acquired with the
proceeds of such purchase money Indebtedness and (B) such purchase money
Indebtedness and Capital Leases are otherwise permitted hereunder;
(j) Liens securing obligations permitted under Sections 7.04(f) and
7.04(g), to the extent such Liens are identified and permitted under such
Section;
(k) Liens arising as a result of claims under or related to Insurance
Contracts, Reinsurance Agreements or Retrocession Agreements in the ordinary
course of business, or securing Indebtedness of Insurance Subsidiaries incurred
or assumed in connection with the settlement of claim losses in the ordinary
course of business of such Insurance Subsidiaries;
(l) Liens securing obligations permitted under Section 7.04(h);
(m) Liens on assets of a Subsidiary securing Indebtedness owed to the
Borrower or a Subsidiary and permitted under Section 7.04(l);
(n) so long as no Default or Event of Default has occurred and is
continuing at the time such Lien is granted, other Liens on assets of the
Borrower and its Subsidiaries securing obligations in an aggregate amount not
exceeding at any one time outstanding 5% of Net Worth;
(o) leases, licenses, subleases or sublicenses granted to other Persons in
the ordinary course of business which do not interfere in any material respect
with the business of the Borrower and its Subsidiaries;
(p) Liens incurred in connection with a Permitted Accounts Securitization
and which Liens attach solely to the Transferred Securities sold or transferred
in connection with the incurrence of Indebtedness arising in connection with
such Permitted Accounts Securitization;
(q) Liens on assets of Designated Subsidiaries securing obligations
permitted under Section 7.04(o);
57
(r) any extension, refinancing (but not increase), renewal or replacement
of the foregoing; provided that the Liens permitted hereby shall not be spread
to cover any additional Indebtedness or property (other than a substitution of
like property); and
(s) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection, (ii) on 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
or contract encumbering deposits (including the right of set-off) and which are
within the general parameters customary in the banking industry.
7.02 CONSOLIDATIONS AND MERGERS; SALES OF ASSETS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of related transactions) all or any part of its
assets (including receivables and Equity Interests, and in all cases whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) (i) any Subsidiary may merge with the Borrower; provided that the
Borrower shall be the continuing or surviving Person, or with any one or more
Subsidiaries; provided that if any transaction shall be between a Subsidiary and
a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a
Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the
Borrower or any Subsidiary may merge with any other Person; provided that such
merger is consummated as part of a Permitted Acquisition and the Borrower or the
applicable Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary
liquidation or otherwise) to the Borrower or another Subsidiary that is a
Wholly-Owned Subsidiary; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise
dispose of assets (i) if such sale, lease, conveyance or other disposition is
(A) of portfolio Investments in the ordinary course of its business at fair
market value, (B) of obsolete, worn-out or surplus property and property no
longer used or useful in the conduct of the business of the Borrower and its
Subsidiaries, (C) a sale of property to the extent such property is exchanged
for credit against the purchase price of similar replacement property or the Net
Disposition Proceeds thereof are applied to the purchase of such replacement
property within 90 days of such sale; (D) ordinary course dispositions of
inventory, real estate and related properties in connection with relocation
activities for employees of the Borrower and its Subsidiaries; (E) dispositions
of tangible property as part of a like kind exchange under Section 1031 of the
Code in the ordinary course of business; (F) dispositions of real estate and
related properties as part of the resolution or settlement of claims under an
Insurance Contract in the ordinary course of business; (G) a voluntary
termination of a Swap Contract; (H) leases, subleases, licenses or sublicenses
of property in the ordinary course of business and which do not materially
interfere with the business of the Borrower and its Subsidiaries; (I)
dispositions in the ordinary course of business of accounts receivable in
connection with the collection thereof, or (J) a Permitted Accounts
Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or
disposed of in clause (i) immediately preceding, provided that (A) no Default or
Event of Default shall have occurred or be continuing or would occur after
giving effect thereto, (B) all such dispositions
58
shall be for fair market value, and (C) the aggregate value of all assets
disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries
shall not exceed 25% of Net Worth.
7.03 INVESTMENTS. The Borrower shall not, and shall not permit any of its
Subsidiaries to, make any Investments, except for:
(a) Investments held by the Borrower or any of its Subsidiaries in the
form of (i) Primary Investments and (ii) so long as no Default or Event of
Default has occurred and is continuing at the time of the making of such
Investment or after giving effect thereto, Secondary Investments; provided that,
(A) such Investments comply with all Legal Requirements, (B) the aggregate
amount of Secondary Investments shall not exceed 20% of the aggregate amount of
the Borrower's total investment portfolio and (C) the aggregate amount of
Investments in Secondary Investments that are issued by a single issuer shall
not exceed 5% of the aggregate amount of the Borrower's total investment
portfolio (with all valuations for purposes of compliance with this clause (ii)
being on a cost basis);
(b) extensions of credit and capital contributions by the Borrower to any
of its Subsidiaries existing on the Closing Date or to new Subsidiaries created
after the Closing Date in accordance with this Agreement or by any of its
Subsidiaries to another of its Subsidiaries existing on the Closing Date or to
new Subsidiaries created after the Closing Date in accordance with this
Agreement;
(c) Investments by the Insurance Subsidiaries in the ordinary course of
business and in compliance with all applicable regulatory requirements;
(d) Investments existing on the Closing Date and identified on Schedule
7.03, and any modifications, replacements and renewals (but not increases)
thereof;
(e) extensions of credit in the nature of accounts receivable, notes
receivable, loans, advances, lease obligations and similar obligations arising
in the ordinary course of business;
(f) Investments constituting Permitted Acquisitions;
(g) Investments consisting of non-cash proceeds from Dispositions
permitted under Section 7.02(b) and (c);
(h) Investments received in satisfaction or partial satisfaction of
obligations owed to the Borrower or its Subsidiaries by financially troubled
account debtors;
(i) any Investment in a Securitization Vehicle or any Investment by a
Securitization Vehicle in any other Person in connection with a Permitted
Accounts Securitization, including Investments of funds held in accounts
permitted or required by the arrangements governing the Permitted Accounts
Securitization 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; and
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(j) so long as no Default or Event of Default has occurred and is
continuing on the date of such Investment, other Investments (excluding
Acquisitions) in an aggregate amount not to exceed at any one time outstanding
3% of Net Worth.
Notwithstanding anything in this Section 7.03 or elsewhere in this
Agreement to the contrary, no Investment may be made by the Borrower or any
Subsidiary in FIS or any of its subsidiaries.
7.04 LIMITATION ON INDEBTEDNESS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations in respect of
obligations of other Persons (excluding for purposes of this Section 7.04(b)
only, Contingent Obligations of the Borrower in respect of airplane leases of
its Subsidiaries not to exceed $25,000,000 in aggregate amount) in an aggregate
amount not to exceed at any one time outstanding 3% of Net Worth;
(c) Indebtedness existing on the Closing Date and identified on Schedule
7.04;
(d) Indebtedness incurred in the ordinary course of business in connection
with (i) Capital Leases which are non-recourse to the Borrower or its
Subsidiaries and (ii) purchase money Indebtedness and other Capital Leases in an
aggregate amount not to exceed 3% of Net Worth;
(e) Obligations under Swap Contracts entered into for hedging purposes;
(f) Indebtedness of the Borrower and its Subsidiaries having a maturity of
92 days or less representing borrowings from a bank or banks with which the
Borrower or such Subsidiary has a depository relationship, which borrowings
shall be fully secured by Cash Equivalents purchased by the Borrower or such
Subsidiary with the proceeds of such borrowings;
(g) Obligations incurred in the ordinary course of business in connection
with relocation service transactions and secured by properties which are the
subject to such transactions;
(h) Indebtedness incurred by a Subsidiary to fund a Permitted Acquisition
and Indebtedness of a Person that becomes a Subsidiary after the Closing Date
pursuant to a Permitted Acquisition, which Indebtedness existed prior to such
Acquisition and was not created in contemplation thereof;
(i) Indebtedness under the Intercompany Notes, and, at any time after the
Borrower is no longer obligated to pay the Intercompany Notes and the Borrower
becomes the obligor under the Public Debentures, Indebtedness under the Public
Debentures;
(j) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof or after giving effect thereto,
other unsecured Indebtedness of the
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Borrower and its Subsidiaries (excluding Synthetic Lease Obligations) in an
aggregate principal amount not to exceed at any one time outstanding 4% of Net
Worth;
(k) obligations consisting of guarantees of any Subsidiary of Indebtedness
of insurance agents of an Insurance Subsidiary in an aggregate amount not to
exceed at any one time outstanding 3% of Net Worth;
(l) Indebtedness of the Borrower or a Subsidiary owing to the Borrower or
another Subsidiary, provided that the payment of such Indebtedness is
subordinate to the payment of the Obligations in a manner satisfactory to the
Administrative Agent;
(m) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof, Synthetic Lease Obligations of the
Borrower and its Subsidiaries, provided the aggregate Attributable Indebtedness
in respect thereof shall not exceed at any one time outstanding 5% of Net Worth;
(n) So long as no Default or Event of Default has occurred and is
continuing time of incurrence thereof, Indebtedness arising in connection with a
Permitted Accounts Securitization;
(o) Non-Recourse Debt of the Designated Subsidiaries;
(p) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof or after giving effect thereto,
unsecured Indebtedness of the Borrower; provided that such Indebtedness (i)
shall have a stated maturity of no earlier than October 17, 2010, (ii) shall not
have any scheduled principal payments or provide for any mandatory prepayments
or redemptions or repurchases (other than by way of acceleration after default)
not otherwise provided to the Lenders hereunder prior to October 17, 2010, (iii)
has covenants, defaults and other terms and conditions (other than interest
rates) no more restrictive (when taken as a whole) than those contained in this
Agreement, and (iv) shall not exceed, when aggregated with all other
Indebtedness outstanding under this clause (p), the then-effective Aggregate
Commitments, provided that the proceeds from any such Indebtedness shall be used
to prepay outstanding Revolving Loans (without a mandatory corresponding
reduction in the Aggregate Commitments); and
(q) any extensions, renewals or refinancings (but not increases) of the
foregoing.
7.05 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction with any Affiliate
of the Borrower, except upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Borrower or such Subsidiary;
provided that the foregoing restrictions shall not apply to (a) customary fees
paid to members of the Board of Directors of the Borrower and its Subsidiaries,
(b) transactions permitted by Section 7.06 and (c) the performance of any of the
agreements identified on Schedule 7.05.
7.06 RESTRICTED PAYMENTS. The Borrower shall not, and shall not allow any
of its Subsidiaries to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its Equity Interests,
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or purchase, redeem or otherwise acquire for value any shares of any class of
its Equity Interests or any warrants, rights or options to acquire such shares,
now or hereafter outstanding, or directly or indirectly voluntarily prepay,
defease or in substance defease, purchase, redeem, retire or otherwise acquire,
any Indebtedness described in Section 7.04(i) (collectively, "Restricted
Payments"), except that (a) any Subsidiary may pay dividends and tax sharing
payments to the corporations which own its Equity Interest, and (b) the Borrower
may make Restricted Payments to its shareholders. Issuances by a Person of stock
options, restricted stock or other stock-based compensation to officers,
directors and employees of such Person shall not constitute Restricted Payments.
7.07 CHANGE IN BUSINESS. Other than in connection with a Permitted
Acquisition, the Borrower shall not, and shall not permit any of its Material
Subsidiaries to, engage in any material line of business substantially different
from those lines of business carried on by the Borrower and its Subsidiaries on
the date hereof and businesses directly related thereto and reasonable
extensions thereof.
7.08 ACCOUNTING CHANGES. The Borrower shall not, and shall not permit any
of its Material Subsidiaries to, make any change in accounting treatment or
reporting practices that affects the calculation of the financial covenants set
forth in Section 7.09, except as required by GAAP or SAP, or change the fiscal
year of the Borrower or of any Subsidiary.
7.09 FINANCIAL COVENANTS.
(a) Surplus. The Borrower shall not permit the combined Surplus of its
Insurance Subsidiaries to be less than (i) at the end of any Fiscal Quarter
ending on or prior to December 31, 2006, an amount equal to 75% of such combined
Surplus as of June 30, 2005 and (ii) at the end of any Fiscal Quarter ending
thereafter, the greater of (i) an amount equal to 75% of such combined Surplus
as of the immediately preceding December 31 and (ii) an amount equal to the
highest amount previously required to be maintained under this Section 7.09(a).
(b) Interest Coverage Ratio. The Borrower shall not permit its Interest
Coverage Ratio to be less than 2.50 to 1.00 at the end of any Fiscal Quarter.
(c) Total Debt to Total Capitalization Ratio. The Borrower shall not
permit its Total Debt to Total Capitalization Ratio to be greater than (a) 0.275
to 1.00 at the end of any Fiscal Quarter ending on or prior to December 31,
2006, and (b) 0.250 to 1.00 at the end of any Fiscal Quarter ending at any time
thereafter.
7.10 NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The Borrower shall
not, and shall not permit any of its Material Subsidiaries to, enter into any
agreement (other than pursuant to Legal Requirements and excluding any Loan
Document) prohibiting:
(a) the creation or assumption of any Lien upon its properties, revenues
or assets, (other than (i) assets covered by Capital Leases or purchase money
security interests, (ii) contracts to which Subsidiaries are party which became
Subsidiaries pursuant to an Acquisition, which contracts and restrictions were
in effect prior to such Acquisition and (iii) customary non-assignment
provisions in contracts entered into in the ordinary course of business and
consistent with past practices), whether now owned or hereafter acquired, or the
62
ability of the Borrower or any of its Subsidiaries to amend or otherwise modify
any Loan Document;
(b) the ability of any of its Subsidiaries to make any payments, directly
or indirectly, to the Borrower by way of dividends, advances, repayments of
loans or advances, reimbursements and accruals or other returns on investments,
or any other agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Borrower; or
(c) except as provided in this Agreement and pursuant to financial
covenants in other agreements evidencing Indebtedness permitted under Section
7.04, the ability of the Borrower to make any payments, directly or indirectly,
to FNF by way of dividends, advances, repayments of loans or advances,
reimbursements and accruals or other returns on investments, or any other
agreement or arrangement which restricts the ability of the Borrower to make any
payment, directly or indirectly, to FNF.
7.11 ERISA. The Borrower shall not, and shall not permit any of its ERISA
Affiliates to, at any time engage in a transaction which could be subject to
Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, has a Material Adverse
Effect.
7.12 DEBT RATINGS. The Borrower shall not, at any time, permit its Debt
Ratings to be less than Investment Grade.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to be
paid herein, any amount of principal of any Loan, or (ii) within five days after
the same becomes due, any interest on any Loan, or any Facility Fee or other fee
due hereunder, or any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. The Borrower or any Subsidiary fails to perform or
observe any term, covenant or agreement contained in any of Section 6.03(a)(i),
6.09 or Article VII applicable to it; or
(c) Other Defaults. The Borrower or any Subsidiary fails to perform or
observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days after the earlier of (i) the date upon
which a Responsible Officer knew or reasonably should have known of such failure
or (ii) the date upon which written notice thereof is given to the Borrower by
the Administrative Agent or any Lender; or
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(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any Subsidiary herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness incurred
pursuant to (i) the FNF Credit Agreement, (ii) the Public Debentures, or (iii)
any other Indebtedness or Contingent Obligation (other than Indebtedness
hereunder; Indebtedness under Swap Contracts, Indebtedness permitted under
Section 7.04(l), and Capital Lease Liabilities or purchase money Indebtedness
with respect to which a bona fide dispute exists which is being actively
contested by the Borrower or the applicable Subsidiary) having an aggregate
principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than 3% of Net Worth and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure, or (B) fails to observe or perform any other agreement
or condition relating to any such Indebtedness or Contingent Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Indebtedness or Contingent Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Indebtedness to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than 3% of Net Worth; or
(f) Insolvency Proceedings, Etc. The Borrower or any Material Subsidiary
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or any Insurance Subsidiary shall become subject to any
conservation, rehabilitation or liquidation order, directive or mandate issued
by an Governmental Authority; or
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(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Material
Subsidiary ceases to be Solvent, or becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise, 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 the Borrower or any Material
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding 2% of Net Worth (to the extent not covered by an
indemnity from a creditworthy indemnitor or independent third-party insurance as
to which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of 10 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 an aggregate amount in excess of $10,000,000;
(ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $10,000,000; or (iii) 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 in excess of
$10,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or the Borrower contests in any manner the validity or
enforceability of any Loan Document; or the Borrower denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss of Licenses. Any Governmental Authority revokes, fails to renew
or suspends any License of the Borrower or any Subsidiary, which revocation,
failure or suspension has had or could reasonably be expected to have a Material
Adverse Effect, or the Borrower or any Subsidiary for any reason loses any
License which loss has had or could reasonably be expected to have a Material
Adverse Effect, or the Borrower or any Subsidiary suffers the imposition of any
restraining order, escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any License which
imposition has had or could reasonably be expected to have a Material Adverse
Effect; or
(m) Environmental Damages. A reasonable basis shall exist for the
assertion against the Borrower or any of its Subsidiaries or any predecessor in
interest of the Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its
65
Subsidiaries) any claims or liabilities, whether accrued, absolute or
contingent, based on or arising from the generation, storage, transport,
handling or disposal of Hazardous Materials by the Borrower or any of its
Subsidiaries or predecessors thereof that, in the judgment of the Required
Lenders, are reasonably likely to be determined adversely to the Borrower or
such Subsidiary and the amount payable as a result thereof has a Material
Adverse Effect (after deducting such amounts that are reasonably expected to be
paid by other creditworthy Persons jointly and severally liable therefor); or
(n) Governmental Action. The Borrower or any of its Subsidiaries shall be
required by any applicable bank regulatory authority, any applicable insurance
regulatory authority or other Governmental Authority to enter into, after the
date hereof, any indenture, agreement, instrument or other arrangement
(including any capital maintenance agreement) that directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes material adverse conditions upon the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of Investments or the Disposition of property or requires the making
of capital contributions to, or other Investments in, any such Subsidiary in an
aggregate amount which has a Material Adverse Effect; or
(o) Public Indentures. Borrower shall make any payment (other than
regularly scheduled payments of interest and payments made in connection with
the Restructuring), prepayment, redemption, defeasance, repurchase or offer to
repurchase with respect to the Intercompany Notes or the Public Debentures,
other than in connection with a refinancing of the Public Debentures with
securities containing substantially similar terms, including tenor, amount,
interest rate and payment, redemption, defeasance and repurchase provisions); or
(p) Internal Control Event. An Internal Control Event shall occur, the
result of which could reasonably be expected to have a Material Adverse Effect.
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 to be terminated,
whereupon such commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) 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, however, that upon the occurrence of any Event of Default under
Section 8.01(f), the obligation of each Lender to make Loans 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,
without further act of the Administrative Agent or any Lender.
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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 as set forth in the proviso to Section 8.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent under the Loan
Documents 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 and amounts payable under Article III) under
the Loan Documents, 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, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to payment of that portion of the Obligations in respect of Swap
Contracts, ratably among the counterparties thereto, in proportion to the
respective amounts described in this clause Fifth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative
Agent and the Lenders, and the Borrower shall not have rights as a third party
beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with
67
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, or
a Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have
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been signed, sent or otherwise authenticated by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan, that by its terms must be fulfilled
to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of
such Loan. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time upon at least 30 days prior written notice to the Lenders and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the prior consent of the Borrower (which
consent shall not be unreasonably withheld or delayed and in any event shall not
be required at any time a Default or Event of Default exists), to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Loan Documents,
the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and
(2) all payments, communications and determinations provided to be made by, to
or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the
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retiring Administrative Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as Swing Line Lender. Upon
the acceptance of a successor's appointment as Administrative Agent hereunder,
(a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Swing Line Lender, and (b) the
retiring Swing Line Lender shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers, Co-Syndication Agents or
Co-Senior Managing Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent or
a Lender hereunder. 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.
9.09 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 the Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations 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
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respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.08 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender 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.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 2.05 or Section 8.02) without the
written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (iii)) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to waive any obligation of the Borrower to pay interest at the Default
Rate;
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(e) change Section 2.12 or Section 8.03 or the definition of "Pro Rata
Share" in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender; or
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) 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; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
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.
Notwithstanding anything to the contrary contained in this Section 10.01,
in the event that the 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 the Required Lenders, the Borrower shall be permitted
to effect the replacement 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") in accordance with Section 10.13.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent or the Swing Line
Lender, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 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
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designated by such party in a notice to the Borrower, the Administrative
Agent and the Swing Line Lender.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent or as otherwise provided in this Agreement,
provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication.
The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes and except as
otherwise provided in this Agreement, (i) notices and other communications sent
to an e-mail address shall be deemed received upon the sender's receipt of an
acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Borrower's or the
Administrative Agent's transmission of Borrower Materials through the Internet,
except to the
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extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence, willful misconduct or breach, in bad
faith, of this Agreement by such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent
and the Swing Line Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent and the Swing Line Lender. In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Revolving Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, each Lender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by Law.
10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent and the Arranger in connection with the
development, preparation, negotiation 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
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agent and each Lender for all
reasonable costs
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and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
reasonably retained by the Administrative Agent or, with respect to clause (b)
above, any Lender.
(b) Indemnification and Damage Waiver by the Borrower. Whether or not the
transactions contemplated hereby are consummated, the Borrower shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (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)
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 (other than costs of
Lenders other than Bank of America incurred solely in connection with the
negotiation of the initial terms of this Agreement and the execution and
delivery of this Agreement), (b) any Commitment or Loan or the use or proposed
use of the proceeds therefrom, or (c) 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, settlement of, 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"); 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 are (i) determined by a court of competent jurisdiction by final
and non-appealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or the breach, in bad faith, of the Loan
Documents by an Indemnitee or (ii) are the result of claims asserted against an
Indemnitee by another Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof) or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent) or such
Related Party, as the case may be, such Lender's Pro Rata Share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) in
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connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby, except
to the extent that such damages are determined by a court of competent
jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or the breach, in bad
faith, of the Loan Documents by an Indemnitee.
(e) Payments. All amounts due under this Section shall be payable not
later than 20 Business Days after demand therefor.
(f) Survival. The agreements in this Section 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.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
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 set-off 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 the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under clause
(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender and no
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Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge
or assignment of a security interest subject to the restrictions of subsection
(f) or (h) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in Swing Line
Loans) at the time owing to it); 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 with respect to a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining
whether such minimum amount has been met;
(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 apply to rights in respect of Swing
Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent and the Swing Line Lender (each such consent not to
be unreasonably withheld or delayed) unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and
(iv) the parties 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
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hereof, to use the ClearPar Settlement System, to the extent practicable
and consistent with then current practice), together with a processing and
recordation fee in the amount, if any, required as set forth in Schedule
10.06, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
at any reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or substantive
change to the Loan Documents is pending, any Lender may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any
78
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank
of America shall, upon 30 days' notice to the Borrower and the Lenders, resign
as Swing Line Lender. In the event of any such resignation as Swing Line Lender,
the Borrower shall be entitled to appoint from among the Lenders a successor
Swing Line Lender hereunder but no Lender shall be required to accept such
appointment; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as Swing Line
Lender. If Bank of America resigns as Swing Line Lender, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the Closing 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
2.03(c).
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10.07 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
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 will
agree 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; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) 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 or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(g) with the consent of the Borrower; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower without breach of
any duty of confidentiality known to the Administrative Agent or such Lender; or
(i) to the NAIC or any other similar organization. In addition, the
Administrative Agent and the Lenders 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 the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower or any Subsidiary. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including
Federal and state securities Laws.
10.08 RIGHT OF SET-OFF. If an Event of Default shall have occurred and be
continuing, 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
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency, but not any deposits
held in a custodial, trust or other fiduciary capacity) at any time held and
other obligations (in whatever currency) at any time owing by such Lender or any
such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the
80
Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender or its Affiliates
may have. Each Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied.
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10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.02 or Section 3.04, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or
if any Lender is a Minority Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent (and with
respect to the replacement of a Minority Lender, upon obtaining consent of the
Required Lenders), require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.02 or Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
10.14 GOVERNING LAW.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. THIS
AGREEMENT HAS BEEN ENTERED INTO PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
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NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ DISTRICT COURT OF THE SOUTHERN DISTRICT OF
SUCH STATE AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
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BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. Each Lender 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.
10.17 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
embodies the entire agreement and understanding among the Borrower, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof, except that (a) the matters contained in
paragraphs 7, 8, 9 and 10 of the Commitment Letter and (b) the Fee Letter shall
survive the execution and delivery of this Agreement and the Closing Date. 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 the inclusion of supplemental rights or remedies in favor of the
Administrative Agent, Arranger or any Lender in any other Loan Document shall
not be deemed a conflict with this Agreement.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FIDELITY NATIONAL TITLE GROUP, INC.
By: ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., as a Lender and
Swing Line Lender
By: _________________________________
Name: ___________________________
Title: __________________________
Signature Page to Credit Agreement
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------------------------------------------------ -------------- --------------
Bank of America, N.A. $29,230,769.23 7.3076923%
JPMorgan Chase Bank, N.A. $26,461,538.46 6.▇▇▇▇▇▇▇%
U.S. Bank National Association $26,461,538.46 6.▇▇▇▇▇▇▇%
SunTrust Bank $26,461,538.46 6.▇▇▇▇▇▇▇%
Wachovia Bank, National Association $26,461,538.46 6.6153846%
▇▇▇▇▇ Fargo Bank, National Association $26,461,538.46 6.▇▇▇▇▇▇▇%
Union Bank of California, N.A. $21,538,461.54 5.▇▇▇▇▇▇▇%
Bank of the West $21,538,461.54 5.▇▇▇▇▇▇▇%
Comerica Bank $21,538,461.54 5.3846154%
Sumitomo Mitsui Banking Corp., New York $21,538,461.54 5.▇▇▇▇▇▇▇%
LaSalle Bank National Association $21,538,461.54 5.3846154%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc. $21,538,461.54 5.▇▇▇▇▇▇▇%
Keybank National Association $21,538,461.54 5.▇▇▇▇▇▇▇%
Citibank (West), FSB $21,538,461.54 5.3846154%
Fifth Third Bank $15,384,615.38 3.8461538%
Mizuho Corporate Bank, Ltd. $15,384,615.38 3.8461538%
▇▇▇▇▇ ▇▇▇ Commercial Bank, Ltd., New York Branch $12,307,692.31 3.0769231%
National City Bank of the Midwest $10,769,230.76 2.6923077%
▇▇▇ ▇▇▇ Commercial Bank, Ltd. New York Agency $ 6,153,846.16 1.▇▇▇▇▇▇▇%
Bank of Hawaii $ 6,153,846.16 1.5384615%
Total $ 400,000,000 100.000%
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