EXHIBIT 10.1
------------
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of October 19, 2006
among
L-1 IDENTITY SOLUTIONS, INC.,
AS THE BORROWER,
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT,
THE LENDERS PARTY HERETO,
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
AS SYNDICATION AGENT,
BEAR, ▇▇▇▇▇▇▇ & CO. INC. AND
BANC OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
AND
WACHOVIA BANK, N.A. AND
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
AS CO-DOCUMENTATION AGENTS
================================================================================
TABLE OF CONTENTS
Page
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...................................................27
1.05 Times of Day...............................................27
1.06 Letter of Credit Amounts...................................27
ARTICLE II THE COMMITMENT AND CREDIT EXTENSIONS..............................27
2.01 Committed Loans............................................27
2.02 Borrowings, Conversions and Continuations of
Committed Loans............................................27
2.03 Letters of Credit..........................................29
2.04 Swing Line Loans...........................................37
2.05 Prepayments................................................40
2.06 Termination or Reduction of Commitments....................41
2.07 Repayment of Loans.........................................41
2.08 Mandatory Prepayments......................................42
2.09 Interest...................................................42
2.10 Fees.......................................................43
2.11 Computation of Interest and Fees...........................44
2.12 Evidence of Debt...........................................44
2.13 Payments Generally; Administrative Agent's Clawback........44
2.14 Sharing of Payments by Lenders.............................46
2.15 Increase in Commitments....................................47
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...........................48
3.01 Taxes......................................................48
3.02 Illegality.................................................50
3.03 Inability to Determine Eurodollar Rate.....................50
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.........51
3.05 Compensation for Losses....................................52
3.06 Mitigation Obligations.....................................53
3.07 Survival...................................................53
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.........................53
4.01 Conditions of Credit Extension.............................53
4.02 Conditions to all Credit Extensions........................55
ARTICLE V REPRESENTATIONS AND WARRANTIES.....................................56
5.01 Existence, Qualification and Power; Compliance with
Laws.......................................................56
5.02 Authorization; No Contravention............................56
5.03 Governmental Authorization; Other Consents.................56
5.04 Binding Effect.............................................56
5.05 Financial Statements; No Material Adverse Effect...........57
5.06 Litigation.................................................58
5.07 No Default.................................................58
5.08 Ownership of Property; Liens...............................58
5.09 Environmental Compliance...................................58
5.10 Insurance..................................................58
5.11 Taxes......................................................58
5.12 ERISA Compliance...........................................59
5.13 Subsidiaries; Equity Interests.............................59
5.14 Margin Regulations; Investment Company Act.................60
5.15 Disclosure.................................................60
5.16 Compliance with Laws.......................................60
5.17 Labor Matters..............................................60
5.18 Solvency...................................................61
5.19 Taxpayer Identification Number.............................61
5.20 Intellectual Property; Licenses, Etc.......................61
5.21 No Burdensome Restrictions.................................61
5.22 Security Interests.........................................61
5.23 Compliance with Anti-Terrorism Laws........................61
5.24 Subordination..............................................62
ARTICLE VI AFFIRMATIVE COVENANTS.............................................62
6.01 Financial Statements.......................................63
ii
6.02 Certificates; Other Information............................63
6.03 Notices....................................................65
6.04 Payment of Obligations.....................................65
6.05 Preservation of Existence, Etc.............................66
6.06 Maintenance of Properties..................................66
6.07 Maintenance of Insurance...................................66
6.08 Compliance with Laws and Material Contractual
Provisions.................................................66
6.09 Compliance with Environmental Laws.........................66
6.10 Books and Records..........................................67
6.11 Inspection Rights..........................................67
6.12 Use of Proceeds............................................67
6.13 Security Interests; Further Assurances.....................67
6.14 New Subsidiaries; Collateral...............................68
6.15 Designation of Material Subsidiaries.......................70
ARTICLE VII NEGATIVE COVENANTS...............................................70
7.01 Liens......................................................70
7.02 Investments................................................72
7.03 Indebtedness...............................................74
7.04 Fundamental Changes........................................75
7.05 Dispositions...............................................76
7.06 Restricted Payments........................................77
7.07 Change in Nature of Business...............................78
7.08 Transactions with Affiliates...............................78
7.09 Burdensome Agreements......................................78
7.10 Use of Proceeds............................................79
7.11 Financial Covenants........................................79
7.12 Capital Expenditures.......................................79
7.13 Change in Fiscal Year......................................80
7.14 Modifications of Material Agreements.......................80
7.15 Subordinated Debt..........................................80
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES..................................80
8.01 Events of Default..........................................80
8.02 Remedies Upon Event of Default.............................83
iii
8.03 Application of Funds.......................................83
ARTICLE IX ADMINISTRATIVE AGENT..............................................84
9.01 Appointment and Authority..................................84
9.02 Rights as a Lender.........................................84
9.03 Exculpatory Provisions.....................................85
9.04 Reliance by Administrative Agent...........................85
9.05 Delegation of Duties.......................................86
9.06 Resignation of Administrative Agent........................86
9.07 Non-Reliance on Administrative Agent and Other
Lenders....................................................87
9.08 No Other Duties, Etc.......................................87
9.09 Administrative Agent May File Proofs of Claim..............87
9.10 Collateral and Guaranty Matters............................88
ARTICLE X MISCELLANEOUS......................................................89
10.01 Amendments; Etc............................................89
10.02 Notices, Effectiveness; Electronic Communication...........90
10.03 No Waiver; Cumulative Remedies.............................91
10.04 Expenses; Indemnity; Damage Waiver.........................92
10.05 Payments Set Aside.........................................94
10.06 Successors and Assigns.....................................94
10.07 Confidentiality............................................98
10.08 Right of Setoff............................................99
10.09 Interest Rate Limitation...................................99
10.10 Counterparts; Integration; Effectiveness...................99
10.11 Survival of Representations and Warranties.................99
10.12 Severability..............................................100
10.13 Replacement of Lenders....................................100
10.14 Governing Law; Jurisdiction; Etc..........................101
10.15 Waiver of Jury Trial......................................102
10.16 USA PATRIOT Act Notice....................................102
10.17 No Advisory or Fiduciary Responsibility...................102
10.18 Amendment and Restatement; Binding Effect.................103
iv
SCHEDULES
2.01 Commitments and Applicable Percentages
5.06 Litigation
5.13 Subsidiaries; Other Equity Investments
5.16 Compliance with Laws
5.19 Taxpayer Identification Number
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.08 Transactions With Affiliates
10.02 Lending Office, Addresses for Notices
10.06 Processing and Recordation Fees
EXHIBITS
FORM OF
A Assignment and Assumption
B-1 Committed Loan Notice
B-2 Swing Line Loan Notice
C Note
D Guaranty
E Security Agreement
F Pledge Agreement
G Opinion of Counsel
H Compliance Certificate
I Autoborrow Agreement
J Holdings Agreement
v
AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of October 19, 2006 among L-1 Identity Solutions, Inc., a Delaware
corporation (the "Borrower"), each lender from time to time party hereto (the
"Lenders" and each individually a "Lender"), Bank of America, N.A., as
Administrative Agent and a Lender, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., as
Syndication Agent and as a Lender, and Bear, ▇▇▇▇▇▇▇ & Co. Inc. and Banc of
America Securities LLC, as Joint Lead Arrangers and Joint Bookrunners.
The Borrower (as successor in interest to Viisage Technology, Inc.) is
a party to the Existing Credit Agreement.
The Borrower desires to amend and restate the Existing Credit Agreement
on and subject to the terms and conditions set forth herein.
This Agreement, on the terms and subject to the conditions set forth
herein, shall amend and restate the Existing Credit Agreement in its entirety as
of the Closing Date and from and after the Closing Date, the Existing Credit
Agreement shall be of no further force or effect, except to evidence the
Obligations (as defined therein) incurred, the representations and warranties
made and the actions or omissions performed or required to be performed
thereunder prior to the Closing Date.
This Agreement shall not constitute a novation of the obligations and
liabilities existing under the Existing Credit Agreement or evidence payment of
all or any of such obligations and liabilities.
The Borrower has requested that the Lenders provide a revolving credit
facility with a letter of credit sublimit and a swingline loan sub-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 Entity" has the meaning specified in Section 7.02(g).
"Administrative Agent" means Bank of America, in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to 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.
"AFIX" means AFIX Technologies, a Kansas corporation.
"AFIX Acquisition Transaction" means the acquisition by the Borrower or
a Domestic Subsidiary of all of the Equity Interests in AFIX pursuant to the
relevant acquisition documents, so long as (a) the aggregate amount of cash to
be paid by the Borrower or any Subsidiary of the Borrower does not exceed
$20,000,000, and (b) all Indebtedness of AFIX and/or any of its Subsidiaries in
existence prior to the consummation of such transactions is paid in full and
terminated, and not assumed by the Borrower or any of its Subsidiaries, in
connection with such transactions, unless such Indebtedness would otherwise be
permitted hereunder.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Amended and Restated Credit Agreement.
"Anti-Terrorism Laws" means Executive Order No. 13224, the PATRIOT Act,
the laws comprising or implementing the Bank Secrecy Act and the laws
administered by the United States Treasury Department's Office of Foreign Asset
Control (each as from time to time in effect) and any similar laws relating to
terrorism.
"Applicable Percentage" means with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) of the Aggregate
Commitments represented by such Lender's Commitment at such time. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage 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.
"Applicable Rate" means (a) prior to the delivery of annual financial
statements for the fiscal year ending December 31, 2006 pursuant to Section
6.01(a) (together with the corresponding Compliance Certificate) (i) 1.75% in
the case of Committed Loans maintained as Eurodollar Loans and Letters of
Credit, (ii) 0.75% in the case of Committed Loans maintained as Base Rate Loans
and (iii) 0.375% in the case of the Commitment Fee and (b) following the
delivery of annual financial statements for the fiscal year ending December 31,
2006 pursuant to Section 6.01(a) (together with the corresponding Compliance
Certificate) (A) the Applicable Rate shall be determined by reference to the
2
Consolidated Leverage Ratio and the Applicable Rate set forth below; provided
that such adjustments shall become effective on the date (the "Adjustment Date")
that is three Business Days after the date on which the relevant financial
statements are delivered pursuant to Section 6.01 and shall remain in effect
until the next adjustment to be effected pursuant to this definition; provided,
further, that if any financial statements referred to above are not delivered
within the time periods specified in Section 6.01, then, until the date that is
three Business Days after the date on which such financial statements are
delivered, the highest rate set forth in each column of the Pricing Grid shall
apply. On each Adjustment Date, the Applicable Rate shall be adjusted to be
equal to the Applicable Rate opposite the Consolidated Leverage Ratio determined
on such Adjustment Date from the financial statements relating to such
Adjustment Date. At any time when an Event of Default has occurred and is
continuing, the highest rate set forth in each column set forth below shall
apply.
--------------------------- --------------------------------------------------
CONSOLIDATED APPLICABLE RATE
LEVERAGE RATIO
--------------------------- ----------------- ----------------- --------------
EURODOLLAR RATE BASE RATE LOANS COMMITMENT FEE
LOANS AND LETTERS
OF CREDIT
--------------------------- ----------------- ----------------- --------------
> or = 3.50 to 1.00 2.00% 1.00% 0.50%
--------------------------- ----------------- ----------------- --------------
< 3.50 to 1.00 but 1.75% 0.75% 0.375%
> or 2.00 to 1.00
--------------------------- ----------------- ----------------- --------------
<2.00 to 1.00 1.50% 0.50% 0.375%
--------------------------- ----------------- ----------------- --------------
"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.
"Arrangers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc. and Banc of America
Securities LLC, in their capacity as joint lead arrangers and joint bookrunners.
"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 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 A or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
3
"Autoborrow Agreement" means an agreement by and between the Company
and the Swing Line Lender in substantially the form of Exhibit I hereto,
providing for the automatic advance of Swing Line Loans by the Swing Line Lender
under the conditions set forth therein.
"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.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06 and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a Committed 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.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
4
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
substantially all of their assets in assets satisfying the requirements of
clauses (a) through (f) of this definition or money market funds that (i) comply
with the criteria set forth in Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P
and Aaa by Moody's and (iii) have portfolio assets of at least $5,000,000,000.
"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events other than a
Holdings Transaction by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire pursuant to any option,
warrant, convertible security or similar derivative security held by such person
or group (such right, an "option right"), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 35%
or more of the equity securities of Holdings (if applicable) or the Borrower
entitled to vote for members of the board of directors or equivalent governing
body of Holdings (if applicable) or the Borrower on a fully-diluted basis (and
taking into account all such securities that such person or group has the right
to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of Holdings
5
(if applicable) or the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above constituting at
the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any individual
whose initial nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of
one or more directors by or on behalf of the board of directors); or
(c) the occurrence of a "Change of Control" (or any comparable
term) under, and as defined in, any Subordinated Debt Document; or
(d) Holdings (if applicable) shall cease to own and control of
record and beneficially, directly, 100% of each class of outstanding capital
stock of the Borrower free and clear of all Liens (except Liens created by the
Holdings Agreement).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, collectively, all personal and real property of
Holdings, the Borrower, any Subsidiary or any other Person in which the
Administrative Agent or any Lender is granted a Lien under any Security
Instrument as security for all or any portion of the Obligations or any other
obligation arising under any Loan Document.
"Commitment" means, as to each Lender, its obligation to (a) make Loans
to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.01 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.
"Commitment Fee" has the meaning specified in Section 2.10(a).
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed 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.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
6
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit B-1.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit H.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign income taxes payable by
the Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense (including stock-based compensation expense), (iv) (x) for
the period ending December 31, 2006, an amount not to exceed $17,200,000, (y)
for the period ending March 31, 2007, an amount not to exceed $10,900,000 and
(z) for the period ending June 30, 2007, an amount not to exceed $4,600,000, (v)
one-time costs incurred during the fiscal year ending December 31, 2006
associated with (x) previously closed acquisitions in an amount not to exceed
$20,000,000 and (y) the SpecTal Acquisition Transaction in an amount not to
exceed $15,000,000, (vi) impairments on property, plant and equipment, goodwill
and general intangibles and (vii) other non-recurring expenses of the Borrower
and its Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period, and minus (b) the
following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of the Borrower and its
Subsidiaries for such period and (ii) all non-cash items increasing Consolidated
Net Income for such period (other than amortization deferred revenue which shall
be included in Consolidated EBITDA only when earned in accordance with GAAP).
For the purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each, a "Reference Period") pursuant to any
determination of the (A) Consolidated Leverage Ratio and (B) the Consolidated
Interest Coverage Ratio through September 30, 2007, (i) if at any time during
such Reference Period the Borrower or any Subsidiary shall have made any
Material Disposition, the Consolidated EBITDA for such Reference Period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive) attributable
to the property that is the subject of such Material Disposition for such
Reference Period or increased by an amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such Reference Period and (ii) if during such
Reference Period the Borrower or any Subsidiary shall have made a Material
Acquisition, Consolidated EBITDA for such Reference Period shall be calculated
after giving pro forma effect thereto as if such Material Acquisition occurred
on the first day of such Reference Period (including any cost saving resulting
from head count reduction and closure of facilities which would be permitted to
be reflected in pro forma financial information if reasonable to the
Administrative Agent). As used in this definition, "Material Acquisition" means
any acquisition of property or series of related acquisitions of property that
(a) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Borrower and its
Subsidiaries in excess of $2,500,000; and "Material Disposition" means any
Disposition of property or series of related Dispositions of property that (a)
constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a Person
and (b) yields gross proceeds to the Borrower or any of its Subsidiaries in
excess of $2,500,000.
7
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period.
"Consolidated Funded Indebtedness" means, without duplication, as of
any date of determination, for the Borrower and its Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds (but excluding the undrawn amount of surety bonds outstanding) and
similar instruments, (d) all obligations in respect of the deferred purchase
price of property or services (other than trade accounts and accrued liabilities
payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which the Borrower or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all cash interest,
premium payments, debt discount, fees, charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
(b) the portion of rent expense of the Borrower and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP and (c) any Restricted Payments made to Holdings as
permitted by Section 7.06(d); provided that for purposes of calculating
Consolidated Interest Charges for any period of four consecutive fiscal quarters
through September 30, 2007, Consolidated Interest Charges for the four quarter
period ending on (a) December 31, 2006 shall be deemed to be Consolidated
Interest Charges for such fiscal quarter multiplied by four, (b) March 31, 2007
shall be deemed to be Consolidated Interest Charges for the two-fiscal quarter
period ending on such date multiplied by two and (c) June 30, 2007 shall be
deemed to be Consolidated Interest Charges for the three-fiscal quarter period
ending on such date multiplied by 4/3.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters ended on such
date. Indebtedness of Holdings shall not be included in the calculation of
Consolidated Leverage Ratio.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding the cumulative non-cash effect of changes in accounting
principles and non-cash extraordinary gains and losses) for that period;
8
provided that, to the extent otherwise included therein, there shall be excluded
(a) the income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower that is not a Loan Party to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document), its Organization Documents or Requirement of Law
applicable to such Subsidiary.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 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, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum, in all cases to the fullest extent permitted by
applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder unless such failure has been
cured, (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
9
unless such failure has been cured, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.
"Direct Foreign Subsidiary" means a Foreign Subsidiary a majority of
whose Voting Equity Interests, or a majority of whose Equity Interests, are
owned by the Borrower or a Domestic Subsidiary.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Documentation Agents" means Wachovia Bank, N.A. and Credit Suisse,
Cayman Islands Branch, in their capacity as co-documentation agents under this
Agreement.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of any
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
Person) approved by the Borrower (such approval not to be unreasonably withheld
or delayed); provided that no such approval shall be required if an Event of
Default has occurred and is continuing; provided, further, 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.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials as the result of a release of such materials into the environment, (d)
the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
10
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with 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 a Pension
Plan, the treatment of a Pension 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 a Pension
Plan, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"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 Committed Loan that bears interest based
on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
11
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise or
similar taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or which imposes such
taxes because such Person engages in business in such jurisdiction other than
solely as a result of this Agreement or, in the case of any Lender, in which its
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, (c) backup withholding taxes imposed on amounts payable to
a Lender that is a "United States person," as defined in Section 7701(a)(30) of
the Code at the time such Lender becomes a party hereto or designates a new
Lending Office or is attributable to such Lender's failure or inability (other
than as a result of a Change in Law subsequent to the date it becomes a Lender)
to comply with Section 3.01(g), except to the extent that such 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 backup withholding tax pursuant to Section 3.01(a) (d) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 9.06) any withholding tax that would be 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
subsequent to the date it becomes a Lender) 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) and (e) any interest, additions to Taxes or
penalties with respect to any of the foregoing.
"Existing Credit Agreement" means that certain Credit Agreement dated
as of August 16, 2006, as amended from time to time through the date hereof, by
and between the Borrower and Bank of America.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the letter agreement, dated as of September 15,
2006, among the Borrower, Bank of America, N.A., Bear ▇▇▇▇▇▇▇ Corporate Lending
Inc. and the Arrangers.
"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
12
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is (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 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).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness payable or performable by another Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness, (ii)
to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness of the payment or
performance of such Indebtedness, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness, or (iv) entered into for the purpose of assuring in
any other manner the obligee in respect of such Indebtedness of the payment or
performance thereof or to protect such obligee against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness of any other Person, whether or not such Indebtedness is assumed by
such Person (or any right, contingent or otherwise, of any holder of such
Indebtedness to obtain any such Lien). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
13
"Guarantors" means, collectively, Holdings (upon the consummation of a
Holdings Transaction), the Material Subsidiaries of the Borrower on the Closing
Date and each other Person who becomes a party to the Guaranty (including by
execution of a Guaranty Joinder Agreement).
"Guaranty" means the Amended and Restated Guaranty Agreement dated as
of the date hereof made by the Guarantors in favor of the Collateral Agent for
the benefit of the Secured Parties, substantially in the form of Exhibit D, as
supplemented from time to time by the execution and delivery of any Guaranty
Joinder Agreement pursuant to Section 6.14.
"Guaranty Joinder Agreement" means each Guaranty Joinder Agreement,
substantially in the form thereof attached to the Guaranty, executed and
delivered by a Guarantor to the Lender pursuant to Section 6.14.
"Hazardous Materials" means all substances, materials or wastes
regulated as "hazardous", "toxic", "radioactive" or "explosive" or a "pollutant"
or "contaminant" under any Environmental Law, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, and infectious or medical wastes.
"Holdings" means a direct parent company which owns 100% of each class
of the outstanding capital stock of the Borrower.
"Holdings Agreement" means the agreement to be executed and delivered
by Holdings in accordance with Section 7.04(g), substantially in the form of
Exhibit J, or in form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which Holdings becomes a Loan Party after the
Closing Date.
"Holdings Transaction" a transaction in which the Borrower remains a
Delaware corporation and a U.S. entity becomes the direct parent NYSE-listed
company that owns 100% of each class of the outstanding capital stock of the
Borrower.
"Honor Date" has the meaning specified in Section 2.03(c)(i).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the ordinary
course of business);
14
(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) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in such
Person or any other Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"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, as selected by the Borrower in its Committed 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
15
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.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of 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
(net of returns actually received on such Investment), without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.20.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the
Letter of Credit Application and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor
of the L/C Issuer and relating to such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
16
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" and "Lenders" mean the financial institutions whose names
appear on the signature pages hereof and any assignee of a Lender permitted
pursuant to Section 10.06.
"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.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is five days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to $25,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Guaranty
(including each Guaranty Joinder Agreement), each Security Instrument, each Loan
Notice, each Issuer Document, the Fee Letter and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor of the
Administrative Agent or any Lender in connection with the Loans made and
transactions contemplated by this Agreement.
17
"Loan Parties" means, collectively, the Borrower, Holdings (upon
consummation of a Holdings Transaction), each Guarantor and each other Person
providing Collateral pursuant to any Security Instrument.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole (and, upon consummation of a Holdings
Transaction, Holdings and its Subsidiaries taken as a whole); (b) a material
adverse effect on the ability of the Loan Parties, taken as a whole, to perform
their material obligations under the Loan Documents; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.
"Material Subsidiaries" means those Domestic Subsidiaries of the
Borrower designated in accordance with Section 6.15 by the Borrower to the
Administrative Agent that, when combined with the Borrower (the Borrower and
each such Domestic Subsidiary measured for this purpose on a standalone basis,
without giving effect to the operations and assets of their respective
Subsidiaries), in the aggregate represent not less than 90% of the consolidated
assets of the Borrower and its Subsidiaries, not less than 90% of the
consolidated revenues of the Borrower and its Subsidiaries, and not less than
90% of Consolidated EBITDA; provided that if at any time any of the preceding
thresholds is not met by the aggregation of the Borrower and all its Domestic
Subsidiaries (each measured on a standalone basis), then each Domestic
Subsidiary of the Borrower shall be a Material Subsidiary.
"Maturity Date" means October 19, 2011; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.
"Maximum Permitted Time" means (a) with respect to Section 6.01(a), the
latest date for the delivery of annual financial statements on Form 10-K (or
other applicable form) pursuant to the rules of the SEC in effect at such time,
including any applicable grace period for which no special application to the
SEC is required, and (b) with respect to Section 6.01(b), the latest date for
the delivery of quarterly financial statements on Form 10-Q (or other applicable
form) pursuant to the rules of the SEC in effect at such time, including any
applicable grace period for which no special application to the SEC is required.
"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.
"Net Cash Proceeds" (a) in connection with any Disposition or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or by the Disposition of any non-cash consideration received in
connection therewith or otherwise, but only as and when received) of such
Disposition or Recovery Event, net of attorneys' fees, accountants' fees,
investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that
18
is the subject of such Disposition or Recovery Event (other than any Lien
pursuant to the Security Agreement or Pledge Agreement), reasonable and
appropriate amounts as a reserve against liabilities associated with such
Disposition and retained by the Borrower or a Subsidiary and other customary
fees and expenses actually incurred in connection therewith and net of Taxes
paid or reasonably estimated to be payable as a result thereof (after taking
into account any available Tax credits or deductions and any Tax sharing
arrangements) and (b) in connection with any incurrence of Indebtedness, the
cash proceeds received from such issuance, contribution or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"Note" means a promissory note made by the Borrower in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document (or other relevant document in the case of Related Credit Arrangements)
with respect to any Loan, Letter of Credit or Related Credit Arrangement,
whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"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.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed
Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii)
with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
19
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by 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 Acquisition" has the meaning specified in Section 7.02(g).
"Permitted Seller Debt" means any unsecured Indebtedness of the
Borrower or any of its Subsidiaries incurred in connection with, and as part of
the consideration payable in respect of, any Permitted Acquisition, no part of
the principal of which is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption or mandatory prepayment) prior to the date
which is six months after the Maturity Date, and the payment of principal and
interest of which and other obligations of the Borrower or any of its
Subsidiaries in respect thereof are subordinated to the prior payment in full of
the Obligations on terms and conditions reasonably satisfactory to the Agent.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) sponsored 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.
"Pledge Agreement" means the Amended and Restated Securities Pledge
Agreement dated as of the date hereof among the Borrower, certain Guarantors and
the Collateral Agent (as defined therein) for the benefit of the Secured
Parties, substantially in the form of Exhibit F, as supplemented from time to
time by the execution and delivery of Pledge Joinder Agreements or Pledge
Agreement Supplements pursuant the terms of any Loan Document.
"Pledge Agreement Supplement" means a Pledge Agreement Supplement in
the form affixed as an exhibit to the Pledge Agreement.
"Pledged Interests" means (a) the Equity Interests of each of the
existing or hereafter organized or acquired direct and indirect Domestic
Subsidiaries of the Borrower; and (b) 65% of the Voting Equity Interests (or if
the relevant Person shall own less than 65% of such Voting Equity Interests,
then 100% of the Voting Equity Interests owned by such Person) and 100% of the
nonvoting Equity Interests of each of the existing or hereafter organized or
acquired Direct Foreign Subsidiaries.
20
"Pledge Joinder Agreement" means a Pledge Joinder Agreement,
substantially in the form thereof attached to the Pledge Agreement, executed and
delivered by a Guarantor to the Administrative Agent pursuant to Section 6.14.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of any Loan Party.
"Register" has the meaning specified in Section 10.06(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.
"Related Credit Arrangements" means, collectively, Related Swap
Contracts and Related Treasury Management Arrangements.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Related Swap Contract" means all Swap Contracts to or for the benefit
of any Loan Party that are entered into or maintained with a Lender or an
Affiliate of such Lender or with a counterparty that was a Lender or its
Affiliate on the Closing Date or on the date such Swap Contract was entered
into.
"Related Treasury Management Arrangements" means all arrangements for
the delivery of treasury management services to or for the benefit of any Loan
Party which are entered into or maintained with a Lender or an Affiliate of such
Lender.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a borrowing,
conversion or continuation of a Loan, a Committed Loan Notice, (b) with respect
to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Requirement of Law" means, as to any Person, the Organization
Documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
21
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" means the chairman, chief executive officer,
president, chief financial officer, division chief financial officer, treasurer
or assistant treasurer of a Loan Party and, with respect to the delivery
requirements of Section 4.01, any secretary or assistant secretary of a Loan
Party. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of Holdings, the Borrower or any Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to any Loan Party's
stockholders, partners or members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" means, collectively, with respect to each of the
Security Instruments, the Collateral Agent and any other Person for whose
benefit the Lien thereunder is conferred, as therein provided.
"Security Agreement" means the Amended and Restated Security Agreement
dated as of the date hereof by the Borrower and one or more of the Guarantors to
the Collateral Agent (as defined therein) for the benefit of the Secured
Parties, substantially in the form of Exhibit E (or Exhibit J in the case of
Holdings), as supplemented from time to time by the execution and delivery of
Security Joinder Agreements pursuant to Section 6.14.
"Security Instruments" means, collectively, the Security Agreement
(including any Security Joinder Agreements), the Holdings Agreement, the Pledge
Agreement (including any Pledge Joinder Agreements and any Pledge Agreement
Supplements) and all other agreements (including control agreements),
instruments and other documents, whether now existing or hereafter in effect,
pursuant to which Holdings, the Borrower, any Subsidiary or other Person shall
grant or convey to the Administrative Agent a Lien in, or any other Person shall
acknowledge any such Lien in, property as security for all or any portion of the
Obligations or any other obligation under any Loan Document.
"Security Joinder Agreement" means each Security Joinder Agreement,
substantially in the form thereof attached to the Security Agreement, executed
and delivered by a Guarantor or any other Person to the Administrative Agent
pursuant to Section 6.14.
"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
22
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.
"Solvent" and "Solvency": when used with respect to any Person, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities shall be computed at the
amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"SpecTal" means SpecTal, LLC, a Virginia limited liability company.
"SpecTal Acquisition Transaction" means the acquisition by the Borrower
of 100% of the membership interests of SpecTal through a wholly-owned subsidiary
of SpecTal pursuant to the Securities Purchase Agreement dated September 11,
2006 by and among SpecTal, LLC, the Member (as defined therein), the Borrower,
as purchaser, and the Seller Representative (as defined therein) so long as (a)
the aggregate amount of cash to be paid by the Borrower does not exceed
$105,000,000 (exclusive of working capital adjustments plus, if applicable, an
earnout in an amount not to exceed $10,000,000) and (b) all Indebtedness of
SpecTal and/or any of its Subsidiaries in existence prior to the consummation of
such transactions is paid in full and terminated, and not assumed by the
Borrower or any of its Subsidiaries in connection with such transactions, unless
such Indebtedness would otherwise be permitted hereunder.
"Subordinated Debt" means any unsecured Indebtedness of the Borrower or
Holdings, no part of the principal of which is required to be paid (whether by
way of mandatory sinking fund, mandatory redemption or mandatory prepayment),
prior to the date which is six months after the Maturity Date (it being
understood that any required offer to purchase such Indebtedness as a result of
a change of control or asset sale shall not violate the foregoing restriction)
and the terms and conditions of which (including, without limitation, the
subordination provisions) are satisfactory to the Administrative Agent.
"Subordinated Debt Document" means, collectively, any note, indenture
and each other document, agreement and instrument governing or evidencing any
Subordinated Debt.
23
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Holdings (as applicable ) or of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B-2.
24
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Syndication Agent" means Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., in its
capacity as syndication agent under this Agreement.
"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), other than operating leases.
"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.
"Threshold Amount" means $5,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means, with respect to a Committed 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 such Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Voting Equity Interests" means the shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
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
25
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;" and the
word "through" means "to and including."
(c) Section headings herein and in the other Loan
Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the 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 (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 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.
26
(c) Consolidation of Variable Interest Entities. All
references herein to consolidated financial statements of the Borrower and its
Subsidiaries or to the determination of any amount for the Borrower and its
Subsidiaries on a consolidated basis or any similar reference shall, in each
case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 - Consolidation
of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as
if such variable interest entity were a Subsidiary as defined herein.
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 ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all
references herein to times of day shall be references to Eastern time (daylight
or standard, as applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the
stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time
ARTICLE II
THE COMMITMENT AND CREDIT EXTENSIONS
------------------------------------
2.01 COMMITTED LOANS. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make loans (each such loan, a
"Committed 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 Committed Borrowing, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the Committed Loans of any Lender, plus such Lender's Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage 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 2.05, and reborrow under this Section
2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein. Notwithstanding anything to the contrary contained
herein, the aggregate amount of Borrowings requested to be made on the Closing
Date shall not exceed $105,000,000.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF
COMMITTED LOANS.
27
(a) Each Committed Borrowing, each conversion of a
Committed Loan from one Type to the other, and each continuation of a Eurodollar
Rate Loan shall be made upon the Borrower's irrevocable notice to the
Administrative Agent, which may be given by telephone or in writing. 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 a Eurodollar Rate Loan, and (ii) on the
requested date of any borrowing of a Base Rate Loan or of any conversion of a
Eurodollar Rate Loan to a Base Rate Loan. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of a Eurodollar Rate Loan shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except
as provided in Section 2.03(c), each Borrowing of or conversion to a Base Rate
Committed Loan shall be in a principal amount of $100,000 or a whole multiple of
$50,000 in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Committed
Borrowing, a conversion of Committed 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 Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing
Committed 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
Committed Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable
Committed 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 Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the amount of its
Applicable Percentage of the applicable Committed 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
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is a
Credit Extension on the Closing Date, 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 Committed Loan Notice with
respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made available
to the Borrower as provided above.
28
(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 an Event of
Default, no Loan 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 a Eurodollar Rate Loan upon determination of such interest rate. The
determination of the Eurodollar Rate by the Lender shall be conclusive in the
absence of manifest error. At any time that a Base Rate Loan is outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
the 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 Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than five Interest
Periods in effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set
forth herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of the Lenders set forth in this Section 2.03, (1) from time
to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit
for the account of the Borrower or its Subsidiaries, and to amend or
extend Letters of Credit previously issued by it in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrower and any drawings
thereunder provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments (y) the
aggregate Outstanding Amount of the Loans of any Lender, plus such
Lender's Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Borrower for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Borrower that the
L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of
Credit, if:
29
(A) subject to Section 2.03(b)(iii), the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless any
such Letter of Credit is cash collateralized pursuant to the terms hereof.
(iii) The L/C Issuer shall not be under any
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or
any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it;
(B) the issuance of such Letter of Credit
would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit
is in an initial stated amount less than $250,000;
(D) such Letter of Credit is to be
denominated in a currency other than Dollars;
(E) such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount
after any drawing thereunder; or
(F) a default of any Lender's obligations to
fund under Section 2.03(c) exists or any Lender is at such
time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or
such Lender to eliminate the L/C Issuer's risk with respect to
such Lender.
(iv) The L/C Issuer shall not amend any Letter of
Credit if the L/C Issuer would not be permitted at such time to issue
such Letter of Credit in its amended form under the terms hereof.
30
(v) The L/C Issuer shall be under no obligation
to amend any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the
L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit Application
must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m., at least two Business Days (or such later date
and time as the L/C Issuer and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the
L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may require. In the case of a
request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may reasonably require. Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent
such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents,
as the L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
31
thereof. Unless the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions
contained in Section 4.02 shall not then be satisfied, then, subject to
the terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower (or the
applicable Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer
a risk participation in such Letter of Credit in an amount equal to the
product of such Lender's Applicable Percentage times the amount of such
Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Letter of Credit");
provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrower shall not be required to make a specific
request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the L/C Issuer shall,
subject to the terms and conditions set forth herein, permit the
extension of such Letter of Credit to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall have no obligation to permit the renewal of any
Auto-Extension Letter of Credit at any time if it has determined that
it would have no obligation at such time to issue such Letter of Credit
in its extended form under the terms hereof (by reason of the
provisions of Section 2.03(a)(ii) or otherwise).
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.
Not later than 11:00 a.m. on the next Business Day following the date
of any payment by the L/C Issuer under a Letter of Credit (each such
date, an "Honor Date"), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of
such drawing. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Lender's Applicable
Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Committed Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without
32
regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer at the Administrative Agent's Office in an
amount equal to its Applicable Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice
by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received
to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall, upon the request of the
Required Lenders, bear interest at the Default Rate. In such event,
each Lender's payment to the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of
such Lender's Applicable Percentage of such amount shall be solely for
the account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Committed Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to
33
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the greater of the Federal Funds Rate and
a rate determined by the L/C Issuer in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the L/C Issuer in connection with
the foregoing. If such Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender's
Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.03(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Percentage thereof in the same funds as those
received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in
Section 10.05 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
34
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agrees that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable
to any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
35
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Affiliates,
any of the respective officers, directors, employees, agents or
attorneys-in-fact of the L/C Issuer, the Administrative Agent and their
respective Affiliates, nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
if, as of the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains outstanding, the Borrower shall, in each case, within two
Business Days after the Letter of Credit Expiration Date, Cash Collateralize the
then Outstanding Amount of all L/C Obligations. Sections 2.04 and 7.02(c) set
forth certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the
Administrative Agent and the Borrower when a Letter of Credit is issued, the
rules of the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.06. Letter of Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the first Business Day after the last day of
each March, June, September and December, commencing with the first such date to
36
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit, at the rate per
annum equal to 0.125%, computed on the daily amount available to be drawn under
such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall
be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.04 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 2.04, 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 Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations 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
Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
37
Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's Applicable Percentage 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
2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Applicable Percentage 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 $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the 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
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Section 4.02 is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds, or such other location as the Borrower
may reasonably direct. In order to facilitate the borrowing of Swing Line Loans,
the Borrower and the Swing Line Lender may mutually agree, and are hereby
authorized to, enter into an Autoborrow Agreement providing for the automatic
advance by the Swing Line Lender of Swing Line Loans under the conditions set
forth in such agreement and without the necessity for any notice by the Borrower
otherwise required by this subsection (b).
(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 Committed Loan in an
amount equal to such Lender's Applicable Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in
38
writing (which written request shall be deemed to be a Committed 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, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Borrower
with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall
make an amount equal to its Applicable Percentage of the amount
specified in such Committed Loan Notice available to the Administrative
Agent in immediately available funds for the account of the Swing Line
Lender at the Administrative Agent's Office not later than 1:00 p.m. on
the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Committed Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender. The Borrower may request weekly settlement
procedures regarding the Swing Line Loans.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed 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 2.04(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 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender
in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged
by the Swing Line Lender in connection with the foregoing. If such
Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender's Committed Loan included
in the relevant Committed Borrowing or funded participation in the
relevant Swing Line Loan, as the case may be. 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 Committed Loans or
to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the 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
39
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Committed Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 4.02. 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 Applicable Percentage thereof
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 10.05 (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 Applicable Percentage 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. The obligations
of the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.
(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 Committed Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage 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.
2.05 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay any Committed Loan in whole or
in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 1:00 p.m. (A) three Business
Days prior to any date of prepayment of a Eurodollar Rate Loan, and (B) on the
date of prepayment of a Base Rate Committed Loan; (ii) any prepayment of a
Eurodollar Rate Loan shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof; and (iii) any prepayment of a Base Rate
Loan shall be in a principal amount of $100,000 or a whole multiple of $50,000
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 Committed Loans to be prepaid and, if Eurodollar
40
Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Applicable Percentage 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 Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.
(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.
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 Total Outstandings at any time exceed
the Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that the Borrower shall not be required to
Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless
after the prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect.
2.06 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 $1,000,000 or
any whole multiple of $500,000 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 Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of
the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. 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 Applicable
Percentage. All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.07 REPAYMENT OF LOANS. (a) The Borrower shall repay to the
Lenders on the Maturity Date the aggregate principal amount of Loans outstanding
on such date.
(b) The Borrower shall repay each Swing Line Loan on the Maturity
Date.
41
2.08 MANDATORY PREPAYMENTS. (a) If any Indebtedness shall be
incurred by any Loan Party (other than Indebtedness permitted under Section
7.03), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied
on the date of such issuance, incurrence or contribution toward the prepayment
of the Loans as set forth in Section 2.08(c).
(b) If on any date any Loan Party shall receive Net Cash Proceeds
from any Disposition (other than Dispositions permitted under Section 7.05) or
Recovery Event, such Net Cash Proceeds shall be applied on the next Business Day
following such date toward the prepayment of the Loans as set forth in Section
2.08(c); provided that if the Borrower and the Subsidiaries apply the Net Cash
Proceeds from such event (or a portion thereof) within 360 days after receipt of
such Net Cash Proceeds and at a time when no Default has occurred and is
continuing, to acquire real property, equipment or other tangible assets to be
used in the business of the Borrower and the Subsidiaries (provided that the
Borrower has delivered to the Administrative Agent on the next Business Day
following the date such Net Proceeds are received a certificate of a financial
officer stating its intention to do so and certifying that no Default has
occurred and is continuing), then no prepayment shall be required pursuant to
this paragraph in respect of the Net Cash Proceeds in respect of such event (or
the portion of such Net Cash Proceeds specified in such certificate, if
applicable) except to the extent of any such Net Cash Proceeds therefrom that
have not been so applied by the end of such 360-day period, at which time a
prepayment shall be required in an amount equal to such Net Cash Proceeds that
have not been so applied.
(c) Amounts to be applied in connection with prepayments made
pursuant to Section 2.08 shall be applied to the prepayment of the Loans. Any
such prepayment of the Loans shall be accompanied by a reduction of the
Commitments; provided that if the aggregate principal amount of Loans then
outstanding is less than the amount of the then outstanding Commitments (because
L/C Obligations constitute a portion thereof), the Borrower shall, to the extent
of the balance of such excess, replace outstanding Letters of Credit and/or
deposit an amount in cash in a cash collateral account established with the
Administrative Agent for the benefit of the Lenders on terms and conditions
satisfactory to the Administrative Agent. The application of any prepayment
pursuant to Section 2.08 shall be made, first, to Base Rate Loans and, second,
to Eurodollar Loans. Each prepayment of the Loans under Section 2.08 (except in
the case of Committed Loans that are Base Rate Loans) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.
2.09 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; and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid
when due (after giving effect to any applicable grace period), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
42
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan)
payable by the Borrower under any Loan Document is not paid when due
(after giving effect to any applicable grace period), whether at stated
maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, 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.
(iii) 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, without
duplication of clauses (i) and (ii) above.
(iv) 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.
2.10 FEES In addition to certain fees described in subsections (i)
and (j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee equal to the Applicable Rate times the actual daily
amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding
Amount of Committed Loans and (ii) the Outstanding Amount of L/C Obligations
(the "Commitment Fee"). The Commitment Fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Section 4.02 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 with the first such date to occur after the Closing Date, and on the
last day of the Availability Period. The Commitment 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 Lenders such fees as
shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
43
2.11 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.12 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
Note, which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, 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 Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.13 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) 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 3:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
3:00 p.m. shall be deemed received on the next succeeding Business Day and any
44
applicable interest or fee shall continue to accrue. 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 Committed Borrowing of Eurodollar Rate Loans (or, in
the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on
the date of such Committed Borrowing) that such Lender will not make available
to the Administrative Agent such Lender's share of such Committed 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 Committed
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
Committed 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, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in
the case of a payment to be made by the 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 Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender's Committed Loan included in such Committed
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 or the L/C Issuer
hereunder 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 or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or the L/C Issuer, as the
case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the L/C
Issuer, in immediately available funds with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the
45
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.
(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 Section 4.02 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 Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Committed Loan, to
fund any such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan, to purchase its
participation or to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS BY LENDERS. 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 Committed Loans made by
it, or the participations in L/C Obligations or in Swing Line Loans held by it
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of such Committed 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
Committed Loans and subparticipations in L/C Obligations and 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 Committed 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
46
a participation in any of its Loans or subparticipations in L/C
Obligations or 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).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.15 INCREASE IN COMMITMENTS. (a) Request for Increase.
Provided there exists no Default, upon notice to the Administrative Agent (which
shall promptly notify the Lenders), the Borrower may, on up to three (3)
occasions, request an increase in the Aggregate Commitments by an amount not
exceeding $50,000,000; provided that any such request for an increase shall be
in a minimum amount of $10,000,000. Such notice shall specify the time period
within which each Lender is requested to respond (which shall in no event be
less than ten Business Days from the date of delivery of such notice to the
Lenders).
(b) Notification by Administrative Agent; Additional Lenders. To
achieve the full amount of a requested increase and subject to the approval of
the Administrative Agent, the L/C Issuer and the Swing Line Lender (which
approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement
in form and substance satisfactory to the Administrative Agent and its counsel.
(c) Effective Date and Allocations. If the Aggregate Commitments
are increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and
the Increase Effective Date.
(d) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Borrower shall deliver to the Administrative
Agent a certificate of each Loan Party dated as of the Increase Effective Date
signed by a Responsible Officer of such Loan Party (i) certifying and attaching
the resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and correct in all
material respects (except to the extent any such representation and warranty is
itself, qualified by materiality, in which case it shall be true and correct in
all respects) on and as of the Increase Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they are true and correct in all material respects (except to the
extent any such representation and warranty is itself, qualified by materiality,
in which case it shall be true and correct in all respects) as of such earlier
date, and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default exists. The
Administrative Agent shall reallocate Loans to the extent necessary to keep the
47
outstanding Committed Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any
provisions in Section 10.01 to the contrary.
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 or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the 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, each Lender and the L/C Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by 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 a resident for tax purposes, or any treaty to which
such jurisdiction is a party, with respect to payments hereunder or under any
48
other Loan Document shall deliver to the Borrower (with a copy to the
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, any
Lender or the L/C Issuer determines, in its sole discretion, that it has
received a refund of any Indemnified 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 Indemnified Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided
that the Borrower, upon the request of the Administrative Agent, such Lender or
the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any
49
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower or any other Person.
(g) Any Lender that is a "United States person," as defined in
Section 7701(a)(30) of the Code shall deliver to the Borrower (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower) duly completed copies of IRS Form
W-9, or any successor form that such Lender is entitled to provide at such time
in order to comply with United States backup withholding requirements.
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 Committed
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.
3.03 INABILITY TO DETERMINE EURODOLLAR RATE. 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, if no response is received from the Borrower in
connection with such notice, will be deemed to have converted such request into
a request for a borrowing of Base Rate Loans in the amount specified therein.
50
3.04 INCREASED COSTS; 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 or for the account of, or
credit extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e));
(ii) subject any Lender or the L/C Issuer to any tax of
any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar Rate
Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or
the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Rate Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining
its obligation to make any such Loan), or to increase the cost to such Lender or
the L/C Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, the Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the case may be,
for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer
determines that any Change in Law affecting such Lender or the L/C Issuer or the
Lending Office of such Lender or such Lender's or the L/C Issuer's holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the L/C Issuer's capital or on
the capital of such Lender's or the L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or Participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the L/C Issuer, to a level below that which such Lender or
the L/C Issuer or such Lender's or the L/C Issuer's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or
the L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
51
specified in subsection (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender
or the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or reductions
suffered more than six months prior to the date that such Lender or the L/C
Issuer, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer'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.
(f) This Section 3.04 shall not apply to Taxes, which shall be
exclusively governed by Section 3.01.
3.05 COMPENSATION FOR LOSSES. Upon demand of a Lender (with a copy
to the Administrative Agent) from time to time, 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);
(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;
52
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained (but excluding any loss of the
Applicable Rate on the relevant Loan). 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.
3.06 MITIGATION OBLIGATIONS.
(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 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, 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 CREDIT EXTENSION. The obligation of the L/C
Issuer and each Lender to make Credit Extensions hereunder on the Closing Date
is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
53
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) a fully executed counterpart of each of this
Agreement, each of the Security Instruments and the Guaranty, promptly
followed by the delivery to the Lender of four (4) original executed
counterparts of each such Loan Document;
(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 each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(iv) such documents and certifications as the Lender may
reasonably require to evidence that each Loan Party is duly organized
or formed, and that each Loan Party is validly existing, in good
standing and qualified to engage in business in its jurisdiction of
organization and in any other jurisdiction reasonably required by the
Lender, including certified copies of each Loan Party's Organization
Documents, certificates of good standing and/or qualification to engage
in business;
(v) a favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit F and such other
matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request;
(vi) if applicable, a certificate of a Responsible Officer
of the Borrower identifying all consents, licenses and approvals
required in connection with the execution, delivery and performance by
each Loan Party and the validity against each such Loan Party of the
Loan Documents to which it is a party, and stating that such consents,
licenses and approvals shall be in full force and effect, and attaching
true and correct copies thereof;
(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, (B) that there has been no event
or circumstance since the date of the Audited Financial Statements that
has had or could be reasonably expected to have, either individually or
in the aggregate, a Material Adverse Effect and (C) as to the solvency
of the Borrower and its Subsidiaries, taken as a whole, after giving
effect to the initial borrowings under this Agreement;
(viii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect and
all required endorsements thereto are in effect;
54
(ix) approval of Uniform Commercial Code financing
statements suitable in form and substance for filing in all places
required by applicable law to perfect the Liens of the Administrative
Agent under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be perfected by
the filing of financing statements, and such other documents and/or
evidence of other actions as may be reasonably necessary under
applicable law to perfect the Liens of the Administrative Agent under
such Security Instruments as a first priority Lien in and to such other
Collateral as the Administrative Agent may require, including without
limitation the delivery by the Borrower of all certificates evidencing
Pledged Interests, accompanied in each case by duly executed stock
powers (or other appropriate transfer documents) in blank affixed
thereto;
(x) Uniform Commercial Code search results showing only
those Liens as are acceptable to the Administrative Agent; and
(xi) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C Issuer, the
Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) The Borrower shall have paid all fees, charges and
disbursements of counsel to the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such
fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative Agent).
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to make any Credit Extension is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each
other Loan Party contained in Article V or any other Loan Document shall be true
and correct in all material respects (except to the extent any such
representation and warranty is itself qualified by materiality, in which case it
shall be true and correct in all 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 in all material respects (except to the extent any such representation
and warranty is itself qualified by materiality, in which case it shall be true
and correct in all respects) as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.
55
(c) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of a Committed Loan to the other Type or a
continuation of a Eurodollar Rate Loan) 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
------------------------------
Each of Holdings (if applicable) and the Borrower represents and
warrants to the Administrative Agent and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any material Contractual Obligation to which such
Person is a party or affecting such Person or the properties of such Person or
any of its Subsidiaries or (ii) any material 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.
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, any Loan Party of this Agreement or any other Loan Document other than
(i) filings required to perfect the Liens granted by the Loan Documents and (ii)
those that have been or will be obtained prior to the Closing Date.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
56
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(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; 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 in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.
(b) The unaudited consolidated balance sheets of the Borrower and
its Subsidiaries dated as of June 30, 2006, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present 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.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate, that has
had or could reasonably be expected to have a Material Adverse Effect.
(d) The forecasted balance sheet and statements of income and cash
flows of the Borrower and its Subsidiaries delivered pursuant to Section 6.01(c)
were prepared in good faith on the basis of the assumptions stated therein,
which management believes are reasonable in the circumstances in light of the
conditions existing at the date of their preparation and known to the Borrower.
The forecasted financial information reflects management's judgment of the
expected conditions and its expected course of action as of the date of its
preparation. The assumptions are those that management believes are significant
to the forecast. There will usually be differences between forecasted and actual
results, because events and circumstances frequently do not occur as expected,
and those differences may be material. The forecasts were prepared for
management's internal use and are not intended to comply with standard for the
presentation of forecasted financial information in accordance with standards
established by the American Institute of Certified Public Accountants as they
relate to prospective financial information.
(e) As of the Closing Date, the Borrower and its Subsidiaries have
no material indebtedness or other material liabilities, direct or contingent,
including liabilities for taxes, material commitments and Indebtedness, other
than (i) those booked or disclosed in the unaudited consolidated financial
57
statements of the Borrower and its Subsidiaries for the fiscal quarter ended
June 30, 2006 and (ii) as disclosed on Schedule 7.03.
5.06 LITIGATION. There are no actions, suits, proceedings, claims
or disputes pending or, to the best knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Holdings, the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06,
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.07 NO DEFAULT. Neither Holdings, 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 Holdings, the Borrower
and each Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of Holdings, the Borrower and its Subsidiaries is
subject to no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. Based on the respective businesses,
operations and properties of the Borrower, the Borrower has reasonably concluded
that there are no claims with respect to Environmental Laws that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.10 INSURANCE. The properties of Holdings, the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where Holdings,
the Borrower or the applicable Subsidiary operates.
5.11 TAXES. Holdings, the Borrower and its Subsidiaries have (a)
filed all Federal and state income tax returns required to be filed, and have
paid all Federal and state taxes imposed upon them or their properties, income
or assets otherwise due and payable, except those which are either (i) being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP or (ii) where
the failure to file or pay would not be material, and (b) filed all other
material tax returns and reports required to be filed, and have paid all 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 either (i) are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP or (ii) the failure to file or pay
would not be material. There is no proposed tax assessment against Holdings, the
58
Borrower or any Subsidiary that would, if made, be material. Neither Holdings,
the Borrower nor any of its Subsidiaries is party to any tax sharing agreement
with any Person other than the Borrower or one or more of its Subsidiaries.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance with the applicable provisions of
ERISA, the Code and other Federal or state Laws, except for such non-compliance
that, either individually or in the aggregate, 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, except
for such non-qualification that, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan subject
to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
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, within
the past six years, resulted or could reasonably be expected to result in a
Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA, except in such instances
described in (i) through (v) above that, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
5.13 SUBSIDIARIES; EQUITY INTERESTS. As of the Closing Date, the
Borrower has no Subsidiaries other than those specifically disclosed in Part (a)
of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by the Borrower or one of its Subsidiaries in the amounts specified on
Part (a) of Schedule 5.13 free and clear of all Liens other than non-consensual
Liens permitted by Section 7.01 that could not reasonably be expected to
materially impair the value of any such Equity Interest as Collateral. As of the
Closing Date, the Borrower has no equity investments in any other corporation or
entity other than those specifically disclosed in Part (b) of Schedule 5.13. All
of the outstanding Equity Interests in the Borrower have been validly issued,
59
and are fully paid and nonassessable. Except as disclosed in financial
statements delivered under this Agreement and Part (c) of Schedule 5.13, there
are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors and directors' qualifying shares) of any nature relating to any
capital stock of (i) the Borrower (A) issued or otherwise created by the
Borrower as of the Closing Date and (B) after consummation of a Holdings
Transaction or (ii) any Subsidiary, except in each case as created by the Loan
Documents.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT.
(a) Holdings, the Borrower and each Subsidiary is not engaged and
will not engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock.
(b) None of Holdings, the Borrower, any Person Controlling
Holdings, the Borrower, or any Subsidiary is or is required to be registered as
an "investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Borrower has disclosed to the Administrative
Agent and all Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case,
as modified or supplemented by other information so furnished), taken as a
whole, contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; 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.
5.16 COMPLIANCE WITH LAWS. Except as set forth on Schedule 5.16,
each of Holdings, the Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such Requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
5.17 LABOR MATTERS.There is (i) no unfair labor practice complaint
pending against Holdings, the Borrower or any of its Subsidiaries or, to the
best knowledge of Borrower, threatened against Holdings, the Borrower or any of
its Subsidiaries, before the National Labor Relations Board or any other
Governmental Authority, and no grievance or arbitration proceeding arising out
of or under any collective bargaining agreement is so pending against Holdings,
the Borrower or any of its Subsidiaries or, to the best knowledge of Borrower
60
after due inquiry, threatened against Holdings, the Borrower or any of its
Subsidiaries, (ii) no strike, labor dispute, slowdown or stoppage pending
against Holdings, the Borrower or any of its Subsidiaries or, to the best
knowledge of Borrower, after due inquiry, threatened against Holdings, the
Borrower or any of its Subsidiaries and (iii) to the best knowledge of Borrower
after due inquiry, no union representation question existing with respect to the
employees of Holdings, the Borrower or any of its Subsidiaries and, to the best
knowledge of Borrower, no union organizing activities are taking place, except
such as would not, with respect to any matter specified in clause (i), (ii) or
(iii) above, individually or in the aggregate, have a Material Adverse Effect.
5.18 SOLVENCY. Upon giving effect to the issuance of the Notes, the
execution of the Loan Documents by the Loan Parties and the consummation of the
transactions contemplated hereby, the Borrower and its Subsidiaries, taken as a
whole, will be Solvent.
5.19 TAXPAYER IDENTIFICATION NUMBER. The Borrower's true and
correct U.S. taxpayer identification number is set forth on Schedule 5.19.
5.20 INTELLECTUAL PROPERTY; LICENSES, ETC. Holdings, the Borrower
and its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses,
without material conflict with the rights of any other Person. (i) To the best
knowledge of the Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary infringes upon
any rights held by Holdings, any other Person, and (ii) no claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of the
Borrower, threatened, which, in either case, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.21 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of Holdings, the Borrower or any of its Subsidiaries has
had or could be expected to have a Material Adverse Effect.
5.22 SECURITY INTERESTS.
(a) Each of the Pledge Agreement and upon execution of the
Holdings Agreement, the Holdings Agreement, is effective to create in favor of
the Administrative Agent for the benefit of the Lenders valid and enforceable
security interests in the Pledged Interests, subject to no other Liens, except
Liens permitted by the Loan Documents. The Security Instruments (other than the
Pledge Agreement) are effective to create in favor of the Administrative Agent,
for the benefit of the Lenders, valid and enforceable security interest in the
collateral subject thereto, subject to no other Liens, except Liens permitted by
the Loan Documents.
5.23 COMPLIANCE WITH ANTI-TERRORISM LAWS.
(a) No Loan Party is in violation of any Anti-Terrorism Law or
engages in or conspires to engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts to violate, any of the
61
prohibitions set forth in any Anti-Terrorism Law, in each case in any respect
that could reasonably be expected to have a Material Adverse Effect.
(b) Except as could not reasonably be expected to have a Material
Adverse Effect, none of the Loan Parties or their agents acting or benefiting in
any capacity in connection with the Loans, Letters of Credit or other
transactions hereunder, is any of the following (each a "Blocked Person"):
(i) a person that is listed in the annex to, or is
otherwise subject to the provisions of Executive Order No. 13224 ;
(ii) a person owned or controlled by, or acting for or on
behalf of, any person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(iii) a person with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law;
(iv) a person that commits, threatens or conspires to
commit or supports "terrorism" as defined in Executive Order No. 13224;
(v) a person that is named as a "specially designated
national" on the most current list published by the United States
Treasury Department's Office of Foreign Asset Control at its official
website or any replacement website or other replacement official
publication of such list; or
(vi) a person who is affiliated or associated with a
person listed above.
(c) No Loan Party, or to the knowledge of any Loan Party, any of
its agents acting in any capacity in connection with the Loans, Letters of
Credit or other transactions hereunder (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person or (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to Executive Order No. 13224, in each case in any respect that could reasonably
be expected to have a Material Adverse Effect.
5.24 SUBORDINATION. The Obligations constitute "Senior Debt" or
"Designated Senior Debt" under any Subordinated Debt Documents (or any similar
term used therein).
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Holdings (if applicable) and the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02 and 6.03) cause each Subsidiary to:
62
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within the Maximum
Permitted Time (commencing with the fiscal year ending December 31, 2006), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, such statements
to be audited and accompanied by a report and opinion of a Registered Public
Accounting Firm of nationally recognized standing as to whether such financial
statements are free of material misstatement, which report and opinion shall be
prepared in accordance with audit standards of the Public Company Accounting
Oversight Board 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 or with respect to the absence of
material misstatement; and
(b) as soon as available, but in any event within the Maximum
Permitted Time (commencing with the fiscal quarter ending September 30, 2006), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of the Borrower's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, such statements to be certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations, shareholders' equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
(c) as soon as available, but in any event at least 15 days before
the end of each fiscal year of the Borrower, forecasts prepared by management of
the Borrower, in form satisfactory to the Administrative Agent, of consolidated
balance sheets and statements of income or operations and cash flows of the
Borrower and its Subsidiaries on a quarterly basis for the immediately following
fiscal year (including the fiscal year in which the Maturity Date occurs).
As to any information contained in materials furnished pursuant to
Section 6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
After a Holdings Transaction, all financial statements shall be with respect to
Holdings and its consolidated Subsidiaries.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent and each Lender, 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 certifying such financial statements and stating that in
63
making the examination necessary therefor no knowledge was obtained of any
Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b) (commencing with the delivery of the
financial statements for the fiscal year ending December 31, 2006), a duly
completed Compliance Certificate signed by a Responsible Officer of the
Borrower;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of a Loan Party by independent accountants in connection
with the accounts or books of a Loan Party or any Subsidiary, or any audit of
any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower (not otherwise publicly available), and copies
of all annual, regular, periodic and special reports and registration statements
which Holdings or 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;
(e) promptly, and in any event within five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of each
written notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any material
investigation or possible material investigation by such agency regarding
financial or other operational results of any Loan Party or any Subsidiary
thereof;
(f) no later than five (5) Business Days (or such shorter period
as agreed to by the Administrative Agent) prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification of any Subordinated Debt Document; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of Holdings, the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01 or Section
6.02 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 IntraLinks/IntraAgency 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: (A) if the Administrative Agent or a
Lender so requests, the Borrower shall deliver paper copies of such documents to
64
the Administrative Agent or such Lender until a written request to cease
delivering paper copies is given by the Administrative Agent or 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
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. 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.
6.03 NOTICES. Promptly notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any material default under, a Contractual Obligation of
Holdings, the Borrower or any Subsidiary; (ii) any material dispute, litigation,
investigation, proceeding or suspension between Holdings, the Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Borrower or
any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by Holdings, the Borrower or any Subsidiary.
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 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless either (i) the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by Holdings, the Borrower or such
Subsidiary or (ii) the failure to do so would not have a Material Adverse
Effect; (b) all lawful claims which, if unpaid, would by law become a Lien upon
its property that is not a Lien permitted by Section 7.01; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
65
6.05 PRESERVATION OF EXISTENCE, ETC. (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 7.04 or 7.05; (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)
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) deliver certificates of good standing
and/or qualifications to engage in business not delivered to the Administrative
Agent on or before the Closing Date as set forth in Section 4.01(a)(iv) within
10 Business Days after the Closing Date or as otherwise agreed to by the
Administrative Agent.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof;
and (c) use the standard of care typical in the industry in the operation and
maintenance of its facilities, in each case except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. (a) Maintain with financially sound
and reputable insurance companies not Affiliates of any Loan Party or
Subsidiary, (i) 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, and (ii)
such insurance, including any endorsements, required to be maintained pursuant
to the Security Instruments and (b) name the Administrative Agent as additional
insured party and/or loss payee in respect of property.
6.08 COMPLIANCE WITH LAWS AND MATERIAL CONTRACTUAL PROVISIONS.
Comply in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or
property, and all material contractual provisions, 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.
6.09 COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Except where noncompliance would not reasonably be expected to
result in a Material Adverse Effect (i) comply with all Environmental Laws
applicable to it, and obtain, comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (ii) use
commercially reasonable efforts to cause all of its tenants, subtenants,
contractors, subcontractors and invitees to comply with all Environmental Laws,
and obtain, comply with and maintain any and all Environmental Permits,
applicable to any of them insofar as any failure to so comply, obtain or
maintain as set forth in (i) and (ii) above would reasonably be expected to
result in a Material Adverse Effect.
66
(b) Comply in a timely manner with all orders and lawful
directives regarding Environmental Laws issued to Holdings, the Borrower or any
of its Subsidiaries by any Governmental Authority, other than such orders and
lawful directives (x) as to which an appeal or other challenge has been timely
and properly taken in good faith or (y) which would not reasonably be expected
to give rise to a Material Adverse Effect.
6.10 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of Holdings, 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 or contracting authority over Holdings,
the Borrower or such Subsidiary, as the case may be.
6.11 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that such visits
shall be limited to no more than four (4) visits per fiscal year unless an Event
of Default exists, at which time 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.
6.12 USE OF PROCEEDS.
Use the proceeds of the Credit Extensions for general corporate purposes,
including Permitted Acquisitions, not in contravention of any Loan Document.
6.13 SECURITY INTERESTS; FURTHER ASSURANCES. Promptly, upon the
reasonable request of Administrative Agent or any Lender, at Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Instruments or
otherwise deemed by Administrative Agent reasonably necessary or desirable for
the continued validity, perfection and priority of the Liens on the Collateral
covered thereby superior to and prior to the rights of all third Persons other
than the holders of Liens permitted hereunder and subject to other Liens except
as permitted by the Security Instruments, or obtain any consents, including,
without limitation, landlord or similar lien waivers and consents, as may be
necessary or appropriate in connection therewith. Deliver or cause to be
delivered to Administrative Agent from time to time such other documentation,
consents, authorizations, approvals and orders in form and substance reasonably
satisfactory to Administrative Agent as Administrative Agent shall reasonably
deem necessary to perfect or maintain the Liens on the Collateral pursuant to
the Security Instruments. Upon the exercise by Administrative Agent or the
Lenders of any power, right, privilege or remedy pursuant to any Loan Document
67
which requires any consent, approval, registration, qualification or
authorization of any Governmental Authority execute and deliver all
applications, certifications, instruments and other documents and papers that
Administrative Agent or the Lenders may be so required to obtain.
6.14 NEW SUBSIDIARIES; COLLATERAL.
(a) As soon as practicable but in any event within 30 days
following either (x) the acquisition or creation of any Subsidiary that
constitutes a Material Subsidiary or (y) any existing Subsidiary being
determined to be a Material Subsidiary pursuant to Section 6.15, cause to be
delivered to the Lender each of the following:
(i) if such Subsidiary is a Domestic Subsidiary, a
Guaranty Joinder Agreement duly executed by such Subsidiary;
(ii) if such Subsidiary is a Domestic Subsidiary, a
Security Joinder Agreement duly executed by such Subsidiary (with all
schedules thereto appropriately completed);
(iii) if such Subsidiary is either a Domestic Subsidiary or
a Direct Foreign Subsidiary, and if any of the Equity Interests issued
by such Subsidiary are Pledged Interests and are owned by a Subsidiary
who has not then executed and delivered to the Administrative Agent the
Pledge Agreement or a Pledge Joinder Agreement granting a Lien to the
Administrative Agent, for the benefit of the Secured Parties, in such
Pledged Interests, a Pledge Joinder Agreement (with all schedules
thereto appropriately completed) duly executed by the Subsidiary that
directly owns such Pledged Interests;
(iv) if such Subsidiary is either a Domestic Subsidiary or
a Direct Foreign Subsidiary, and if any of the Equity Interests issued
by such Subsidiary are owned by the Borrower or a Subsidiary who has
previously executed a Pledge Agreement or a Pledge Joinder Agreement, a
Pledge Agreement Supplement by the Borrower (if applicable) and each
Subsidiary that owns any of such Pledged Interests with respect to such
Pledged Interests in the form required by the Pledge Agreement;
(v) if such Subsidiary owns any Domestic Subsidiary or
Direct Foreign Subsidiary, a Pledge Joinder Agreement (with all
schedules thereto appropriately completed) duly executed by such
Subsidiary;
(vi) if the Pledged Interests issued or owned by such
Subsidiary constitute securities under Article 8 of the Uniform
Commercial Code (A) the certificates representing 100% of such Pledged
Interests and (B) duly executed, undated stock powers or other
appropriate powers of assignment in blank affixed thereto;
(vii) with respect to any Person that has executed a Pledge
Joinder Agreement, a Pledge Agreement Supplement, or a Security Joinder
Agreement, Uniform Commercial Code financing statements naming such
Person as "debtor" and naming the Administrative Agent for the benefit
of the Secured Parties as "secured party," in form, substance and
68
number sufficient in the reasonable opinion of the Administrative Agent
and its counsel to be filed in all Uniform Commercial Code filing
offices and in all jurisdictions in which filing is necessary to
perfect in favor of the Administrative Agent, for the benefit of the
Secured Parties, the Lien on the Collateral conferred under such
Security Instrument to the extent such Lien may be perfected by Uniform
Commercial Code filing;
(viii) unless otherwise agreed by the Administrative Agent
in its reasonable discretion, an opinion of counsel to each Person
executing a Guaranty Joinder Agreement, a Security Joinder Agreement or
a Pledge Joinder Agreement pursuant to this Section 6.14, dated as of
the date of delivery of such applicable Loan Document provided for in
this Section 6.14 and addressed to the Administrative Agent, in form
and substance reasonably acceptable to the Administrative Agent, each
of which opinions may be in form and substance, including assumptions
and qualifications contained therein, substantially similar to those
opinions of counsel delivered pursuant to Section 4.01(a); and
(ix) each Person executing a Guaranty Joinder Agreement, a
Security Joinder Agreement or a Pledge Joinder Agreement pursuant to
this Section 6.14, current copies of the Organization Documents of each
such Person, resolutions (or duly effected consent actions) of the
Board of Directors, partners, or appropriate committees thereof (and,
if required by such Organization Documents or applicable law, of the
shareholders, members or partners) of such Person authorizing the
actions and the execution and delivery of documents described in this
Section 6.14, all certified by the applicable Governmental Authority or
appropriate officer as the Administrative Agent may elect.
(b) If any assets in excess of $500,000 individually or $1,000,000
in the aggregate (including any real property or improvements thereto or any
interest therein) are acquired by the Borrower or any Subsidiary after the
Closing Date (other than assets constituting Collateral under the Security
Agreement or Pledge Agreement that have become subject to the Liens granted
under such Security Instruments upon acquisition thereof), the Borrower will
notify the Administrative Agent thereof, and, if requested by the Administrative
Agent, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause its Subsidiaries to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to
grant and perfect such Liens, including actions described in paragraph (a) of
this Section, all at the expense of the Loan Parties.
(c) As soon as practicable but in any event within 10 Business
Days after such event, the Borrower will furnish to the Administrative Agent
prompt written notice of any casualty or other insured damage to any material
portion of any Collateral or the commencement of any action or proceeding for
the taking of any material portion of the Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding, and will ensure that the net proceeds of any such event (whether in
the form of insurance proceeds, condemnation awards or otherwise) are collected
and applied in accordance with this Agreement the applicable provisions of the
Security Instruments.
69
6.15 DESIGNATION OF MATERIAL SUBSIDIARIES. As of the Closing Date,
the Material Subsidiaries are (i) Integrated Biometric Technology LLC, a Florida
limited liability company, (ii) SecuriMetrics, Inc., a California corporation,
(iii) Trans Digital Technologies Corporation, a Delaware corporation, (iv) IBT
Acquisition, LLC, a Delaware limited liability company, (v) Imaging Automation,
Inc., a Delaware corporation, (vi) Iridian Technologies, Inc., a Delaware
corporation, (vii) Identix Incorporated, a Delaware corporation and (viii)
Identix Identification Services, a Delaware limited liability company. If at any
time (including on a pro forma basis after the consummation of any acquisition
transaction) the Subsidiaries identified in the preceding sentence as Material
Subsidiaries are insufficient to satisfy each of the thresholds set forth in the
definition of Material Subsidiaries, the Borrower shall promptly designate in
writing to the Administrative Agent such additional Subsidiaries as "Material
Subsidiaries" as are necessary to comply with such definition, and each such
additional Subsidiary shall comply with the provisions of Section 6.14 within
the time provided therein.
ARTICLE VII
NEGATIVE COVENANTS
------------------
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Holdings (if applicable) and the Borrower shall
not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that (i) the property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased, (iii) the direct or any contingent obligor with respect thereto is
not changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes (i) not yet due, (ii) which are being
contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP, or (iii) that are not, either
individually or in the aggregate, material;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
70
(f) deposits to secure the performance of bids, trade contracts
and leases (other than Indebtedness and operating leases of Holdings), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business of the Borrower and
its Subsidiaries;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property of the Borrower and its Subsidiaries which,
in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h);
(i) Liens securing the property of the Borrower or any of its
Subsidiaries for Indebtedness permitted under Section 7.03(e) and (f); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition;
(j) Liens with respect to the cash collateral account in favor of
Citizens Bank of Massachusetts securing the letters of credit existing as of the
date hereof in an amount not to exceed $2,500,000 at any time;
(k) Liens on the property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses, subleases or leases
entered into in the ordinary course of business;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or consignment
arrangements entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business;
(m) Liens and rights of setoff of banks and securities
intermediaries in respect of deposit accounts and securities accounts maintained
in the ordinary course of business;
(n) Liens on the property of the Borrower or any of its
Subsidiaries securing obligations in respect of trade letters of credit covering
the goods (or the documents of title in respect of such goods) financed by such
trade letters of credit and the proceeds and products thereof;
(o) Liens on the property of the Borrower or any of its
Subsidiaries in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of
goods;
(p) Liens that are contractual rights of set-off relating to
purchase orders and other agreements entered into with customers of any Loan
Party in the ordinary course of business;
71
(q) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Borrower or any Subsidiary in
connection with a Permitted Acquisition; provided, that (i) such Liens were in
existence prior to the contemplation of such merger or consolidation (and not
incurred in contemplation thereof), (ii) do not extend to any assets other than
those of the Person merged into or consolidated with the Borrower or the
applicable Subsidiary and (iii) any Indebtedness secured by such Liens is
permitted by Section 7.03;
(r) Liens (i)(A) on advances of cash or Cash Equivalents in favor
of the seller of any property to be acquired in an Investment pursuant to
Section 7.02(g) to be applied against the purchase price for such Investment and
(B) consisting of Dispositions permitted under Section 7.05, in each case under
this clause (i), solely to the extent such Investment or Disposition, as the
case may be, would have been permitted on the date of the creation of such Lien
and (ii) on ▇▇▇▇▇▇▇ money deposits of cash or Cash Equivalents made by any Loan
Party in connection with any letter of intent or purchase agreement permitted
hereunder; and
(s) Liens not otherwise permitted by this Section 7.01 so long as
the aggregate outstanding principal amount of the Indebtedness secured thereby
does not exceed $5,000,000 at any one time.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments in the form of Cash Equivalents held by the
Borrower, such Subsidiary or Holdings; provided that the aggregate amount of all
such Cash Equivalents by Holdings in Investments that are not from proceeds of
Subordinated Debt, taken together with the amounts incurred under Section
7.06(d)(B) and clause (b) below, shall not exceed the limitation set forth in
Section 7.06(d)(B);
(b) advances to officers, directors and employees for travel,
entertainment, relocation and analogous ordinary business purposes of (i) the
Borrower and Subsidiaries in an aggregate amount not to exceed $500,000 at any
time outstanding and (ii) Holdings in an aggregate amount taken together with
the amounts incurred under Section 7.06(d)(B) and clause (a) above not to exceed
the limitation set forth in Section 7.06(d)(B);
(c) (i) Investments of the Borrower (A) in any Guarantor and
Investments of any Guarantor (other than Holdings) in the Borrower or in another
Guarantor (other than Holdings) and (B) in any Subsidiary that is not a
Guarantor in an amount not to exceed $10,000,000 at any time outstanding and
(ii) Investments of Holdings in the Borrower;
(d) Investments of the Borrower and any Subsidiary consisting of
extensions of credit in the nature of accounts receivable or notes receivable
arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Investments existing on the date hereof and listed on Schedule
7.02;
72
(g) the Borrower or any Subsidiary may acquire all or
substantially all of the assets or line of business of, or not less than 100% of
the capital stock of, a Person (referred to herein as the "Acquired Entity");
provided that (i) such acquisition was approved by the board of directors of
such Acquired Entity; (ii) the Acquired Entity shall be in a similar line of
business or any business related or incidental thereto as that of the Borrower
and the Subsidiaries as conducted during the current and most recent calendar
year; (iii) the Acquired Entity shall be organized under the laws of the United
States, United Kingdom, Canada or Germany or any state or political subdivision
thereof; and (iv) at the time of such transaction (A) both before and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, (B) the Borrower would be in compliance with the covenants set forth
in Section 7.11 as of the most recently completed period of four consecutive
fiscal quarters ending prior to such transaction for which the financial
statements and certificates required by Section 6.01(a) or 6.01(b) have been
delivered, after giving pro forma effect to such transaction and to any other
event occurring after such period as to which pro forma recalculation is
appropriate (including any other transaction described in this Section 7.02(g)
occurring after such period) as if such transaction had occurred as of the first
day of such period (assuming, for purposes of pro forma compliance with Sections
7.11(b), that the maximum ratios permitted at the time by such Sections were in
fact 0.25 to 1.00 more restrictive than the ratios actually provided for in such
Sections at such time); (C) the total consideration paid in connection with such
acquisition and any other acquisitions pursuant to this Section 7.02(g)
(including any Indebtedness of the Acquired Entity that is assumed by the
Borrower or any Subsidiary following such acquisition and any amounts actually
paid pursuant to any post-closing payment adjustments, earn-outs or non-compete
payments but excluding any portion of the consideration paid exclusively with
common stock of the Borrower issued contemporaneously with such acquisition)
shall not in the aggregate exceed $300,000,000 provided, that for the foregoing
United Kingdom, Canada or Germany acquisitions (x) the total consideration
consisting of cash and assumed Indebtedness shall be limited to $100,000,000 of
such aggregate amount, and (y) the total consideration paid exclusively with
common stock of the Borrower issued contemporaneously with such acquisition
shall be limited to $75,000,000; and (D) the Borrower shall have delivered a
certificate of a Responsible Officer, certifying as to the foregoing and
containing reasonably detailed calculations in support thereof, in form and
substance reasonably satisfactory to the Administrative Agent (any acquisition
of an Acquired Entity meeting all the criteria of this Section 7.02(g) being
referred to herein as a "Permitted Acquisition"). Notwithstanding the foregoing,
the AFIX Acquisition Transaction and the SpecTal Acquisition Transaction shall
each be considered a "Permitted Acquisition" and the consideration paid for such
transactions shall not count against the limits set forth in subclause (C)
above;
(h) [Intentionally Omitted];
(i) provided no Default or Event of Default shall have occurred
and be continuing, the AFIX Acquisition Transaction;
(j) provided no Default or Event of Default shall have occurred
and be continuing, the SpecTal Acquisition Transaction; and
(k) other Investments by the Borrower and its Subsidiaries not
exceeding $5,000,000 in the aggregate in any fiscal year of the Borrower.
73
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that (i) the amount of such Indebtedness is not increased at the time
of such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms (other than interest rate and fees) taken as
a whole, of any such refinancing, refunding, renewing or extending Indebtedness,
and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan Parties or
the Lender than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate and fees applicable to any such refinancing, refunding, renewing or
extending Indebtedness are on market terms;
(c) Guarantees of (i) the Borrower or any Guarantor in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any other
Guarantor (other than Holdings), (ii) any non-Guarantor Subsidiary of
Indebtedness of the Borrower or any Subsidiary, or (iii) any non-Guarantor
Subsidiary of Investments permitted by Section 7.02(c);
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness of the Borrower or any Subsidiary in respect of
capital leases and Synthetic Lease Obligations for fixed or capital assets, and
renewals and extensions thereof in connection with a refinancing thereof, within
the limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $20,000,000 taken together with amounts outstanding under clause (f)
below;
(f) Indebtedness of the Borrower or any Subsidiary in respect of
purchase money obligations for fixed or capital assets, and renewals and
extensions thereof in connection with a refinancing thereof, within the
limitations set forth in Section 7.01(i); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed
$20,000,000 taken together with amounts outstanding under clause (e) above;
74
(g) Indebtedness of an Acquired Entity that is assumed by the
Borrower or any Subsidiary in connection with a Permitted Acquisition
consummated pursuant to Section 7.02(g); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed
$20,000,000;
(h) Permitted Seller Debt in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding; provided, that before and after
giving effect to the incurrence of such Indebtedness, no Default or Event of
Default shall have occurred;
(i) unsecured Subordinated Debt in an aggregate principal amount
(x) of the Borrower not to exceed $200,000,000 at any time outstanding and (y)
of Holdings (which shall be convertible Indebtedness) in an amount not to exceed
$200,000,000 at any time outstanding; provided, that (i) no Default or Event of
Default shall have occurred as a result of the incurrence of such Subordinated
Debt and (ii) Holdings, the Borrower and the Subsidiaries are in compliance, on
a pro forma basis after giving effect to the incurrence of any such Subordinated
Debt, with the covenants contained in this Agreement (including, without
limitation, Section 7.11);
(j) unsecured Indebtedness of the Borrower or any Subsidiary
representing deferred compensation to employees of any Loan Party incurred in
the ordinary course of business;
(k) Indebtedness of the Borrower or any Subsidiary incurred in a
Permitted Acquisition or Disposition under agreements providing for
indemnification, the adjustment of the purchase price or similar adjustments;
(l) Indebtedness consisting of obligations of the Borrower or any
Subsidiary under deferred compensation or other similar arrangements incurred by
such Person in connection with Permitted Acquisitions;
(m) Indebtedness of the Borrower or any Subsidiary consisting of
the financing of insurance premiums or take-or-pay obligations contained in
supply arrangements, in each case, in the ordinary course of business;
(n) Indebtedness incurred by the Borrower or any Subsidiary
constituting reimbursement obligations with respect to letters of credit issued
in the ordinary course of business, including in respect of health, disability
or other employee benefits or property, casualty or liability insurance or
self-insurance; provided, that, upon the drawing of such letters of credit, such
obligations are reimbursed within 30 days following such drawing; and
(o) (x) Indebtedness that would constitute an Investment under
Section 7.02(c) or (y) other Indebtedness of the Borrower or any Subsidiary at
any time outstanding not to exceed $5,000,000 in the aggregate.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with or into another Person, or Dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:
75
(a) any Subsidiary may merge with (i) the Borrower, provided that
the Borrower shall be the continuing or surviving Person, or (ii) any one or
more other Subsidiaries, provided that when any Guarantor is merging with
another Subsidiary, the Guarantor shall be the continuing or surviving Person;
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor;
(c) the Borrower may consummate the AFIX Acquisition Transaction
and the SpecTal Acquisition Transaction;
(d) any Subsidiary that is not a Loan Party may merge or
consolidate with or into any other Subsidiary;
(e) the Borrower may dissolve any Subsidiary that is not a
Material Subsidiary;
(f) any Permitted Acquisition expressly permitted by Section 7.02
may be structured as a merger, consolidation or amalgamation; and
(g) the consummation of a Holdings Transaction; provided that (i)
no Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) such Holdings Transaction shall not cause the Borrower and its
Subsidiaries, or any of their respective assets, to be subject to any current or
reasonably foreseeable material tax liabilities, (iii) such Holdings Transaction
shall not have a Material Adverse Effect, (iv) Holdings shall enter into the
Holdings Agreement on terms reasonably satisfactory to the Administrative Agent
and (v) the Borrower shall have provided to the Lenders all information and
documentation, including, without limitation, legal opinions of one or more
counsel to Holdings, with respect to such Holdings Transaction and the Holdings
Agreement as the Administrative Agent may reasonably request, and all such
information and documentation shall be reasonably satisfactory to the
Administrative Agent.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that
(i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
76
(d) Dispositions of property by any Subsidiary to the Borrower or
to a wholly-owned Subsidiary; provided that if the transferor of such property
is a Guarantor, the transferee thereof must either be the Borrower, a Guarantor
or a non-Guarantor Subsidiary to the extent such Disposition constitutes an
Investment permitted by Section 7.02(c)(ii);
(e) Dispositions permitted by Section 7.04;
(f) non-exclusive licenses of IP Rights in the ordinary course of
business;
(g) intercompany sales or transfers of assets made in the ordinary
course of business;
(h) licenses, leases or subleases of tangible property in the
ordinary course of business;
(i) licensing and cross-licensing arrangements involving
technology or other intellectual property of the Borrower or a Subsidiary in the
ordinary course of business;
(j) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(k) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof;
(l) Dispositions of Cash Equivalents;
(m) Dispositions in the ordinary course of business consisting of
the abandonment of IP Rights which, in the reasonable good faith determination
of the Borrower are uneconomical, negligible, obsolete or otherwise not material
in the conduct of its business; and
(n) other Dispositions by the Borrower and its Subsidiaries in
addition to those permitted by any other clause of this Section 7.05, provided,
that the aggregate value of all such Dispositions pursuant to this Section
7.05(n) do not exceed $15,000,000 in any fiscal year; provided further that
Dispositions related to any arrangement with any Person providing for the
leasing by Borrower or any Subsidiary of real or personal property that has been
or is to be sold or transferred by Borrower or such Subsidiary to such Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of Borrower or such
Subsidiary shall not exceed $7,500,000 in any fiscal year;
provided, however, that any Disposition pursuant to clauses (b), (c), (l) and
(n) above shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that, so long as no Default shall have occurred and be continuing at
the time of any action described below or would result therefrom:
77
(a) each Subsidiary may make Restricted Payments to the Borrower,
the Guarantors (other than Holdings) and any other Person (other than Holdings)
that owns an Equity Interest in such Subsidiary, ratably according to their
respective holdings of the type of Equity Interest in respect of which such
Restricted Payment is being made;
(b) Holdings, the Borrower and each Subsidiary may declare and
make dividend payments or other distributions payable solely in the common stock
or other common Equity Interests of such Person;
(c) Holdings, the Borrower and each Subsidiary may purchase,
redeem or otherwise acquire Equity Interests issued by it with the proceeds
received from the substantially concurrent issue of (x) new shares of its common
stock or other common Equity Interests or (y) so long as no Default or Event of
Default shall have occurred or be continuing, Subordinated Debt of Holdings
permitted hereunder; and
(d) upon consummation of a Holdings Transaction and the issuance
of Subordinated Debt by Holdings as permitted hereunder, the Borrower may
declare and make cash dividend payments to Holdings (A) in an amount not to
exceed the lesser of (x) amounts of regularly scheduled interest payments as and
when due in respect of such Subordinated Debt or (y) $10,000,000 in the
aggregate in any fiscal year, the foregoing solely to permit Holdings to make
the payment of regularly scheduled interest and principal payments as and when
due in respect of such Subordinated Debt and, in addition, (B) in an amount not
to exceed $500,000 in any fiscal year for ordinary course administrative
expenses of Holdings.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto, including any business relating to or incidental
to the businesses of SpecTal or AFIX.
7.08 TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule
7.08, enter into any transaction of any kind with any Affiliate of the Borrower,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Subsidiary
as would be obtainable by the Borrower or such Subsidiary at the time in a
comparable arm's length transaction with a Person other than an Affiliate,
provided that the foregoing restriction shall not apply to transactions between
or among the Loan Parties and their Subsidiaries.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document or an agreement that has
been entered into in connection with the disposition of all or substantially all
of the capital stock or assets of such Subsidiary) that limits the ability (i)
of Holdings, the Borrower or any Subsidiary to (A) make dividend payments in
respect of any capital stock of such Subsidiary held by, or pay any Indebtedness
owed to, Borrower or any other Subsidiary, (B) make loans or advances to, or
other Investments in, the Borrower or any other Subsidiary or (C) transfer any
of its assets to the Borrower or any other Subsidiary, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property or
assets (whether now owned or hereafter acquired) of such Person; provided,
78
however, that the foregoing shall not prohibit (x) any negative pledge incurred
or provided pursuant to (A) any agreement with a holder of Indebtedness
permitted under Section 7.03(b), (e), (f) or (g) solely to the extent that such
negative pledge does not restrict in any manner (directly or indirectly) Liens
created pursuant to the Loan Documents and does not require the direct or
indirect granting of any Lien securing any Indebtedness or other obligation by
virtue of the granting of Liens on or pledge of property to secure the Loans,
(B) any industrial revenue or development bonds, acquisition agreement or
operating leases of real property and equipment entered into in the ordinary
course of business or (C) any such restrictions or conditions imposed by any
Subordinated Debt Document.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower,
beginning with the fiscal quarter ending December 31, 2006, to be less than 2.50
to 1.00.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter set forth below to be greater than
the ratio set forth opposite such fiscal quarter.
FOUR FISCAL QUARTERS ENDING MAXIMUM CONSOLIDATED
LEVERAGE RATIO
--------------------------------------------------- -----------------------
December 31, 2006 5:00 to 1.00
March 31, 2007 5.00 to 1.00
June 30, 2007 5.00 to 1.00
September 30, 2007 4.75 to 1.00
December 31, 2007 4.50 to 1.00
March 31, 2008 4.50 to 1.00
June 30, 2008 4.50 to 1.00
September 30, 2008 4.25 to 1.00
December 31, 2008 and each fiscal quarter 4.00 to 1.00
thereafter
7.12 CAPITAL EXPENDITURES. Make or become legally obligated to make
any expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations), except for capital expenditures in the ordinary
79
course of business not exceeding, in the aggregate for the Borrower and its
Subsidiaries during (a) the fiscal year of the Borrower ending December 31,
2006, $20,000,000, (b) the fiscal year of the Borrower ending December 31, 2007,
$20,000,000, (c) the fiscal year of the Borrower ending December 31, 2008,
$20,000,000, (d) each fiscal year thereafter, $25,000,000; provided that the
Borrower and its Subsidiaries may make capital expenditures in excess of the
applicable annual amount in connection with new contracts or extensions of
existing contracts to the extent approved by the Administrative Agent, the
Administrative Agent further agreeing to provide a response promptly after a
request therefor by the Borrower accompanied by reasonable information with
respect thereto, which request may occur in advance of a bid for any such new
contract or contract extension.
7.13 CHANGE IN FISCAL YEAR. Permit the fiscal year of the Borrower
to end on a day other than December 31 or change the Borrower's method of
determining fiscal quarters.
7.14 MODIFICATIONS OF MATERIAL AGREEMENTS. Amend, modify, waive,
terminate or release (a) its Organization Documents, (b) any certificate of
designations or similar document governing any preferred stock or any preferred
Equity Interests or (c) any document governing Subordinated Debt, in each case
unless the Borrower determines in good faith that the effect of such amendment,
modification, waiver, termination or release is not materially adverse to the
Borrower, any Subsidiary or the Lenders (including any amendment or modification
that would shorten the final maturity or average life to maturity prior to the
date which is six months after the Maturity Date or require any payment to be
made sooner than originally scheduled or increase the interest rate applicable
thereto).
7.15 SUBORDINATED DEBT. Make (or give any notice with respect
thereto) any optional or other non-scheduled payment on, or prepayment,
redemption, acquisition for value (including without limitation, by way of
depositing money or securities with respect thereto before due for the purpose
of paying when due), refund, refinance or exchange any Subordinated Debt (it
being understood that any required offer to purchase such Indebtedness as a
result of a change of control or asset sale shall not violate the foregoing
restriction); or make any principal or interest payments in respect of any
Subordinated Debt in violation of the subordination provisions of the
Subordinated Debt Documents.
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 or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any Loan
or any L/C Obligation, or (ii) within three Business Days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) within five days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or
80
(b) Specific Covenants. The Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05(a) (but only as to Loan Parties) or (d), 6.10, 6.11 or 6.12 or Article VII
or Holdings fails to perform or observe any term, covenant or agreement (after
giving effect to any applicable grace period) contained in the Holdings
Agreement; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) notice thereof to the
Borrower from the Lender or (ii) a Responsible Officer of the Borrower having
knowledge or notice thereof; or
(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 other Loan Party 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) Holdings, 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
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount, or
(B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the 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 the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
81
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Holdings, the Borrower
or any other Loan Party becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against Holdings, the Borrower or
any Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period
of 30 consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) 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 the Threshold Amount; 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 thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
Affiliate of any Loan Party contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document;
(k) Liens. Any Lien purported to be created under any Security
Instrument shall cease to be, or shall be asserted by any Loan Party not to be,
a valid and perfected Lien on any Collateral with an aggregate fair market value
in excess of $800,000, with the priority required by the applicable Security
Instrument, except as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents; or
(l) Change of Control. There occurs any Change of Control; or
(m) Subordinated Debt. There shall occur an "Event of Default" (or
any comparable term) under, and as defined in, any Subordinated Debt Document;
82
or any of the Obligations for any reason shall fail to be "Senior Debt" (or any
comparable term) under, and as defined in, any Subordinated Debt Document; or
any Indebtedness other than the Obligations shall constitute "Designated Senior
Debt" (or any comparable term) under, and as defined in, any Subordinated Debt
Document; or the subordination provisions of any Subordinated Debt Document
shall, in whole or in part, terminate, cease to be effective or cease to be
legally valid, binding and enforceable against any holder of such Subordinated
Debt.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer
all rights and remedies available to it, the Lenders and the L/C Issuer under
the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
83
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and Letter
of Credit Fees) payable to the Lenders and the L/C Issuer (including fees,
charges and disbursements of counsel to the respective Lenders and the L/C
Issuer and amounts payable under Article III), ratably among them in proportion
to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C
Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer
in proportion to the respective amounts described in this clause Third payable
to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer,
to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been paid
indefeasibly in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
--------------------
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C
Issuer hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof 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, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall 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
84
any kind of business with 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, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Section 4.02 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 been
85
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the 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 at any time give notice of its resignation to the Lenders, the L/C Issuer
and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the consent of the Borrower (not to be
unreasonably withheld), so long as no Event of Default is continuing, 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 and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the 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 or
the L/C Issuer 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 and the L/C
Issuer 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
86
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 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 L/C Issuer and 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 L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of the Arrangers, Syndication Agent, Administrative Agent
or Documentation 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, a
Lender or the L/C Issuer hereunder.
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on 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, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the
87
Lenders, the L/C Issuer and the Administrative Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Lenders, the L/C Issuer and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under Sections 2.03(i) and (j), 2.10 and 10.04) allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.10
and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment
or composition affecting the Obligations or the rights of any Lender or the L/C
Issuer to authorize the Administrative Agent to vote in respect of the claim of
any Lender or the L/C Issuer in any such proceeding.
9.10 COLLATERAL AND GUARANTY MATTERS.
The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent,
at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii)
subject to Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to the holder of any Lien on
such property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.10.
88
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 or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan
Party, as the case may be, and 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(c) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(c) reduce the maturity of any Loan;
(d) 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) or any scheduled or mandatory
reduction of the Aggregate Commitments hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(e) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document, or change the manner of computation of any
financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest
rate on any Loan or any fee payable hereunder without the written consent of
each Lender directly affected thereby; provided, however, that only the consent
of the Required Lenders shall be necessary (i) to amend the definition of
"Default Rate" or to waive any obligation of the Borrower to pay interest or
Letter of Credit Fees at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such
amendment immediately effective thereafter would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(f) change Section 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender adversely affected thereby;
(g) change Section 10.06 in a manner that would restrict
assignments thereunder without the written consent of each Lender affected
thereby;
(h) 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
89
hereunder or make any determination or grant any consent hereunder without the
written consent of each Lender;
(i) release all or substantially all of the value of the Guaranty
or all or substantially all of the Collateral without the written consent of
each Lender; or
(j) amend, modify or waive any provision of any Security
Instrument or Section 8.03 hereof so as to alter the ratable treatment of
Related Swap Contracts maintained by a Loan Party and covered thereby without
the consent of such Related Swap Contract counterparty;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (iv)
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.
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, the L/C
Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person
on Schedule 10.02; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
90
(b) Electronic Communications. Notices and other communications to
the Lenders and the L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender may change its
address, facsimile or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, facsimile or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer
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,
facsimile number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic 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, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of 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, the
L/C Issuer or the Administrative Agent to exercise, and no delay by any such
person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
91
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 shall pay (i) all reasonable
out of pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder, (iii) all reasonable out
of pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent, any Lender or the L/C Issuer) in connection with
the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section,
or (B) in connection with the Loans made or Letters of Credit issued hereunder,
including all such out of pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit and
(iv) all reasonable out of pocket expenses of the Arrangers incurred in
connection with the syndication of this facility.
(b) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities, penalties and related expenses
(including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
and time charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by the L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by Holdings, the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to Holdings, the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
92
brought by a third party or by Holdings, the Borrower or any other Loan Party,
and regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities, penalties or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if Holdings, the
Borrower or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction. This
Section 10.04(b) shall not apply to Taxes, which shall be governed exclusively
by Section 3.01.
(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), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the 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 Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent ,the L/C Issuer and the Swing Line
Lender, the replacement of any Lender, termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.
93
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then, (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent, the L/C
Issuer and each Lender, and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (c) of this
Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (e) 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 (c) 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 L/C
Obligations and in Swing Line Loans at the time owing to it); provided that any
such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment
and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and
94
(B) in any case not described in subsection
(b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $1,000,000 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 assignee (or to an
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) Proportionate Amounts. Each partial assignment shall
be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender's rights and obligations in
respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for
any assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:
(A) the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;
(B) the consent of the Administrative Agent
(such consent not to be unreasonably withheld or delayed)
shall be required if such assignment is to a Person that is
not a Lender, an Affiliate of such Lender or an Approved Fund
with respect to such Lender;
(C) the consent of the L/C Issuer (such
consent not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more
Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender
(such consent not to be unreasonably withheld or delayed)
shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation
fee in the amount, if any, required as set forth in Schedule 10.06;
95
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the
case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall
be made to the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment
shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of 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. Notwithstanding the foregoing, unless at the
time of such assignment an Event of Default has occurred and is continuing,
neither the Lender nor any assignee thereof shall assign any portion of its
rights and obligations under this Agreement to a Person that is not a "United
States person" as defined in Section 7701(a)(30) of the Code.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the Administrative
Agent's Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any
of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or
a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the outstanding Letters of
Credit and/or the Loans (including such Lender's participations in L/C
96
obligations and/or Swing Line Loans) and/or the reimbursement obligations in
respect of Letters of Credit); 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, the Lenders and the L/C Issuer
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that the Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification that would (i) postpone any date
upon which any payment of money is scheduled to be made to such Participant,
(ii) reduce the principal, interest, fees or other amounts payable to such
Participant (provided, however, that the Lender may, without the consent of the
Participant, (A) amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or Letter of Credit reimbursement obligation or to
reduce any fee payable hereunder and (B) waive the right to be paid interest at
the Default Rate), or (iii) release any Guarantor from the Guaranty or all or
substantially all the Collateral, except in connection with a transaction
permitted by Section 7.05. 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. Notwithstanding the
foregoing, unless at the time of such sale an Event of Default has occurred and
is continuing, neither a Lender nor any assignee thereof shall sell any
participation in any portion of its rights and/or obligations under this
Agreement to a Person that is not a "United States person" as defined in Section
7701(a)(30) of the Code.
(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 is not a "United States person" within the meaning of Section
7701(a)(30) of the Code 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.
97
(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.
10.07 CONFIDENTIALITY. Each of the Administrative Agent, the Lenders
and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its Affiliates' respective partners, directors, officers, employees,
agents, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or any
of their respective Affiliates on a nonconfidential basis from a source other
than the Borrower.
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 Lender on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary, provided that, in the case of
information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer
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.
98
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to setoff and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and
all of the obligations of the Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the 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
99
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 REPLACEMENT OF LENDERS. (a) If any Lender requests
compensation under 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, if any Lender is a Defaulting Lender, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, 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:
(i) the Borrower shall have paid to the Administrative
Agent the assignment fee specified in Section 10.06(b);
(ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and L/C Advances,
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);
(iii) in the case of any such assignment resulting from a
claim for compensation under 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
(iv) such assignment does not conflict with applicable
Laws.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
(b) If, in connection with any proposed amendment, modification,
waiver or termination requiring the consent of all Lenders, the consent of
Required Lenders is obtained but the consent of any Lender whose consent is
100
required is not obtained (any such Lender whose consent is not obtained as
described in this Section 10.13(b) being referred to as a "Non-Consenting
Lender"), then, as long as the Lender acting as the Administrative Agent is not
a Non-Consenting Lender, at the Borrower's request, an Eligible Assignee
acceptable to the Administrative Agent shall have the right with the
Administrative Agent's consent and in the Administrative Agent's sole discretion
(but shall have no obligation) to purchase from such Non-Consenting Lender, and
such Non-Consenting Lender agrees that it shall, upon the Administrative Agent's
request, sell and assign to the Lender acting as the Administrative Agent or
such Eligible Assignee, all of the obligations of such Non-Consenting Lender
under this Agreement (including all of its Commitments, Loans and L/C
Obligations at the time owing to such Non-Consenting Lender) for an amount equal
to the principal amount thereof plus accrued and unpaid interest thereon through
the date of sale; provided, however, that such purchase and sale shall be
recorded in the Register maintained by the Administrative Agent and not be
effective until (x) the Non-Consenting Lender shall have received payment for
all of the obligations of such Non-Consenting Lender under this Agreement and
(y) the parties have complied with the requirements under Section 10.06(b)(iv).
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT
THE ADMINISTRATIVE AGENT SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) SUBMISSION TO JURISDICTION. EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
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, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
101
(c) WAIVER OF VENUE. EACH LOAN PARTY 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 BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16 USA PATRIOT ACT NOTICE. The Lender that is subject to the Act
(as hereinafter defined) and 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 the Lender to
identify the Borrower in accordance with the Act.
10.17 NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with
all aspects of each transaction contemplated hereby, each Loan Party
acknowledges and agrees, and acknowledges its Affiliates' understanding, that:
(i) the credit facilities provided for hereunder and any related arranging or
other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document)
are an arm's-length commercial transaction between each Loan Party and their
respective Affiliates, on the one hand, and the Administrative Agent and the
Arrangers, on the other hand, each Loan Party is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any
102
amendment, waiver or other modification hereof or thereof); (ii) in connection
with the process leading to such transaction, the Lender is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary, for
any Loan Party or any of their respective Affiliates, stockholders, creditors or
employees or any other Person; (iii) neither the Administrative Agent nor the
Arrangers has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of any Loan Party with respect to any of the
transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other
Loan Document (irrespective of whether the Administrative Agent or the Arrangers
have advised or are currently advising any Loan Party or any of their respective
Affiliates on other matters) and the Lender does not have any obligation to any
Loan Party or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Lender and its Affiliates may
be engaged in a board range of transactions that involve interests that differ
from those of the Loan Parties and their respective Affiliates, and the Lender
does not have any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Administrative Agent and
the Arrangers have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and each of the Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate.
Each of the Loan Parties hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Administrative Agent
and the Arrangers with respect to any breach or alleged breach of agency or
fiduciary duty.
10.18 AMENDMENT AND RESTATEMENT; BINDING EFFECT
(a) This Agreement shall become effective when it shall have been
executed by the Borrower and the Administrative Agent and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent
and each Lender and the L/C Issuer and, in each case, their respective
successors and assigns.
(b) On the Closing Date, the Existing Credit Agreement shall be
amended and restated in its entirety by this Agreement, and the Existing Credit
Agreement shall thereafter be of no further force and effect, except to evidence
(i) the incurrence by the Borrower of the "Obligations" under and as defined in
the Existing Credit Agreement (whether or not such "Obligations" are contingent
as of the Closing Date) and (ii) any action or omission performed or required to
be performed pursuant to such Existing Credit Agreement prior to the Closing
Date. This Agreement is not in any way intended to constitute a novation of the
obligations and liabilities existing under the Existing Credit Agreement or
evidence payment of all or any portion of such obligations and liabilities.
(c) The terms and conditions of this Agreement and the
Administrative Agent', the Lenders' and the LC Issuers' rights and remedies
under this Agreement and the other Loan Documents shall apply to all of the
Obligations incurred under the Existing Credit Agreement and the Indebtedness
issued thereunder.
103
(d) On and after the Closing Date, (i) all references to the
Existing Credit Agreement (or to any amendment or any amendment and restatement
thereof) in the Loan Documents (other than this Agreement) shall be deemed to
refer to the Existing Credit Agreement, as amended and restated hereby, (ii) all
references to any Article, Section or sub-clause of the Existing Credit
Agreement or in any Loan Document (but not herein) shall be amended to become,
mutatis mutandis, references to the corresponding provisions of this Agreement
and (iii) except as the context otherwise provides, on or after the Closing
Date, all references to this Agreement herein (including for purposes of
indemnification and reimbursement of fees) shall be deemed to be reference to
the Existing Credit Agreement, as amended and restated hereby.
(e) This amendment and restatement is limited as written and is
not a consent to any other amendment, restatement or waiver, whether or not
similar and, except as expressly provided herein or in any other Loan Document,
all terms and conditions of the Loan Documents remain in full force and effect
unless otherwise specifically amended hereby or any other Loan Document.
[Signature pages follow.]
104
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
L-1 IDENTITY SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer & Chief Financial Officer
BANK OF AMERICA, N.A., as Administrative
Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
BEAR, ▇▇▇▇▇▇▇ & CO. INC., as Joint Lead
Arranger and Joint Bookrunner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
BANK OF AMERICA, N.A., as Lender, L/C
Issuer and Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as
Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
WACHOVIA BANK, N.A., as
Co-Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Director
CREDIT SUISSE, CAYMAN ISLANDS BRANCH., as
Co-Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
[Lenders]
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------