EXHIBIT 10.6
CREDIT AGREEMENT
dated as of
December 28, 1999
among
HMTF Bridge Partners, L.P.
and
HM/Europe Coinvestors, C.V.,
as Initial Borrowers,
and any Future Borrowers from time to time parties hereto,
The Lenders and the Issuing Bank Parties Hereto,
and
The Chase Manhattan Bank,
as Administrative Agent,
Chase Securities Inc.,
as Co-Lead Arranger and Co-Book Manager,
Bank of America, N.A.,
as Syndication Agent,
and
Banc of America Securities LLC,
as Co-Lead Arranger and Co-Book Manager
U.S. $1,780,000,000 TERM LOAN FACILITY
ARTICLE 1 Definitions. . . . . . . . . . . . . . . 1
SECTION 1.1 . . . . . . . . . . . . . . . . . . . Defined Terms 1
SECTION 1.2 . . . . . . . . . . . . . . . . . . . Terms Generally 12
SECTION 1.3 . . . . . . . . . . . . . . . . . . . Accounting Terms; GAAP 13
ARTICLE 2 Term Loans . . . . . . . . . . . . . . . 13
SECTION 2.1 . . . . . . . . . . . . . . . . . . . Term Loans 13
SECTION 2.2 . . . . . . . . . . . . . . . . . . . Procedure for Term Loan Borrowing 13
SECTION 2.3 . . . . . . . . . . . . . . . . . . . Letters of Credit 14
SECTION 2.4 . . . . . . . . . . . . . . . . . . . Repayment of Loans; Evidence of Debt; etc 17
SECTION 2.5 . . . . . . . . . . . . . . . . . . . Termination and Reduction of Commitments 18
SECTION 2.6 . . . . . . . . . . . . . . . . . . . Prepayments 18
SECTION 2.7 . . . . . . . . . . . . . . . . . . . Conversion and Continuation Options 20
SECTION 2.8 . . . . . . . . . . . . . . . . . . . Minimum Amounts and Maximum Number of Tranches 20
SECTION 2.9 . . . . . . . . . . . . . . . . . . . Interest 20
SECTION 2.10 . . . . . . . . . . . . . . . . . . . Fees 21
SECTION 2.11 . . . . . . . . . . . . . . . . . . . Inability to Determine Interest Rate 22
SECTION 2.12 . . . . . . . . . . . . . . . . . . . Pro Rata Treatment and Payments. 22
SECTION 2.13 . . . . . . . . . . . . . . . . . . . Requirements of Law. 23
SECTION 2.14 . . . . . . . . . . . . . . . . . . . Taxes 24
SECTION 2.15 . . . . . . . . . . . . . . . . . . . Indemnity 26
SECTION 2.16 . . . . . . . . . . . . . . . . . . . Change of Lending Office 27
SECTION 2.17 . . . . . . . . . . . . . . . . . . . Replacement of Lenders 27
SECTION 2.18 . . . . . . . . . . . . . . . . . . . Nature of Obligations 28
SECTION 2.19 . . . . . . . . . . . . . . . . . . . Increase of Commitments 28
ARTICLE 3 Representations and Warranties . . . . . 29
SECTION 3.1 . . . . . . . . . . . . . . . . . . . Organization; Powers 29
SECTION 3.2 . . . . . . . . . . . . . . . . . . . Authorization; Enforceability 30
SECTION 3.3 . . . . . . . . . . . . . . . . . . . Governmental Approvals; No Conflicts 30
SECTION 3.4 . . . . . . . . . . . . . . . . . . . Compliance with Laws and Agreements 30
SECTION 3.5 . . . . . . . . . . . . . . . . . . . Investment and Holding Company Status 30
SECTION 3.6 . . . . . . . . . . . . . . . . . . . Material Adverse Effect 30
SECTION 3.7 . . . . . . . . . . . . . . . . . . . No Material Litigation 30
SECTION 3.8 . . . . . . . . . . . . . . . . . . . Disclosure 30
SECTION 3.9 . . . . . . . . . . . . . . . . . . . Investments 31
ARTICLE 4 Conditions Precedent . . . . . . . . . . 31
SECTION 4.1 . . . . . . . . . . . . . . . . . . . Conditions to Initial Funding 31
SECTION 4.2 . . . . . . . . . . . . . . . . . . . Additional Conditions for Each Credit Event 32
ARTICLE 5 Covenants. . . . . . . . . . . . . . . . 34
SECTION 5.1 . . . . . . . . . . . . . . . . . . . Notices of Material Events 34
SECTION 5.2 . . . . . . . . . . . . . . . . . . . Existence; Conduct of Business 34
SECTION 5.3 . . . . . . . . . . . . . . . . . . . Payment of Obligations 34
SECTION 5.4 . . . . . . . . . . . . . . . . . . . Compliance with Laws 34
SECTION 5.5 . . . . . . . . . . . . . . . . . . . Use of Proceeds 34
SECTION 5.6 . . . . . . . . . . . . . . . . . . . Additional Collateral 35
SECTION 5.7 . . . . . . . . . . . . . . . . . . . Financial Reporting 35
SECTION 5.8 . . . . . . . . . . . . . . . . . . . Additional Guarantors 36
SECTION 5.9 . . . . . . . . . . . . . . . . . . . Management and Advisory Agreements 36
SECTION 5.10 . . . . . . . . . . . . . . . . . . . Covenant to Pay 36
SECTION 5.11 . . . . . . . . . . . . . . . . . . . Margin Securities 36
ARTICLE 6 Negative Covenants . . . . . . . . . . . 36
SECTION 6.1 . . . . . . . . . . . . . . . . . . . Indebtedness 36
SECTION 6.2 . . . . . . . . . . . . . . . . . . . Liens 37
SECTION 6.3 . . . . . . . . . . . . . . . . . . . Fundamental Changes 37
SECTION 6.4 . . . . . . . . . . . . . . . . . . . Restricted Payments 37
SECTION 6.5 . . . . . . . . . . . . . . . . . . . Sale of Assets 37
ARTICLE 7 Events of Default. . . . . . . . . 38
ARTICLE 8 The Administrative Agent . . . . . . . . 41
SECTION 8.1 . . . . . . . . . . . . . . . . . . . Generally 41
SECTION 8.2 . . . . . . . . . . . . . . . . . . . Joint and Several Creditorship 43
ARTICLE 9 Miscellaneous. . . . . . . . . . . . . . 43
SECTION 9.1 . . . . . . . . . . . . . . . . . . . Notices 43
SECTION 9.2 . . . . . . . . . . . . . . . . . . . Waivers; Amendments 43
SECTION 9.3 . . . . . . . . . . . . . . . . . . . Expenses; Indemnity; Damage Waiver 44
SECTION 9.4 . . . . . . . . . . . . . . . . . . . Successors and Assigns 45
SECTION 9.5 . . . . . . . . . . . . . . . . . . . Survival 47
SECTION 9.6 . . . . . . . . . . . . . . . . . . . Counterparts; Integration; Effectiveness 48
SECTION 9.7 . . . . . . . . . . . . . . . . . . . Severability 48
SECTION 9.8 . . . . . . . . . . . . . . . . . . . Right of Setoff 48
SECTION 9.9 . . . . . . . . . . . . . . . . . . . GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS 48
SECTION 9.10 . . . . . . . . . . . . . . . . . . . WAIVER OF JURY TRIAL 49
SECTION 9.11 . . . . . . . . . . . . . . . . . . . Headings 49
SECTION 9.12 . . . . . . . . . . . . . . . . . . . Confidentiality 49
SECTION 9.13 . . . . . . . . . . . . . . . . . . . Syndication 50
SECTION 9.14 . . . . . . . . . . . . . . . . . . . Certainty of Funds 50
INDEX OF EXHIBITS
Exhibit A . . . . . . . . . . . . . . . . . . . . . Assignment and Acceptance
Exhibit B . . . . . . . . . . . . . . . . . . . . . Legal Opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP
Exhibit C . . . . . . . . . . . . . . . . . . . . . Legal Opinion of ▇▇▇▇▇ Dutilh
Exhibit D . . . . . . . . . . . . . . . . . . . . . Legal Opinion of Walkers
Exhibit E . . . . . . . . . . . . . . . . . . . . . Closing Certificate
Exhibit F . . . . . . . . . . . . . . . . . . . . . Affiliate Guarantee
Exhibit G . . . . . . . . . . . . . . . . . . . . . Investment Guarantee
Exhibit H . . . . . . . . . . . . . . . . . . . . . Note
Exhibit I . . . . . . . . . . . . . . . . . . . . . Pledge Agreement
Exhibit J . . . . . . . . . . . . . . . . . . . . . Letter Agreement
Exhibit K . . . . . . . . . . . . . . . . . . . . . Joinder Agreement
Exhibit L . . . . . . . . . . . . . . . . . . . . . Principal Agreement
INDEX OF SCHEDULES
Schedule 2.1. . . . . . . . . . . . . . . . . . . . Lender's Commitments
CREDIT AGREEMENT, dated as of December 28, 1999, among HMTF Bridge
Partners, L.P., a Delaware limited partnership, and HM/Europe Coinvestors, C.V.,
a limited partnership organized under the laws of the Kingdom of the Netherlands
(collectively, the "Initial Borrowers"), any Future Borrowers from time to time
parties hereto, the Lenders from time to time parties hereto, the Issuing Bank
referred to below, The Chase Manhattan Bank, as Administrative Agent, and Bank
of America, N.A., as Syndication Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR Loans" means Term Loans the rate of interest applicable to which is
based upon the Alternate Base Rate.
"Additional Lenders" has the meaning set forth in Section 9.13.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified 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.
"Affiliate Guarantees" means the collective reference to each guarantee
agreement executed and delivered by an Affiliate Guarantor, substantially in the
form of Exhibit F, as the same may be amended, supplemented or otherwise
modified from time to time.
"Affiliate Guarantors" means the collective reference to (a) each Affiliate
of ▇▇▇▇▇ Muse or Olympus that holds carried interests in any New Portfolio
Company (except to the extent that a carried interest is attributable to an
investment by a Specified Fund in such New Portfolio Company) and (b) HM & Co.
and each other Affiliate of ▇▇▇▇▇ Muse or Olympus that receives fee income
(whether in the form of management fees, transaction fees, investment banking
fees, advisory fees or otherwise) from or in respect of any New Fund, any New
Portfolio Company or any Investment Party (except to the extent that such fee
income is attributable to an investment by a Specified Fund in such New
Portfolio Company, with any allocation of such fee income attributable to a
Specified Fund and a New Fund being made in a manner equitable to the Lenders
hereunder), in each case whether now existing or subsequently formed.
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and
PAGE 2
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective from and including
the effective date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Margin" means, for any day and for each Type of Term Loan,
based on the then Available Qualified Subscription Amount, the rate per annum
set forth below:
Available Qualified
Level. . . Subscription Amount ABR Loans Eurodollar Loans
Level I. . $0 - $625,000,000 1.50% 2.50%
Level II. 625,000,001 - $1,250,000,000 1.00% 2.00%
Level III 1,250,000,001 - $1,875,000,000 .50% 1.50%
Level IV. Greater than $1,875,000,001 0% 1.00%
; provided that for the first 45 days following the Closing Date the Applicable
Margin shall be determined by reference to Level I of the above grid and
provided further that Level I of the above grid shall apply at all times while
an Event of Default shall have occurred and be continuing.
"Assessment Rate" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined in good faith by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignee" has the meaning set forth in Section 9.4(b).
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Available Commitment" means, as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment over (b) such Lender's
Credit Exposure.
"Available Excess Investment Commitment Amount" means, as to any Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's Investment
Commitment Amount over (b) such Lender's Credit Exposure.
PAGE 3
"Available Qualified Subscription Amount" means the Qualified Subscription
Amount less the aggregate Qualified Subscription Amounts utilized to make any
and all investments by the New Fund.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrowers" means the Initial Borrowers and any Future Borrower.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City or Dallas, Texas are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term Business Day shall also exclude any day on which banks
are not open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including any limited liability company interests in a limited liability
company, any limited or general partnership interests in a partnership, and any
and all warrants, rights or options to purchase any of the foregoing.
"Change in Control" means any of the following events: (a) ▇▇▇▇▇ Muse,
Olympus, or any of their respective principals or Affiliates cease to own of
record and beneficially a majority of the economic interests in any Borrower and
the power, directly or indirectly, to vote or direct the voting of Capital Stock
having a majority of the power to direct the management and policies of any
Borrower, (b) ▇▇▇▇▇ Muse, Olympus, or their respective principals or Affiliates
cease to Control each Guarantor, (c) ▇▇▇▇▇ Muse, its principals or Affiliates
cease to own of record and beneficially a majority of the economic interests in
Olympus and the power, directly or indirectly, to vote or direct the voting of
Capital Stock having a majority of the power to direct the management and
policies of Olympus, or (d) ▇▇▇▇▇ Muse, its principals or Affiliates cease to
Control Olympus.
"Chase" means The Chase Manhattan Bank.
"Closing Date" means December 28, 1999.
"Co-Investor" means a Direct Co-Investor or an Indirect Co-Investor, as the
case may be.
PAGE 4
"Co-Investment" means a Direct Co-Investment or an Indirect Co-Investment,
as the case may be.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, as to any Lender, the commitment of such Lender to make
Term Loans and to participate in Letters of Credit hereunder, in an amount so
that such Lender's Credit Exposure does not exceed such Lender's commitment
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.5 or 6.1(e), (b) reduced or increased from time to time as the result
of an Assignment and Acceptance or (c) increased pursuant to Section 2.19. The
initial amount of each Lender's Commitment is set forth on Schedule 2.1, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable.
"Control" means the possession of the power, directly or indirectly, to
vote more than 50% of the Capital Stock having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender's Term Loans and its LC Exposure
at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Direct Co-Investment" means an investment in any Borrower in connection
with such Borrower's Investment in a New Portfolio Company in an amount not less
than 2.98% of such Borrower's total Investment in such New Portfolio Company.
"Direct Co-Investor" means the principals of ▇▇▇▇▇ Muse or Olympus, their
families and employees of ▇▇▇▇▇ Muse and Olympus who make a Direct Co-Investment
in any Borrower with respect to such Borrower's investment in a New Portfolio
Company.
"Directly Owned Investment Party" means any Person in which any Borrower
and, if the Co-Investment is made as an Indirect Co-Investment, any Indirect
Co-Investor, directly makes an Investment, and which Person directly or
indirectly makes the same Investment in the New Portfolio Company.
"Document Party" has the meaning set forth in Section 9.12.
"dollars" or "$" refers to lawful money of the United States.
"EquityCo" means HM/Europe Equity Investors, C.V., a limited partnership
organized under the laws of the Kingdom of the Netherlands.
"Eurodollar Base Rate" means with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate at
which Chase is offered dollar deposits at or about 10:00 A.M., New York, New
York time, two Business Days prior to
PAGE 5
the beginning of such Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Loans" means Term Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day
(rounded upward to the nearest 1/100th of 1%) equal to (a) the Eurodollar Base
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Eurodollar Tranche" the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Eurodollar Loans shall
originally have been made on the same day).
"Event of Default" has the meaning assigned to such term in Article 7.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" means the fees payable pursuant to Section 2.10.
"Funding Fee" has the meaning assigned to such term in Section 2.10(a).
"Future Borrower" means any Person that becomes a borrower hereunder
pursuant to any Joinder Agreement.
"GAAP" means generally accepted accounting principles in the United States
from time to time.
"Governmental Authority" means the government of the United States, any
other nation or 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.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner,
PAGE 6
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantor" shall mean any Affiliate Guarantor or Investment Guarantor.
"▇▇▇▇▇ Muse" means HMTF Operating, L.P., a Texas limited partnership
(formerly known as Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated).
"HM & Co." means ▇▇▇▇▇, Muse & Co. Partners, L.P., a Texas limited
partnership.
"Increase Effective Date" has the meaning set forth in Section 2.19.
"Increase Response Date" has the meaning set forth in Section 2.19.
"Increase Request" has the meaning set forth in Section 2.19.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indirect Co-Investment" means an investment with any Borrower in
connection with such Borrower's Investment in a New Portfolio Company in an
amount not less than 2.98% of such total Investment in such New Portfolio
Company.
"Indirect Co-Investor" means (a) EquityCo or (b) any other Person formed
for the purpose of making an Indirect Co-Investment with any Borrower in a New
Portfolio Company,
PAGE 7
in any case, which is owned by the principals of ▇▇▇▇▇ Muse or Olympus, or the
families and employees of ▇▇▇▇▇ Muse or Olympus.
"Initial Borrowers" means HMTF Bridge Partners, L.P., a Delaware limited
partnership, and HM/Europe Coinvestors, C.V., a limited partnership organized
under the laws of the Kingdom of the Netherlands.
"Interest Payment Date" means (a) as to any ABR Loan, the date which is the
three month anniversary of the Closing Date and each date which is the three
month anniversary of the prior Interest Payment Date to occur while such ABR
Loan is outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Term
Loan, the date of any repayment or prepayment made in respect thereof.
"Interest Period" means, as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three, six, or to the
extent available to all Lenders, nine or twelve months thereafter, as selected
by any Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six, or to the extent available to all Lenders,
nine or twelve months thereafter, as selected by any Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day,
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period and (iii) no Borrower may
select an Interest Period that would extend beyond the Maturity Date.
"Investment" means the collective reference to any direct or indirect
investment in a New Portfolio Company by a Borrower. Investments shall not
include debt securities or borrowings of an Investment Party that, in the
judgment of the Borrower, would customarily be issued or borrowed in a bridge
financing to an offering or private placement in anticipation of or to a
registered public offering or in a private placement under Rule 144A of the
Securities Act of 1933, as amended.
"Investment Commitment Amount" means the amount on the date giving rise to
this calculation, as calculated by the Borrowers and the Administrative Agent,
rounded upward to the nearest $500,000.00, that represents (i) the Term Loans,
(ii) the LC Exposure and (iii) all interest and fees previously accrued or which
will be payable pursuant to Sections 2.9, 2.10(a) and 2.10(c) through the
Maturity Date assuming no pre-payments pursuant to Section 2.6 prior to the
Maturity Date (using for future periods not covered by existing Interest
Periods, the Eurodollar
PAGE 8
Rate available on the date of any determination for a three (3) month Interest
Period and using the current Applicable Margin). The Investment Commitment
Amount of any Lender at any time shall be its Loan Percentage of the total
Investment Commitment Amount.
"Investment Guarantee" means the collective reference to each Investment
Guarantee Agreement executed and delivered by an Investment Guarantor,
substantially in the form of Exhibit G, as the same may be amended, supplemented
or otherwise modified from time to time.
"Investment Guarantor" shall mean any Indirect Co-Investor.
"Investment Party" means any Person in which any Borrower directly or
indirectly makes an Investment, which Person directly or indirectly makes the
same Investment in a New Portfolio Company.
"Investment Term Loan" has the meaning set forth in Section 2.10(a) hereof.
"Investor" means any Person which has executed a Subscription Agreement
(that has become effective pursuant to its terms) and the signature page to the
limited partnership agreement of New Fund and has thereby become obligated to
make capital contributions to New Fund in exchange for limited partnership
interests therein, subject only to such customary conditions as are reasonably
acceptable to the Administrative Agent.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.3(i).
"Joinder Agreement" means an agreement substantially in the form of Exhibit
K, as the same may be amended, supplemented or otherwise modified from time to
time.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of any outstanding Letter of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of any Borrower at such time. The LC Exposure of any Lender at any time shall
be its Loan Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"Letter Agreement" means the Letter Agreement dated as of the date hereof
between ▇▇▇▇▇ Muse, Olympus and the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit J, as the same may be amended,
supplemented or otherwise modified from time to time.
"Letter of Credit" means a letter of credit issued pursuant to Section 2.3,
a bank guaranty or similar instrument treated as a letter of credit for bank
regulatory purposes, in a form
PAGE 9
reasonably acceptable to the Administrative Agent and the Issuing Bank, to
support the Borrowers' agreement to make an Investment.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means the collective reference to this Agreement, the
Affiliate Guarantees, the Investment Guarantees, the Pledge Agreement, the
Letter Agreement, the Principal Agreement, the Joinder Agreements and the Notes.
"Loan Parties" means the collective reference to the Initial Borrowers, any
Future Borrowers, the Guarantors, ▇▇▇▇▇ Muse, Olympus and any other Person party
to a Loan Document.
"Loan Percentage" means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender's Commitment, and, if the
Commitments have terminated, the aggregate outstanding principal amount of the
Term Loans represented by such Lender's Term Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (b) the rights of or benefits available to the Lenders under any
Loan Document.
"Maturity Date" means the date which is 364 days after the Closing Date.
"New Fund" or "New Funds" means (a) any investment fund or funds formed
after the date hereof and sponsored, advised or managed by ▇▇▇▇▇ Muse, Olympus
or any of their respective Affiliates and (b) any other Person which may acquire
an Investment in an Investment Party or a New Portfolio Company or any part
thereof.
"New Portfolio Company" means a Person, having as some or all of its
shareholders, partners or members, as the case may be, directly or indirectly,
any of the Borrowers, and, if applicable, one or more Indirect Co-Investors.
"Non-Consenting Lender" has the meaning specified in Section 2.17.
"Non-Excluded Taxes" has the meaning set forth in Section 2.14(a).
"Non-Funding Lender" has the meaning set forth in Section 2.12(c).
"Non-U.S. Lender" has the meaning set forth in Section 2.14(b).
"Note" has the meaning set forth in Section 2.4(e).
PAGE 10
"Obligations" means the collective reference to the unpaid principal of and
interest on the Term Loans, the LC Disbursements and all other obligations and
liabilities of the Borrowers to the Administrative Agent and the Lenders
(including, without limitation, interest accruing at the then applicable rate
provided in this Agreement after the maturity of the Term Loans and Letters of
Credit, LC Disbursements and interest accruing at the then applicable rate
provided in this Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any of the Borrowers whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrowers pursuant to the terms of this Agreement).
"Olympus" means Olympus Real Estate Corporation, a Delaware corporation.
"Participant" has the meaning set forth in Section 9.4(e).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity of whatever nature.
"Pledge Agreement" means the Pledge Agreement executed and delivered by the
Pledgors, substantially in the form of Exhibit I, as the same may be amended,
supplemented or otherwise modified from time to time.
"Pledged Interests" shall have the meaning set forth in the Pledge
Agreement.
"Pledgors" shall mean (i) on the Closing Date, the Initial Borrowers and
EquityCo, and (ii) thereafter, any Future Borrower and any Indirect Co-Investor.
"Principal Agreement" means the Principal Agreement executed and delivered
by each principal of ▇▇▇▇▇ Muse and Olympus, substantially in the form of
Exhibit L, as the same may be amended, supplemented or otherwise modified from
time to time.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its principal office in New
York, New York; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to a customer.
"Qualified Investors" means those Investors reasonably acceptable to the
Administrative Agent. Any Investor shall be subject to exclusion for: (i)
default under or breach of (A) its respective Subscription Agreement or (B) the
limited partnership agreement of New Fund; (ii) bankruptcy or other insolvency
event or proceeding with respect to such Investor; (iii) appointment of a
receiver with respect to such Investor; (iv) repudiation by such Investor of its
obligation to make capital contributions to New Fund pursuant to its
Subscription Agreement
PAGE 11
and the limited partnership agreement of New Fund; and (v) any material adverse
change which affects the ability of such Investor to fulfill its obligations
under the limited partnership agreement of New Fund or its Subscription
Agreement.
"Qualified Subscription Amount" means the aggregate dollar amount of all
subscriptions to New Fund by all Qualified Investors as to which the Borrowers
have delivered to the Administrative Agent a fully executed copy of one or more
Subscription Agreements (including all supporting documentation including, but
not limited to, the executed signature page to the limited partnership agreement
of New Fund).
"Register" has the meaning set forth in Section 9.4(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
partners and advisors of such Person and such Person's Affiliates.
"Requested Amount" has the meaning set forth in Section 2.19.
"Required Lenders" at any time, Lenders holding more than 50% of (a) the
Commitments or (b) if the Commitments have been terminated, the sum of (i)
aggregate unpaid principal amount of the Term Loans and (ii) outstanding LC
Exposure.
"Requirement of Law" as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in 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 Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary or any officer having
responsibilities similar to any of the foregoing.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
Capital Stock of any Person, 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 shares of Capital Stock of such Person or any option, warrant or
other right to acquire any such shares of Capital Stock of such Person.
"Specified Fund" means Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund II, L.P.,
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P., Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇
Equity Fund IV, L.P., Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Private Equity Fund IV, L.P.,
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Europe Fund, L.P., Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Europe
Private Fund, L.P., Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Latin America Fund, L.P. and
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Latin America Private Fund, L.P.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental
PAGE 12
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Eurodollar Rate,
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subscription Agreement" shall mean the Subscription Agreement in the form
customarily used by ▇▇▇▇▇ Muse or Olympus (and then by any New Fund) pursuant to
which a Person agrees to acquire limited partnership interests in New Fund in
accordance with the terms thereof, which such Subscription Agreement obligates
such Person to sign the limited partnership agreement of New Fund.
"Term Loans" has the meaning set forth in Section 2.1.
"Three-Month Secondary CD Rate" means, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 12:00 noon, New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Ticking Fee" has the meaning set forth in Section 2.10(b).
"Transactions" means the execution, delivery and performance by the Loan
Parties of the Loan Documents, the borrowing of Term Loans, the issuance of
Letters of Credit and the use of the proceeds thereof, the grant of the Liens
under the Loan Documents and the making of each Investment.
"Type" as to any Term Loans, its nature as an ABR Loan or a Eurodollar
Loan.
"United States" means the United States of America.
SECTION 1.2 Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any
PAGE 13
agreement, instrument or other document herein 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), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) 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.
SECTION 1.3 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time.
ARTICLE 2
Term Loans
SECTION 2.1 Term Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make one or more term loans (each, a
"Term Loan") to the Borrowers on the Closing Date and on any Business Day
thereafter prior to the Maturity Date in an aggregate principal amount not to
exceed such Lender's Available Commitment. The initial amount of each Lender's
Commitment is set forth on Schedule 2.1, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The Term Loans may from time to time be (a) Eurodollar Loans or (b) ABR Loans,
as determined by the applicable Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.7. Each Term Loan shall be made as
part of a borrowing consisting of Term Loans made by the Lenders ratably in
accordance with their respective Commitments. Amounts repaid or prepaid on
account of the Term Loans may not be reborrowed. The Term Loans shall be made
only if the total Investment Commitment Amounts shall not exceed the total
Commitments.
SECTION 2.2 Procedure for Term Loan Borrowing. Any Borrower shall
give the Administrative Agent irrevocable notice (including telephonic notice
confirmed in writing) (which notice must be received by the Administrative Agent
(a) in the case of Eurodollar Loans, not later than 11:00 a.m., New York, New
York time, three Business Days prior to the date of the anticipated borrowing
and (b) in the case of ABR Loans, not later than 12:00 noon, New York, New York
time, one Business Day prior to the date of the anticipated borrowing)
requesting that the Lenders make the Term Loans on such borrowing date and
specifying the amount to be borrowed; provided that a notice of an ABR Loan to
finance the reimbursement of an LC Disbursement as required by Section 2.3(e)
shall be deemed given one Business Day prior to the date of such drawing. The
Term Loans made on the Closing Date shall initially be ABR Loans. Upon receipt
of such notice, the Administrative Agent shall promptly notify each Lender
thereof. Not later than 11:00 a.m., New York, New York time, on the relevant
borrowing date, each Lender shall make available to the Administrative Agent at
its office specified in Section 9.1 an
PAGE 14
amount in immediately available funds equal to the Term Loan to be made by such
Lender. The Administrative Agent shall credit the account of the applicable
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders in immediately available funds; provided that ABR Loans made to fund the
reimbursement of an LC Disbursement as provided in Section 2.3(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
SECTION 2.3 Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, any Borrower may request the issuance of a
Letter of Credit, for the account of such Borrower on the Closing Date and on
any Business Day thereafter not later than 5 Business Days prior to the Maturity
Date. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by such Borrower to, or entered into by
such Borrower with, the Issuing Bank relating to such Letter of Credit, the
terms and conditions of this Agreement shall control.
(b) Notice of Issuance; Certain Conditions. To request the issuance of
a Letter of Credit, a Borrower shall deliver to the Issuing Bank and the
Administrative Agent (at least three Business Days in advance of the requested
date of issuance, unless otherwise agreed to with the Issuing Bank), a notice
requesting the issuance of such Letter of Credit, the date of issuance, the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare such Letter of
Credit, accompanied by a duly completed and executed letter of credit
application in the Issuing Bank's standard form for such Letter of Credit. A
Letter of Credit, shall be issued only if (and upon issuance, the Borrowers
shall be deemed to represent and warrant that), after giving effect to such
issuance, (i) the LC Exposure shall not exceed $250,000,000, (ii) no Letter of
Credit shall have a face amount in excess of $100,000,000, and (iii) the total
Investment Commitment Amounts shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire not later than
five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Loan Percentage of the aggregate amount available to be drawn under such Letter
of Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Loan Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the
date due as provided in Section 2.3(e), or of any reimbursement payment required
to be refunded to the Borrowers for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of each Letter of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
PAGE 15
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than (a) 12:00 noon, New York, New York time, on the date
that such LC Disbursement is made, if the applicable Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York, New York
time, one Business Day prior to such date or (b) if such notice has not been
received by the applicable Borrower prior to such time on such date, then not
later than 12:00 noon, New York, New York time, two Business Days immediately
following the day that the Borrowers receive such notice; provided that, if an
Event of Default set forth in Article 7(g) shall not have occurred and be
continuing, the Borrowers shall be deemed to have requested in accordance with
Section 2.2 that such payment be financed with an ABR Loan in an equivalent
amount and, to the extent so financed, the Borrowers' obligation to make such
payment shall be discharged and replaced by the resulting ABR Loan. If the
Borrowers fail to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from
the Borrowers in respect thereof and such Lender's Loan Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to
Administrative Agent its Loan Percentage of the payment then due from the
Borrowers, in the same manner as provided in Section 2.2 with respect to Term
Loans made by such Lender (and Section 2.2 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Borrowers pursuant to this Section 2.3(e), the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this Section 2.3(e) to reimburse the Issuing Bank,
then to such Lenders and the Issuing Bank as their interest may appear. Any
payment made by a Lender pursuant to this Section 2.3(e) to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of ABR Loans as
contemplated above) shall not constitute a Term Loan and shall not relieve the
Borrowers of their obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers' obligation to reimburse LC
Disbursements as provided in Section 2.3(e) shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of a Letter of Credit or
this Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or
any of the provisions of a Letter of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right that
any Borrower, or any other Person may at any time have against the beneficiary
under a Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other Person, whether in connection with this Agreement or any
other related or unrelated agreement or transaction;
PAGE 16
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect; and
(v) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might but for the provisions of this Section, constitute a legal
or equitable discharge of any Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of a Letter of Credit or any
payment or failure to make any payment thereunder, including any of the
circumstances specified in clauses (i) through (v) above, as well as any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to a Letter of Credit (including
any document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrowers to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by each of the Borrowers to the extent permitted by applicable
law) suffered by any Borrower that are caused by the Issuing Bank's failure to
exercise the agreed standard of care (as set forth below) in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that the Issuing Bank shall
have exercised the agreed standard of care in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank. Without limiting the
generality of the foregoing, it is understood that the Issuing Bank may accept
documents that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, without responsibility for further investigation,
and may make payment upon presentation of documents that appear on their face to
be in substantial compliance with the terms of such Letter of Credit; provided
that the Issuing Bank shall have the right, in its reasonable discretion, to
decline to accept such documents and to make such payment if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under each Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrowers of their
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrowers reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans;
PAGE 17
provided, that, if the Borrowers fail to reimburse such LC Disbursement when due
pursuant to Section 2.3(e), then Section 2.9(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to
Section 2.3(e) to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Borrowers, the Administrative Agent,
and the successor Issuing Bank. The Administrative Agent shall notify the
Lenders of any such replacement of the Issuing Bank. At the time any such
replacement shall become effective, the applicable Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.10. From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the Issuing
Bank under this Agreement with respect to any Letter of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to any Letter of Credit issued by
it prior to such replacement.
SECTION 2.4 Repayment of Loans; Evidence of Debt; etc. (a) The
Borrowers hereby unconditionally promise to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Term Loans of
such Lender on the Maturity Date (or such earlier date on which the Term Loans
shall become due and payable pursuant to Article 7).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from the Term Loans of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.4(c), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Term Loan made hereunder, including each Term
Loan evidenced by a Note, the applicable Borrower and Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the respective Borrowers to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the various Borrowers and each Lender's
share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.4(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded, absent manifest error; provided,
however, that the failure of any Lender or the Administrative Agent to maintain
the Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrowers to repay (with applicable interest) the
Term Loans made to the Borrowers by such Lender in accordance with the terms of
this Agreement.
PAGE 18
(e) Each Borrower hereby agrees that, upon the request to the
Administrative Agent by any Lender, such Borrower will execute and deliver to
such Lender a promissory note of such Borrower evidencing the Term Loans of such
Lender, substantially in the form of Exhibit H, with appropriate insertions as
to date and principal amount (a "Note").
SECTION 2.5 Termination and Reduction of Commitments. (a) Unless
previously terminated by the Borrowers in accordance with this Agreement, the
Commitments shall terminate on the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $1,000,000 and (ii) the Borrowers shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Term
Loans in accordance with Section 2.6, the sum of the Credit Exposures would
exceed the total Commitments.
(c) The Borrowers shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under Section 2.5(b) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by a Borrower pursuant to this Section
2.5(c) shall be irrevocable; provided that a notice of termination of the
Commitments delivered by a Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by such Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
SECTION 2.6 Prepayments. (a) The Borrowers may at any time and
from time to time prepay the Term Loans, in whole or in part, without premium or
penalty, upon irrevocable notice (including telephonic notice confirmed in
writing) delivered to the Administrative Agent at least three Business Days
prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of ABR Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each; provided that, if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrowers
shall also pay any amounts owing pursuant to Section 2.15. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice, together with
accrued interest thereon, shall be due and payable on the date specified
therein; provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.5, then such notice of prepayment may be revoked if such notice is revoked in
accordance with Section 2.5.
(b) If any Capital Stock shall be issued by, or any capital
contribution shall be made to, any Borrower, any Indirect Co-Investor or any
Investment Party (other than with respect to an
PAGE 19
Investment in a New Portfolio Company and other than with respect to any
Co-Investment) or if any Borrower, any Indirect Co-Investor or any Investment
Party (other than a New Portfolio Company and other than ratably with respect to
any Co-Investment) receives any Restricted Payment, 100% of the net cash
proceeds thereof received by such Borrower or Indirect Co-Investor shall be
applied toward the prepayment in full of the Term Loans, second, to repay all LC
Disbursements and third, to cash collateralize any outstanding Letter of Credit
on terms reasonably satisfactory to the Administrative Agent. All prepayments
made by a Borrower or an Indirect Co-Investor in accordance with this Section
2.6(b) shall result in a pro rata reduction of the Commitments.
(c) Upon any sale, assignment, conveyance, transfer or other
disposition (in whole or in part) of any outstanding interest in a Borrower or
in an Indirect Co-Investor (other than any sale, assignment, conveyance,
transfer or other disposition by a Co-Investor to any other Co-Investor) or any
outstanding interest of a Borrower or any Indirect Co-Investor in any Investment
Party or a New Portfolio Company, 100% of the net cash proceeds (taking into
account any necessary escrows) thereof received by such Borrower or such
Indirect Co-Investor (less the ratable interest of any Co-Investors) shall be
applied on the date thereof first toward the prepayment in full of the Term
Loans, together with accrued interest thereon, second, to repay all LC
Disbursements and third, to cash collateralize any outstanding Letter of Credit
on terms reasonably satisfactory to the Administrative Agent; provided, however,
if Borrower or any Investment Party shall sell, transfer or otherwise dispose of
"margin stock" as such term is defined in Regulation U of the Board, the net
proceeds from such sale shall be held by the Borrower or such Investment Party,
as the case may be, in cash or marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government maturing on or
within one year from the date of such sale until the Maturity Date; provided,
further, that in the event that an interest in a Borrower or an Indirect
Co-Investor, or the interest of a Borrower or Indirect Co-Investor in any
Investment Party or New Portfolio Company which shall not constitute "margin
stock" shall be sold for more than the cost of the Investments held by such
Borrower, Indirect Co-Investor, Investment Party or New Portfolio Company
(including, without limitation, any interest and fees relating thereto), the
amount of net cash proceeds in excess of such cost shall be held in a cash
collateral account in the name and under the sole dominion and control of the
Administrative Agent as security for the Obligations. All prepayments made by a
Borrower in accordance with this Section 2.6(c) shall result in a pro rata
reduction of the Commitments.
(d) The application of any prepayment pursuant to paragraphs (b) or (c)
of this Section 2.6 shall be made first to ABR Loans and second to Eurodollar
Loans. Amounts prepaid on account of the Term Loans may not be reborrowed.
(e) Notwithstanding anything to the contrary contained herein, in the
event that a Borrower would incur costs pursuant to Section 2.15 as a result of
any payment due as a result of any prepayment to be made pursuant to this
Section 2.6, such Borrower, at its option, may deposit the amount of such
payment with the Administrative Agent, for the benefit of the Lenders who would
have received such payment, in a cash collateral account until the end of the
applicable Interest Period at which time such payment shall be made. Each
Borrower hereby grants to the Administrative Agent, for the benefit of such
Lenders, a security interest in all amounts in which such Borrower has any
right, title or interest which are from time to time on
PAGE 20
deposit in such cash collateral account and expressly waives all rights (which
rights the Borrowers hereby acknowledge and agree are vested exclusively in the
Administrative Agent) to exercise dominion or control over any such amounts.
SECTION 2.7 Conversion and Continuation Options. (a) Any Borrower
may elect from time to time to convert its Eurodollar Loans to ABR Loans by
giving the Administrative Agent at least one Business Day's prior irrevocable
notice of such election, provided that if such conversion of Eurodollar Loans is
made other than on the last day of an Interest Period with respect thereto, then
such Borrower shall pay the Lenders any amounts due pursuant to Section 2.15.
Any Borrower may elect from time to time to convert its ABR Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no ABR Loan may be
converted into a Eurodollar Loan when (i) any Event of Default has occurred and
is continuing and (ii) the Administrative Agent or the Required Lenders have
determined in its or their reasonable discretion not to permit such conversions.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the giving of
irrevocable notice by the applicable Borrower to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, of the length of the next Interest Period to be applicable
to such Loans, provided that no Eurodollar Loan may be continued as such when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined in its or their reasonable
discretion not to permit such continuations, and provided, further, that if any
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.
SECTION 2.8 Minimum Amounts and Maximum Number of Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in minimum
amounts of $5,000,000 and incremental amounts of $500,000 in excess thereof and
shall be made pursuant to such elections so that, after giving effect thereto no
more than ten Eurodollar Tranches shall be outstanding at any one time.
SECTION 2.9 Interest. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Term Loan, (ii) any
interest payable thereon or (iii) any Fees or any other amount payable hereunder
(including LC Disbursements)
PAGE 21
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), the principal of the Term Loans and any such overdue interest, Fees
or other amount shall bear interest at a rate per annum which is (x) in the case
of principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section 2.9 plus 2% or (y) in the case of any
such overdue interest, Fees or other amount, the rate in effect at such time
pursuant to paragraph (b) of this Section 2.9 plus 2%, in each case from the
date of such non-payment until such overdue principal, interest, Fees or other
amount is paid in full (before as well as after receipt of a judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date
and the Maturity Date, provided that interest accruing pursuant to paragraph (c)
of this Section 2.9 shall be payable from time to time on demand.
(e) Whenever it is calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and, otherwise, interest shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the applicable Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Term Loan resulting from a change in the Alternate Base Rate shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify
the applicable Borrower and the Lenders of the effective date and the amount of
each such change in interest rate.
(f) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of any Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate in respect of its Eurodollar Loan.
SECTION 2.10 Fees. (a) The Borrowers agree to pay to the
Administrative Agent, for the account of each Lender, a funding fee (the
"Funding Fee") equal to (i) 1.0% of each Term Loan made to fund an Investment
(and not for the payment of interest and fees) (each borrowing of such a Term
Loan, an "Investment Term Loan"), payable on the date of the funding of each
such Investment Term Loan, plus (ii) 0.5% of the outstanding amount of each
Investment Term Loan on the seven month anniversary of the funding of such
Investment Term Loan, plus (iii) 0.5% of the outstanding amount of each
Investment Term Loan on the nine month anniversary of the funding of such
Investment Term Loan and (iv) 1.0% of the outstanding amount of each Investment
Term Loan on the eleven month anniversary of the funding of such Investment Term
Loan. Each Funding Fee in respect of an Investment Term Loan shall be payable
on the borrowing date of such Investment Term Loan and on the seven, nine and
eleven month anniversaries of the borrowing date of such Investment Term Loan.
(b) The Borrowers agree to pay to the Administrative Agent, for the
account of each Lender, a ticking fee (the "Ticking Fee") in the amount of 0.5%
per annum on the average daily amount of the Available Excess Investment
Commitment Amount, which shall be paid by the Borrowers to the Administrative
Agent on June 30, 2000 and the Maturity Date (or if this
PAGE 22
Agreement is terminated prior to the Maturity Date, the date this Agreement is
terminated), respectively.
(c) Each Borrower shall pay to the Administrative Agent, for the
account of the Issuing Bank and the Lenders, a letter of credit commission with
respect to each Letter of Credit issued for its account, in an amount equal to
the Applicable Margin with respect to Eurodollar Loans on the average daily face
amount of such Letter of Credit, payable quarterly in arrears on each Interest
Payment Date and on the Maturity Date. A portion of such letter of credit
commission equal to 0.125% of the average daily face amount of the Letters of
Credit shall be payable to the Issuing Bank for its own account, and the
remaining portion of such letter of credit commission shall be payable to the
Issuing Bank and the Lenders to be shared ratably among them in accordance with
their respective Loan Percentages.
(d) For purposes of calculating the fees payable by the Borrowers under
this Section 2.10, all prepayments or repayments of the Term Loans shall be
treated as being paid in the order such Term Loans were made from and after the
Closing Date irrespective of the Borrower thereof.
SECTION 2.11 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period (or during any Interest Period):
(a) the Administrative Agent shall have determined (which
determination, in the absence of manifest error, shall be conclusive and binding
upon the Borrowers) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their Term Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
each Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (i) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (ii) any Term Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (iii) any outstanding Eurodollar Loans shall
be converted to ABR Loans on the last day of the Interest Period applicable
thereto. Until such notice has been withdrawn by the Administrative Agent
(which the Administrative Agent agrees to do when the circumstances that
prompted the delivery of such notice no longer exist), no further Eurodollar
Loans shall be made or continued as such, nor shall any Borrower have the right
to convert ABR Loans to Eurodollar Loans.
SECTION 2.12 Pro Rata Treatment and Payments. (a) Each payment
(including each prepayment) by a Borrower on account of principal of and
interest on, and fees with respect to, the Term Loans and the Letters of Credit
shall be made pro rata according to the respective outstanding principal amounts
of the Term Loans then held by the Lenders or Issuing Bank, as the case may be.
PAGE 23
(b) All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York,
New York time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's office specified in
Section 9.1, in dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day (except, in the case of Eurodollar Loans, as otherwise
provided in clause (i) of the definition of "Interest Period"). In the case of
any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
(c) Notwithstanding that a Lender (a "Non-Funding Lender") has (x)
failed to make a Term Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Term Loan or (y) given notice to any Borrower or the Administrative Agent that
it will not make, or that it has disaffirmed or repudiated any obligation to
make, any Term Loans, in each case, by reason of the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 or otherwise, any
payment made on account of the principal of the Term Loans outstanding shall be
made pro rata according to the respective outstanding principal amounts of such
Term Loans; and any payment made on account of interest on the Term Loans shall
be made pro rata according to the respective amounts of accrued and unpaid
interest and/or fees due and payable on such Term Loans with respect to which
such payment is being made. The Borrowers agree to give the Administrative
Agent such assistance in making any determination pursuant to this paragraph as
the Administrative Agent may reasonably request. Any such determination by the
Administrative Agent shall be conclusive and binding on the Lenders.
SECTION 2.13 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender or the Issuing Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender or the Issuing Bank to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such
Lender or Issuing Bank in respect thereof (except Non-Excluded Taxes covered by
Section 2.14, the establishment of a tax based on the net income of such Lender
or Issuing Bank and changes in the rate of tax on the net income of such Lender
or Issuing Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder or on any Issuing Lender with respect to any Letter of
Credit; or
PAGE 24
(iii) shall impose on such Lender or Issuing Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Bank, by an amount which such Lender or Issuing Bank deems to be
material, of making, converting into, continuing or maintaining Eurodollar Loans
or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the applicable Borrower
shall promptly pay such Lender or the Issuing Bank, as the case may be, upon its
demand, any additional amounts necessary to compensate such Lender or Issuing
Bank for such increased cost or reduced amount receivable. If a Borrower
notifies the Administrative Agent within five Business Days after any Lender
notifies such Borrower of any increased cost pursuant to the foregoing
provisions of this Section 2.13(a), such Borrower may covert all Eurodollar
Loans of such Lender then outstanding into ABR Loans in accordance with Section
2.7 and shall, additionally, reimburse such Lender for any cost in accordance
with Section 2.15.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
Issuing Bank or any corporation controlling such Lender or Issuing Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date hereof shall
have the effect of reducing the rate of return on such Lender's, such Issuing
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender, such Issuing Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank
to be material, then from time to time, after submission by such Lender or
Issuing Bank to the Borrowers through the Administrative Agent of a written
request therefor, the Borrowers shall pay to such Lender or Issuing Bank such
additional amount or amounts as will compensate such Lender or Issuing Bank for
such reduction.
(c) A certificate as to any additional amounts payable pursuant to this
Section 2.13 showing in reasonable detail the calculation thereof and certifying
that it is generally charging such costs to other similarly situated borrowers
under similar credit facilities submitted by any Lender or Issuing Bank to the
Borrowers through the Administrative Agent shall be conclusive in the absence of
manifest error, provided that the determination of such amounts shall be made in
good faith in a manner generally consistent with such Lender's or Issuing Bank's
standard practices. The obligations of the Borrowers pursuant to this Section
2.13 shall survive the termination of this Agreement and the payment of the Term
Loans and all other amounts payable hereunder for a period of nine months
thereafter. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.13, it shall promptly (and in any event no later than
90 days after such Lender becomes entitled to make such claim) notify the
Borrowers through the Administrative Agent of the event by reason of which it
has become so entitled.
SECTION 2.14 Taxes. (a) All payments made by the Borrowers under this
Agreement, except as provided in this Section 2.14, shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter
PAGE 25
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrowers shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of this
Section, (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time the Lender becomes a party to this Agreement,
or (iii) that are United States withholding taxes imposed as a result of an
event occurring after the date the Lender becomes a Lender other than a change
in law (including any income tax treaty) or regulation or the introduction of
any law or regulation or a change in interpretation or administration of any
law. Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower paying such Non-Excluded Taxes shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. If the Borrowers fail to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section 2.14 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a person described in
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrowers and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto and an annual certificate representing, under
penalty of perjury, that such Non-U.S. Lender is not a "bank" for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of any Borrower and is not a controlled
foreign corporation related to the Borrowers (within the meaning of Section
864(d)(4) of the Code), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrowers under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S.
PAGE 26
Lender on or before the date it becomes a party to this Agreement (or, in the
case of any Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall deliver such
forms on or before the expiration or obsolescence and promptly upon the
invalidity of any form previously delivered by such Non-U.S. Lender and after
the occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably requested by
any Borrower or the Administrative Agent for filing and completing such forms.
Each Non-U.S. Lender agrees, to the extent legally entitled to do so, upon
reasonable request by any Borrower, to provide to such Borrower (for the benefit
of the Borrowers and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments of interest under this
Agreement or the other Loan Documents, provided that in determining the
reasonableness of such a request, such Lender shall be entitled to consider the
cost of complying with such request (to the extent unreimbursed by the
Borrowers) that would be imposed on such Lender. Each Non-U.S. Lender shall
promptly notify the Borrowers at any time it determines that it is no longer in
a position to provide any previously delivered certificate to any Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 2.14(b), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.14(b) that such Non-U.S. Lender is not legally able to deliver.
(c) If the Administrative Agent or any Lender receives a refund in
respect of Non-Excluded Taxes paid by any Borrower, which in the good faith
judgment of such Lender is allocable to such payment, it shall promptly pay such
refund, together with any other amounts paid by the Borrowers in connection with
such refunded Non-Excluded Taxes, to the Borrowers, net of all out-of-pocket
expenses of such Lender incurred in obtaining such refund, provided, however,
that each Borrower agrees to promptly return such refund to the Administrative
Agent or the applicable Lender, as the case may be, if it receives notice from
the Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund.
SECTION 2.15 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (excluding loss of profit) or
expense which such Lender may sustain or incur as a consequence of (a) default
by any Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after such Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by any Borrower in
making any prepayment after such Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, any margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. A
PAGE 27
certificate as to any amounts payable pursuant to this Section 2.15, showing in
reasonable detail the calculation thereof, submitted to the Borrowers by any
Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine months thereafter.
SECTION 2.16 Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under Section 2.14(a), or if any adoption or change
of the type described in Section 2.13 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its reasonable discretion) to designate a different
lending office if the making of such a designation would reduce or obviate the
need for the Borrowers to make payments under Section 2.14(a), or would
eliminate or reduce the effect of any adoption or change described in Section
2.13.
SECTION 2.17 Replacement of Lenders. If, at any time (a) the Borrowers
become obligated to pay additional amounts described in Sections 2.13 or 2.14 as
a result of any conditions described in such Sections, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Lender becomes a
"Nonconsenting Lender" (as defined below in this Section 2.17) or (d) any Lender
becomes a Non-Funding Lender, then the Borrowers may, on ten Business Days'
prior written notice to the Administrative Agent and such Lender, replace such
Lender by causing such Lender to (and such Lender shall) assign pursuant to
Section 9.4(b) all of its rights and obligations under this Agreement to a
Lender or other entity selected by the Borrowers and reasonably acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder; provided that (i) the Borrowers shall have no right
to replace the Administrative Agent, (ii) neither the Administrative Agent nor
any Lender shall have any obligation to the Borrower to find a replacement
Lender or other such entity, (iii) in the event of replacement of a
Nonconsenting Lender or a Lender to which the Borrowers become obligated to pay
additional amounts pursuant to clause (a) of this Section, in order for the
Borrowers to be entitled to replace such a Lender, such replacement must take
place no later than 180 days after (A) the date the Nonconsenting Lender shall
have notified the Borrowers and the Administrative Agent of its failure to agree
to any requested consent, waiver or amendment or (B) the Lender shall have
demanded payment of additional amounts under one of the Sections described in
clause (a) of this Section, as the case may be and (iv) in no event shall the
Lender hereby replaced be required to pay or surrender to such replacement
Lender or other entity any of the fees received by such Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Lender to which
the Borrower becomes obligated to pay additional amounts pursuant to clause (a)
of this Section, the Borrower shall pay such additional amounts to such Lender
prior to such Lender being replaced and the payment of such additional amounts
shall be a condition to the replacement of such Lender. In the event that (x)
the Borrower or the Administrative Agent has requested the Lenders to consent to
a departure or waiver of any provisions of the Loan Documents or to agree to any
amendment thereto, (y) the consent, waiver or amendment in question requires the
consent of all Lenders and (z) the Required Lenders have agreed to such consent,
waiver or amendment, then any such Lender who does not agree to such consent,
waiver or amendment shall be deemed a "Nonconsenting Lender". The Borrower's
PAGE 28
right to replace a Non-Funding Lender pursuant to this Section 2.17 is, and
shall be, in addition to, and not in lieu of, all other rights and remedies
available to the Borrower against such Non-Funding Lender under this Agreement,
at law, in equity, or by statute.
SECTION 2.18 Nature of Obligations. (a) The Borrowers shall be jointly
and severally liable for the payment and performance of all obligations and
covenants required by this Agreement to be performed by any of them, and each
Borrower shall be bound by any notices (including, without limitation, notices
of borrowings and notices of conversion or continuation), consents or other
actions furnished or taken by any other Borrower hereunder. At the request of
the Administrative Agent or the Required Lenders, each Borrower shall confirm in
writing any action taken or proposed to be taken by such Borrower hereunder,
provided that the failure of any Borrower to furnish such confirmation shall not
affect such Borrower's obligations under the preceding sentence or any other
provision of this Agreement. Each Borrower hereby agrees that it shall be
jointly and severally liable for all Obligations and that such liability shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of this
Agreement, any other Loan Document or any other agreement or instrument relating
to this Agreement or any other Loan Document, or avoidance or subordination of
any of the Obligations;
(ii) any change in the time, manner or place of payment of, or in any
other term of, or any increase in the amount of, all or any of the Obligations,
or any other amendment or waiver of any term of, or any consent to departure
from any requirement of, the Agreement or any of the other Loan Documents;
(iii) any exchange, release or non-perfection of any Lien on any
collateral for, or any release or amendment or waiver of any term of any consent
to departure from any requirement of any other guaranty of, all or any of the
Obligations;
(iv) the absence of any attempt to collect any of the Obligations, from
any Borrower or from any Loan Party or any other guarantor or any other action
to enforce the same or the election of any remedy by the Lender;
(v) any waiver, consent, extensions, forbearance or granting of any
indulgence by the Lenders with respect to any provision of this Agreement or any
Loan Document; or
(vi) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a borrower or a guarantor.
(b) Notwithstanding anything to the contrary contained herein, in the
event of a sale of all or substantially all of the Capital Stock or assets of or
by any Borrower (directly or indirectly) to a New Fund and the application of
the proceeds thereof in accordance with this Agreement and the other Loan
Documents, such Borrower shall be released of its obligations under this
Agreement and the other Loan Documents.
PAGE 29
SECTION 2.19 Increase of Commitments. (a) The Borrower shall have the
right with the consent of the Administrative Agent and the Syndication Agent, to
request in writing, from time to time (but not more than twice), that the
aggregate amount of the Commitments then in effect be increased effective upon a
specific date (the "Increase Effective Date") set forth in such request (the
"Increase Request") upon the same terms and conditions as set forth herein,
provided that no such increase shall be permitted if, after giving effect
thereto the total aggregate Commitments would exceed $2,500,000,000. Any such
increase shall be in incremental aggregate amounts of not less than the lesser
of (i) $10,000,000 or (ii) $2,500,000,000 minus the amount of the total
aggregate Commitments then in effect (the "Requested Amount") and shall increase
permanently the amount of the total aggregate Commitments then in effect
(subject to the Borrower's right to terminate or reduce the amount of the
Commitments pursuant to Section 2.5).
(b) If on the date (the "Increase Response Date") specified in any
Increase Request any Lenders or any new lenders selected by the Borrower with
the consent of the Administrative Agent and the Syndication Agent (such consent
not to be unreasonably withheld) elect in their sole discretion, to increase
their Commitments (each an "Increasing Lender") by an aggregate amount equal to
the Requested Amount, then, subject to the provisions of this Section 2.19, on
the Increase Effective Date therefor, the Commitments of such Increasing
Lenders, and correspondingly, the total aggregate Commitments, shall be
increased accordingly.
(c) Each increase in the Commitment of an Increasing Lender (including
any new lender) shall be evidenced by a written instrument executed by such
Increasing Lender, the Borrower and the Administrative Agent, and shall take
effect on the related Increase Effective Date.
(d) Upon the request to the Administrative Agent by any Increasing
Lender, the Borrower shall deliver to each such Increasing Lender, in exchange
for the Note held by such Increasing Lender, a new Note, in the principal amount
of such Increasing Lender's Commitment after giving effect to the adjustments
made pursuant to this Section 2.19.
(e) If any Lender or group of Lenders shall have elected to increase
their Commitments as provided in this Section 2.19, then as of the related
Increase Effective Date (i) the Commitments of each Increasing Lender shall take
effect and (ii) the Commitments of the Lenders which are not Increasing Lenders
shall remain constant.
ARTICLE 3
Representations and Warranties
Each Borrower represents and warrants to the Lenders, on the Closing Date
and on the date of each borrowing by such Borrower hereunder, that:
SECTION 3.1 Organization; Powers. Such Borrower is duly formed,
validly existing and in good standing under the laws of the jurisdiction of its
organization or formation, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in
PAGE 30
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.2 Authorization; Enforceability. The Transactions are
within the Borrower's powers and have been duly authorized by all necessary
corporate, partnership, limited liability company or other actions. The Loan
Documents have been duly executed and delivered on behalf of each Loan Party
thereto and constitute a legal, valid and binding obligation of each such Loan
Party, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.3 Governmental Approvals; No Conflicts. The
Transactions (a) do not require any material consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the organizational or
formation documents of any Loan Party or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding upon any Loan Party or
its assets, or give rise to a right thereunder to require any payment to be made
by any Loan Party, and (d) will not result in the creation or imposition of any
Lien on any asset of any Loan Party, other than pursuant to the Loan Documents.
SECTION 3.4 Compliance with Laws and Agreements. Each Loan Party
is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 3.5 Investment and Holding Company Status. No Borrower is
(a) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.6 Material Adverse Effect. There has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.7 No Material Litigation. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of such Borrower, threatened by or against any Loan Party
or any Investment Party or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby, or (b) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.8 Disclosure. No information, financial statement,
report, certificate or other document prepared or furnished by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with this
Agreement or any other Loan Document (but
PAGE 31
excluding all projections and pro forma financial statements which shall have
been prepared in good faith and based upon reasonable assumptions) contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading.
SECTION 3.9 Investments. On and after the date of the making of
each Investment, each applicable Investment Party and New Portfolio Company in
which such Investment is made will be duly organized or formed, validly existing
and in good standing under the laws of the jurisdiction of its organization or
formation, will have all requisite power and authority to carry out its business
as then conducted and proposed to be conducted and, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, will be qualified to do business in, and in
good standing in every jurisdiction where such qualification is required. The
making of each Investment (i) will be within the power of the applicable
Borrower, and each Investment Party and will be duly authorized by all necessary
appropriate action on the part of each such Borrower and Investment Party, (ii)
will not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as will have been
obtained or made and be in full force and effect, (iii) will not violate any
applicable law or regulation, in any material respect, or any organizational
document of any applicable Borrower, Investment Party or New Portfolio Company
or any order of any Governmental Authority, (iv) will not violate or result in a
default under any material indenture, agreement or other instrument binding upon
the applicable Borrower, Investment Party or New Portfolio Company or its
assets, or give rise to a right thereunder to require any payment to be made by
the applicable Borrower, Investment Party or New Portfolio Company (other than
payments made simultaneously with such Investment), (v) will not result in the
creation or imposition of any Lien on any asset of the applicable Borrower,
Investment Party or New Portfolio Company except Liens under the Pledge
Agreement and Liens on the acquired assets to secure Indebtedness owed to third
party lenders incurred in connection with the making of an Investment in the
assets acquired thereby, and (vi) will be consistent with investments made by,
or permitted under, any Specified Fund (other than with respect to geographic
region).
ARTICLE 4
Conditions Precedent
SECTION 4.1 Conditions to Initial Funding. The obligations of the
Lenders to make the Term Loans and of the Issuing Bank to issue any Letter of
Credit hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.2):
(a) Loan Documents. The Administrative Agent (or its counsel) shall
have received (i) this Agreement, duly executed and delivered by each Initial
Borrower, (ii) an Affiliate Guarantee, duly executed and delivered by each
Affiliate Guarantor in existence on the Closing Date, (iii) an Investment
Guarantee duly executed and delivered by each Investment Guarantor in existence
on the Closing Date; (iv) the Pledge Agreement, duly executed and delivered by
each Initial Borrower and EquityCo, together with all documents required to be
delivered thereunder, all certificates representing the Pledged Interests listed
on Schedule I thereto and stock powers
PAGE 32
endorsed in blank, (v) the Letter Agreement, duly executed and delivered by each
party thereto, and (vi) the Principal Agreement, duly executed and delivered by
each party thereto.
(b) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit E, with appropriate
insertions and attachments.
(c) Legal Opinion. The Administrative Agent shall have received the
executed legal opinion of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan
Parties, substantially in the form of Exhibit B, (ii) ▇▇▇▇▇ Dutilh, counsel to
HM/Europe Coinvestors, C.V. and EquityCo, substantially in the form of Exhibit
C, and (iii) Walkers, counsel to TOH/Europe Cayman Ltd, substantially in the
form of Exhibit D.
(d) Approvals. All governmental and third party approvals necessary
or, in the discretion of the Administrative Agent, advisable in connection with
the Transactions shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action being taken
or threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on any Initial Borrower's ability to perform
its obligations under the Loan Documents.
(e) Fees. The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the date hereof.
(f) Filings. Any documents (including, without limitation, financing
statements) required to be filed, registered or recorded in order to create, for
the benefit of the Administrative Agent and the Lenders, a perfected, first
priority security interest shall have been properly prepared for filing,
registration or recording in each office in each jurisdiction in which such
filings, registrations and recordations are required to perfect such first
priority security interests created by the Pledge Agreement, and the
Administrative Agent shall be satisfied that such recordings and filings will be
completed promptly after the date hereof.
SECTION 4.2 Additional Conditions for Each Credit Event. The
obligation of each Lender to make Term Loans on the occasion of any borrowing
(other than a Loan made pursuant to Section 2.3(e) and Term Loans made for the
payment of interest and Fees), and of the Issuing Bank to issue any Letter of
Credit, is subject to the satisfaction of the following conditions:
(a) Joinder Agreement. In the event the Term Loans are to be drawn by
a Future Borrower not a party to this Agreement, the Administrative Agent shall
have received from such Future Borrower a Joinder Agreement signed by the
appropriate Future Borrower together with such other documentation required
thereunder.
(b) Guarantee. The Administrative Agent shall have received, if
applicable, an Investment Guarantee or an Affiliate Guarantee signed by the
appropriate Investment Guarantor or Affiliate Guarantor.
(c) Pledge Agreement. The Administrative Agent shall have received (i)
from the Borrower a Pledge Supplement (as defined in the Pledge Agreement) to
the Pledge Agreement
PAGE 33
signed by the Borrower and the Indirect Co-Investor, if applicable, or (ii) in
the case of any Future Borrower not a party to a Pledge Agreement, a Pledge
Agreement signed by such Future Borrower and the Indirect Co-Investor, if
applicable.
(d) Representations and Warranties. The representations and warranties
of the Loan Parties set forth in this Agreement and the Loan Documents shall be
true and correct in all material respects on and as of the date of such
borrowing or the date of issuance of such Letter of Credit, as applicable,
except to the extent they relate to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date.
(e) No Default. At the time of and immediately after giving effect to
such borrowing or the issuance of such Letter of Credit, as applicable, no
Default or Event of Default shall have occurred and be continuing.
(f) Certificate. With respect to each Term Loan the proceeds of which
will be used to fund an Investment, the Administrative Agent (which shall
forward the same to the Lenders and Issuing Bank) shall have received a
certificate of the applicable Borrower setting forth in reasonable detail, and
to such Borrower's knowledge, information with respect to the following items:
(i) a description of such Investment; (ii) the total cost of such Investment;
(iii) the amount, maturity, source and collateral security for all debt, equity
and other financing for such Investment and the acquisition by or of the
applicable New Portfolio Company of such Investment; and (iv) the name, form of
organization and jurisdiction of organization of such Borrower and, if
applicable, the appropriate Indirect Co-Investor, the applicable New Portfolio
Company and any Investment Party and the respective direct ownership interests
of such Borrower, the Indirect Co-Investor, each Investment Party and the New
Portfolio Company and their respective subsidiaries. In addition, the
Administrative Agent (which shall forward the same to the Lenders) shall receive
from the Borrower: (i) a copy of all purchase documents relating to the
acquisition of the applicable New Portfolio Company and (ii) such other
information reasonably requested by the Lenders regarding the applicable New
Portfolio Company, the Indirect Co-Investor, and the Investment Parties (in each
case, if any).
(g) Co-Investment. The amount of the borrowing shall not equal more
than 97.02% of the Investment in a Directly Owned Investment Party or New
Portfolio Company, as the case may be, and in each case the Co-Investors shall
have made the Co-Investment in an amount not less than 2.98% of such Investment.
(h) Legal Opinion. The Administrative Agent shall have received an
executed legal opinion from the Loan Parties' outside counsel and local counsel,
as to all matters reasonably requested by Administrative Agent including,
without limitation, (a) Regulation U and (b) perfection of the Administrative
Agent's security interest in the Investment pledged by the Pledgors of Pledged
Interests.
(i) Investment. Each Investment shall be reasonably expected by the
Loan Parties to be suitable for purchase by New Fund (the determination of which
will include a determination that the Investment is consistent with past
investments by any Specified Fund). Each borrowing and the issuance of any
Letter of Credit shall be deemed to constitute a representation and
PAGE 34
warranty by each Borrower on the date thereof as to the matters specified in
paragraphs (c) and (d) of this Section.
ARTICLE 5
Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated and any Letter of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower hereby covenants and
agrees with the Lenders that (with references to "the Borrower" being deemed to
be references to "such Borrower"):
SECTION 5.1 Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any Loan
Party or any Affiliate thereof that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect; and
(c) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.2 Existence; Conduct of Business. The Borrower will do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect (a) its legal existence and (b) the rights, licenses, permits,
privileges and franchises material to the conduct of its business other than
those in the case of clause (b) above, the failure of which to maintain, could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.3 Payment of Obligations. The Borrower will pay its
material obligations, including material tax liabilities, before the same shall
become delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the Borrower
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.4 Compliance with Laws. The Borrower will comply with
all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
PAGE 35
SECTION 5.5 Use of Proceeds. The proceeds of the Term Loans will
be used only to finance the Investments in New Portfolio Companies and the
payment of interest, fees and expenses due hereunder and Letters of Credit shall
be used only in connection with the consummation of the proposed Investments;
provided that (i) Term Loans may not be borrowed and Letters of Credit may not
be issued for the purpose of making any Investment if the aggregate Investment
Commitment Amount (after giving effect to such Term Loan or Letter of Credit, as
the case may be), would exceed the aggregate Commitments, (ii) no part of the
proceeds of any Term Loan and no Letter of Credit will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X and (iii) the amount of
Term Loans borrowed and the aggregate face amount of Letters of Credit issued
shall not exceed (x) $500,000,000 in the aggregate, in the case of any
Investment in real estate, and (y) $175,000,000 individually or $375,000,000 in
the aggregate, in the case of Investments in New Portfolio Companies domiciled
in Mexico, Central America or South America.
SECTION 5.6 Additional Collateral. (a) With respect to any
investment by a Borrower and an Indirect Co-Investor, if any, in a Directly
Owned Investment Party or a New Portfolio Company, as the case may be, the
applicable Borrower and Indirect Co-Investor, if any, shall execute and deliver
to the Administrative Agent, for the benefit of the Lenders, such Pledge
Agreements or Pledge Supplements to the Pledge Agreement or such other documents
as the Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock issued by the Directly Owned Investment Party or, to the extent there is
no Directly Owned Investment Party, the Capital Stock of the New Portfolio
Company, or in the case of an Investment in Indebtedness, a Lien on such
Indebtedness.
(b) In all cases, the appropriate Pledgor shall, as soon as practicable
but in any event not more than five Business Days after any borrowing, (i)
deliver to the Administrative Agent the stock certificates, notes or other
evidence of ownership representing the Investment in such New Portfolio Company
or such Directly Owned Investment Party, as applicable, together with undated
stock or transfer powers, executed, endorsed and delivered in blank, for any
stock certificates or notes representing such Investment, by a Responsible
Officer of such Pledgor, and (ii) take all actions necessary or advisable to
cause such Lien to be duly perfected in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be required by the Pledge Agreement or
by law or as may be requested by the Administrative Agent and (iii) if
reasonably requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions, including legal opinions of local counsel, relating to the
matters described in this Section 5.6, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
SECTION 5.7 Financial Reporting. Each Borrower will provide to
the Administrative Agent, for distribution to the Lenders, (a) each of the
financial statements and related certificates and other business and financial
information regularly distributed to the lenders pursuant to any credit
agreement for a New Portfolio Company as well as such additional information as
the Lenders may reasonably request hereunder, and (b) within 45 days after the
expiration of the applicable quarter, quarterly unconsolidated financial
statements for each
PAGE 36
Borrower for the periods ending as of such quarter, commencing with the quarter
ended December 31, 1999.
SECTION 5.8 Additional Guarantors. Within ten Business Days after
the formation of any Affiliate Guarantor or Investment Guarantor on the date any
entity becomes an Affiliate Guarantor or Investment Guarantor within the
definition of Affiliate Guarantor set forth in Section 1.1 hereof, the Borrower
shall cause each such Affiliate Guarantor or Investment Guarantor, as
applicable, to execute and deliver to the Administrative Agent, as appropriate,
an Affiliate Guarantee substantially in the form of Exhibit F attached hereto or
an Investment Guarantee substantially in the form of Exhibit G attached hereto.
SECTION 5.9 Management and Advisory Agreements. Upon the request
of the Administrative Agent, the Borrower shall provide to the Administrative
Agent a copy of each management and advisory agreement in respect of the New
Fund or an Investment in a New Portfolio Company, if any.
SECTION 5.10 Covenant to Pay. Each Borrower covenants in favor of the
Administrative Agent, with the agreement of the Lenders and the Issuing Bank, to
pay the Obligations to the Administrative Agent as joint and several creditor
thereof when and to the extent due from such Borrower under the terms of and
subject always to any express limits set out in this Agreement, to such bank
account as the Administrative Agent may direct, except that each Borrower may
also, subject to the terms of this Agreement until otherwise notified in writing
by the Administrative Agent, pay the Obligations directly to the Administrative
Agent for itself or to the relevant Lender or Issuing Bank, as the case may be,
and each such payment will constitute a pro rata discharge of the covenant to
pay in favor of the Administrative Agent set forth herein.
SECTION 5.11 Margin Securities. All Investments in "margin stock", as
such term is defined in Regulation U of the Board, shall be made through one or
more Investment Parties.
ARTICLE 6
Negative Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated and any Letter of Credit shall have expired or terminated and all LC
disbursements shall have been reimbursed, each Borrower hereby covenants and
agrees with the Lenders that (with references to "the Borrower" being deemed to
be references to "such Borrower"):
SECTION 6.1 Indebtedness. The Borrower will not, and will not
permit any Indirect Co-Investor (if applicable) or Investment Party to, create,
incur, assume or permit to exist any Indebtedness, except (a) Indebtedness
created hereunder and under the other Loan Documents, (b) nonconsensual
obligations imposed by operation of law, (c) indemnification obligations arising
under the Borrower's constituent documents, (d) administrative expenses and
taxes, and (e) Indebtedness arising out of any Guarantee or similar agreement
entered into by any
PAGE 37
Borrower, Indirect Co-Investor or Investment Party in support of the obligation
of a New Portfolio Company or its Subsidiaries; provided, however, (i) the
remaining Commitment after giving effect to such Guarantee, shall be sufficient
to make payments of interest and fees previously accrued or which will be
payable hereunder through the Maturity Date (using for future periods not
covered by existing Interest Periods, the Eurodollar Rate available on the date
of any determination for a three (3) month Interest Period and using the then
current Applicable Margin, (ii) the Commitments shall be deemed to be utilized
in an amount equal to the full amount of such Indebtedness during the time such
Indebtedness remains outstanding, (iii) such Guarantees shall not exceed $250
million in the aggregate at any one time outstanding, and (iv) promptly after
entering into a permitted Guarantee, give the Administrative Agent written
notice thereof.
SECTION 6.2 Liens. The Borrower will not, and will not permit any
Indirect Co-Investor (if applicable) or any Investment Party to, create, incur,
assume or permit to exist any Lien (other than Liens created pursuant to the
Pledge Agreement) on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof other than (a) Liens for taxes not yet due or
which are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of the
Borrower in accordance with GAAP, (b) Liens in favor of banking institutions
arising as a matter of law and encumbering the deposits (including the right of
setoff) held by such banking institutions in the ordinary course of business and
which are within the general parameters customary in the banking industry, and
(c) attachment and judgment Liens not constituting an Event of Default;
provided, however, that this Section 6.2 shall not apply to any "margin stock"
as such term is defined in Regulation U of the Board, if such margin stock
represents more than 25% of the value of the assets of the Borrower as such
value is required to be computed by Regulation U of the Board.
SECTION 6.3 Fundamental Changes. (a) The Borrower will not, and
will not permit any Indirect Co-Investor (if applicable) or any Investment Party
to, merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or liquidate or dissolve; provided that
any Borrower, Indirect Co-Investor or Investment Party may (i) merge into or
consolidate with any other Borrower, Indirect Co-Investor or Investment Party,
or (ii) liquidate or dissolve if, in connection thereunder, all of its assets
are transferred to another Borrower, Indirect Co-Investor or Investment Party,
or if such transfer is done in accordance with Section 6.5.
(b) The Borrower will not engage in any business other than a business
consistent with its current operations and activities on the date of execution
of this Agreement.
SECTION 6.4 Restricted Payments. The Borrower will not, and will
not permit any Investment Party to, make any Restricted Payments (except that
the Investment Parties may make Restricted Payments to the Borrower (and the
Indirect Co-Investor, if any) to repay Term Loans and other amounts due
hereunder and the Borrower may make Restricted Payments to a Co-Investor in
respect of any Co-Investment amount in connection with a sale of assets
permitted under Sections 2.6(b) or 6.5 or with the proceeds funded by a
Co-Investor in connection with transfer among the Co-Investors).
PAGE 38
SECTION 6.5 Sale of Assets. The Borrower shall not and will not
permit any Indirect Co-Investor or Investment Party to sell, transfer or
otherwise dispose of any of its respective property other than for cash
(yielding net proceeds) representing at least such Person's cost of such
property (including, without limitation, any interest and fees relating
thereto), the net proceeds (less the ratable interest of any Co-Investors and
any necessary escrows) of which (to the extent attributable to the Investment)
are distributed to the Borrowers to repay the Term Loans; provided, however, the
Borrower or any Investment Party may sell, transfer or otherwise dispose of
"margin stock" as such term is defined in Regulation U of the Board so long as
the net proceeds from such sale shall be held by the Borrower or such Investment
Party, as the case may be, in cash or marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government maturing on or
within one year from the date of such sale until the Maturity Date; provided
further, that in the event that any such property which shall not constitute
"margin stock" is sold for more than the cost thereof (including, without
limitation, any interest and fees relating thereto), the amount of net cash
proceed in excess of such cost shall be held in a cash collateral account in the
name and under the sole dominion and control of the Administrative Agent as
security for the Obligations.
ARTICLE 7
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Term Loan or LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Term Loan or LC
Disbursement or to pay any Fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under or in connection with
this Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with any Loan Document or any amendment or
modification thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.2(a) or Article 6 or any Guarantor
shall fail to observe or perform any covenant, condition or agreement contained
in Section 10(a)(i) or (d) of its Affiliate Guarantee or Investment Guarantee,
as applicable;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b), (c), (d) or (g) of this Article), and such failure
shall continue unremedied for a period of 30 days;
PAGE 39
(f) any Loan Party, Investment Party, or any New Portfolio Company
shall (i) default in making any payment of any principal of or interest on any
Indebtedness (including any Guarantee, but excluding the Term Loans, LC
Disbursements and Guarantees pursuant to the Affiliate Guarantees and Investment
Guarantees) beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee) to become payable;
provided that a default, event or condition described in clause (i) or (ii) of
this paragraph (f) shall not at any time constitute an Event of Default under
this Agreement unless, at such time, one or more defaults, events or conditions
(without duplication as to the same item of Indebtedness) of the type described
in clauses (i) and (ii) of this paragraph (f) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $500,000 in the case of any Borrower or
$10,000,000 in the case of any New Portfolio Company, Investment Party or any
other Loan Party; or
(g) (i) any Loan Party, Investment Party, or any New Portfolio Company
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any Loan
Party, Investment Party or any New Portfolio Company shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Loan Party, Investment Party or any New Portfolio Company, any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against any Loan Party, Investment
Party or any New Portfolio Company any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Loan Party shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Loan Party, Investment Party or any New
Portfolio Company shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(h) one or more judgments or decrees shall be entered against any Loan
Party, Investment Party or New Portfolio Company involving in the aggregate a
liability (not paid or fully covered by insurance as to which the relevant
insurance company has not denied coverage) of $500,000 or more in the case of
any Borrower and $10,000,000 or more in the case of any
PAGE 40
New Portfolio Company, Investment Party or any other Loan Party, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall, at any time, cease to be in full force and
effect (unless released by the Administrative Agent at the direction of the
Required Lenders or as otherwise permitted under this Agreement or the other
Loan Documents) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Loan Party; or
(j) any Person constituting a "Guarantor" shall not be a party to an
Affiliate Guarantee or an Investment Guarantee, as applicable, within ten
Business Days after such Person has been organized or formed;
(k) a Change in Control shall occur; or
(l) any Investment Party shall fail to distribute any payment made to
it on account of any Investment (net of reasonable expenses and reasonably
required escrows).
then, and in every such event (other than an event with respect to any Borrower
described in clause (g) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrowers, declare the Term Loans
and LC Disbursements then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable) and the Commitments to be
terminated, and thereupon the principal of the Term Loans and LC Disbursements
so declared to be due and payable, together with accrued interest thereon and
all other obligations of the Borrowers accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower; and in case of any event
with respect to any Borrower described in clause (g) of this Article, the
principal of the Term Loans and LC Disbursements then outstanding, together with
accrued interest thereon and all other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable and the Commitments shall
be automatically terminated, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower; and at any
time thereafter during the continuance of such event, the Administrative Agent
may exercise all of its rights and remedies under the Pledge Agreement in
accordance with all applicable laws.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrowers shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Each
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank, a security interest in such cash collateral to secure all
obligations of such Borrower in respect of such Letters of Credit under this
Agreement and the other Loan Documents. The Borrowers shall execute and deliver
to the Administrative Agent, for the account of the Issuing Bank, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of such security interest in such cash collateral
account. Amounts held in
PAGE 41
such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrowers
hereunder and under any Notes. After all such Letters of Credit shall have
expired or been fully drawn upon, all obligations under the Letters of Credit
shall have been satisfied and all other obligations of the Borrowers hereunder
and under any Notes shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to Borrowers.
ARTICLE 8
The Administrative Agent
SECTION 8.1 Generally.
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent 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, together with such actions and powers as are reasonably
incidental thereto.
The bank 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 such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any Loan Party or any Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the bank serving as 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 with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and 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, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 4 or
PAGE 42
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for any 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.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers 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 its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs 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.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrowers, to
appoint a successor, which successor shall be approved by the Borrowers (which
approval shall not be unreasonably withheld or delayed). If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank
reasonably acceptable to the Borrowers. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. Any fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrowers and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.3 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender 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
PAGE 43
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
SECTION 8.2 Joint and Several Creditorship. The Administrative
Agent shall be the joint and several creditor together with each Lender and the
Issuing Bank of each and every Obligation of any Borrower towards such Bank
under this Agreement or any Loan Document so that accordingly the Administrative
Agent in its individual capacity will have its own independent right to demand
performance by the relevant Borrower of those Obligations, and such Obligations
will be discharged by and to the extent of any discharge thereof either to the
Administrative Agent in its capacity referred to above or to the Administrative
Agent for itself or to the relevant Bank, as the case may be. In case of a
resignation of the Administrative Agent pursuant to Section 8.1, the rights of
the Administrative Agent hereunder shall be assigned by the retiring
Administrative Agent to the successor Administrative Agent by an assignment not
constituting a novation of debt.
ARTICLE 9
Miscellaneous
SECTION 9.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows:
(a) if to any Borrower, to it c/▇ ▇▇▇▇▇, Muse ▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., (Telecopy No. 214-740-7313), with a copy to each other
Borrower);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. 212-552-5658), with a copy to The Chase
Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇ (Telecopy No. 212-972-0009); and
(c) if to any Lender, to it at its address (or telecopy number) set
forth in an administrative questionnaire delivered to the Administrative Agent
and as otherwise notified in writing to the Borrowers.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.2 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any
PAGE 44
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Term Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither any Loan Document nor any provision thereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Required Lenders and each affected Loan Party; provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the amount of, or extend any
scheduled date for payment of, any principal or interest in respect of the Term
Loans, any LC Disbursements or any Letter of Credit fees, without the written
consent of each Lender directly affected thereby, (iii) change any of the
provisions of this Section or the definition of "Required Lenders" without the
written consent of each Lender, (iv) release any Loan Party from its obligations
under the Loan Documents without the written consent of each Lender (except upon
payment in full in cash of the Obligations or, with respect to a given Borrower
or Indirect Co-Investor, upon a sale of the Directly Owned Investment Party or
New Portfolio Company in a transaction permitted hereunder and repayment in full
of such Borrower's Term Loans) or (v) release all or substantially all of the
collateral (except as expressly provided in the Loan Documents) under the
Affiliate Guarantees or Investment Guarantees and the Pledge Agreement (provided
that a partial release of collateral thereunder shall require the consent of the
Required Lenders); provided, further, that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrowers
shall pay or cause to be paid (i) all reasonable out-of-pocket expenses incurred
by the Administrative Agent, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof and (ii) all reasonable out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including in connection with any workout, restructuring or
negotiations in respect thereof, the reasonable fees and disbursements of
counsel to the Administrative Agent and after the occurrence and during the
continuance of an Event of Default a single counsel to the Lenders collectively.
(b) Each Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (other
than non-Non-Excluded Taxes), including the
PAGE 45
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of the Loan Documents or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations under the Loan Documents or the
consummation of the Transactions or any other transactions contemplated by the
Loan Documents, (ii) any Term Loan or the use of the proceeds therefrom, or
(iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory 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 or related expenses 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, in the case of any indemnified liabilities arising out of
this Agreement or the other Loan Documents, from the material breach by any such
Indemnitee of this Agreement or the other Loan Documents, as the case may be;
provided that, for purpose of clarity, no provision of this paragraph (b) shall
be deemed to negate Section 9.3(a)(ii) to the extent that it provides that after
the occurrence and during the continuance of an Event of Default, the Lenders
shall be reimbursed for a single counsel.
(c) To the extent that the Borrowers fail to pay any amount required to
be paid by it to the Administrative Agent, each Lender severally agrees to pay
to the Administrative Agent such Lender's Loan 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 in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and each Borrower 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 or any agreement or instrument
contemplated hereby, the Transactions, any Term Loan or the use of the proceeds
thereof.
(e) The agreements in this Section 9.3 shall survive repayment of the
Loans and all other amounts payable hereunder.
SECTION 9.4 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by such Borrower without such consent 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 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
PAGE 46
(b) Any Lender may assign to one or more assignees a portion of its
rights and obligations under this Agreement (an "Assignee"); provided that (i)
each of the Lenders party to this Agreement on the Closing Date may not assign
more than 49% of its Commitments, Term Loans and LC Exposure without the consent
of the Borrowers, (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrowers (such consent not to be
unreasonably withheld) and the Administrative Agent (the consent of the
Administrative Agent may be withheld in its sole discretion) must give their
prior written consent to such assignment, (iii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, Term Loans and LC
Exposure, the amount of the Term Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrowers and the Administrative
Agent otherwise consent, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $4,000 (provided, however, if the Borrowers
request the replacement of any Lender pursuant to Section 2.17 hereof, the
Borrowers shall pay such processing and recordation fee, which shall be funded
with the proceeds of the Term Loans), and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an administrative
questionnaire; provided further that any consent of the Borrowers otherwise
required under this paragraph shall not be required if an Event of Default under
clause (g) of Article 7 has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, 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 Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 2.13, 2.14, 2.15 and 9.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph 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 paragraph (e) of this Section. Notwithstanding
anything to the contrary provided herein, in the event of any proposed
assignment by a Lender pursuant to this Section 9.4(b), such assignment shall be
offered to the Lenders pro rata based on their respective Loan Percentages.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in New York, New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Term Loans whether or not evidenced by a Note owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. Any
assignment of any Loan whether or not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all
or part of
PAGE 47
a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee and the old Notes shall be returned by the
Administrative Agent to appropriate Borrower marked "cancelled".
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
administrative questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers but with the
consent of the Administrative Agent (the consent of the Administrative Agent may
be withheld in its sole discretion) sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Term Loans owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided that, in the case of Section 2.14, such Participant shall have complied
with the requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred. Notwithstanding anything to the
contrary provided herein, in the event of any proposed participation by a Lender
pursuant to this Section 9.4(e), such participation shall be offered to the
Lenders pro rata based on their respective Loan Percentages.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any such pledge or assignment to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment to a Federal
Reserve Bank; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
PAGE 48
SECTION 9.5 Survival. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Term
Loans, regardless of any investigation made by any such other party or on its
behalf.
SECTION 9.6 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts and by facsimile (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate agreements with respect to Fees
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.
SECTION 9.7 Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.8 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Borrower against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of 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 for recognition or enforcement of any judgment, and each of the
parties hereto hereby 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 or, to the extent permitted by 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
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring
PAGE 49
any action or proceeding relating to this Agreement against any Borrower or any
of its properties in the courts of any jurisdiction.
(c) The Borrowers hereby irrevocably and unconditionally waive, to the
fullest extent they may legally and effectively do so, any objection which they
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement 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 law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each Lender agrees to keep information
obtained by it pursuant hereto and the other Loan Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents or affiliates
who are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender on a non-confidential basis from any source or such information that is
in the public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to the Borrowers unless such notice is legally
prohibited) or requested or required by bank, securities or investment company
regulations or auditors or any administrative body or commission to whose
jurisdiction such Lender may be subject, (d) to actual or prospective Assignees
or Participants who agree to be bound by the provisions of this Section 9.12,
(e) to the extent required in connection with any litigation between any Loan
Party and any Lender with respect to the Term
PAGE 50
Loans or this Agreement and the other Loan Documents or (f) with the Borrowers'
prior written consent. The agreements in this Section 9.12 shall survive
repayment of the Term Loans and all other amounts payable hereunder. Each of
the parties hereto (each, a "Document Party") agrees to keep confidential this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby; provided that nothing herein shall prevent any Document Party from
disclosing such information (a) to any other Document Party or any Affiliate of
any Document Party, or any officer, director, employee, agent, or advisor of any
Document Party or Affiliate of any Document Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) to any New Portfolio Company (or prospective
New Portfolio Company) or any officer, director, employee, agent, or advisor of
any Document Party or Affiliate of such New Portfolio Company in connection with
a proposed Investment by any Borrower in such New Portfolio Company, (g) in
connection with any litigation to which such Document Party or any of its
Affiliates may be a party, or (h) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Loan Document.
SECTION 9.13 Syndication. The Borrowers agree that the Administrative
Agent has the right to syndicate the Commitments and the Term Loans at any time
or from time to time to a group of financial institutions (the "Additional
Lenders") identified by the Administrative Agent in consultation with the
Borrowers, if the Administrative Agent and its affiliates determine to syndicate
the Commitments and the Term Loans. The Borrowers agree to actively assist the
Administrative Agent and its affiliates in completing a syndication satisfactory
to the Administrative Agent and the Borrowers, including (a) using commercially
reasonable efforts to ensure that the syndication efforts benefit materially
from the Borrower's lending and equity relationships, (b) direct contact between
the Borrowers and any Additional Lenders, (c) furnishing, or, as the
Administrative Agent may request, assisting in the preparation of, information,
projections and marketing materials to be used in connection with the
syndication and (d) the hosting, with the Administrative Agent and its
affiliates, of one or more meetings of any Additional Lenders. The
Administrative Agent and its affiliates would manage all aspects of the
syndication, in consultation with the Borrowers, including decisions as to the
selection of institutions to be approached and when they will be approached,
when their commitments will be accepted, which institutions will participate,
the allocations of the commitments among any Additional Lenders and the amount
and distribution of fees among any Additional Lenders. The Borrowers
acknowledge that the information the Borrowers may be asked to furnish to the
Administrative Agent and its affiliates and to any Additional Lenders may
include sensitive competitive information, and the Administrative Agent and its
affiliates agree to take appropriate and customary confidentiality precautions
with respect thereto. Notwithstanding anything to the contrary contained
herein, in the event of a syndication (i) no Lender shall be permitted to
syndicate more than 49% of the Commitments, Term Loans and LC Disbursements held
by it on the Closing Date without the prior written consent of the Borrowers and
(ii) any syndication shall be offered to the Lenders pro rata (to the extent
desired by any Lenders) based on their respective Loan Percentages.
SECTION 9.14 Certainty of Funds. At the request of any Borrower, the
Administrative Agent on behalf of the Lenders shall provide such documentation
as may be reasonably agreed between such Borrower and the Administrative Agent
to evidence the
PAGE 51
availability of the unused Commitment to make Investments by any Borrower or a
proposed Future Borrower.
[The remainder of this page is intentionally left blank.]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Initial Borrowers:
HM/Europe Coinvestors, C.V.
By: TOH/Europe Cayman Ltd.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
HMTF Bridge Partners, L.P.
By: HMTF Bridge Partners, LLC
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
S-2
THE CHASE MANHATTAN BANK
as Administrative Agent,
Issuing Bank, and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
S-3
BANK OF AMERICA, N.A.
as Syndication Agent and
a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-4
BANKERS TRUST COMPANY
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
S-5
CREDIT SUISSE FIRST BOSTON
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ HHetu and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/
Vice President
S-6
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-7
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-8
MFBL FUNDING, INC.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Principal
S-9
SCHEDULE 2.1
Lenders' Commitments
Lender. . . . . . . . . . . . . . . Commitment
The Chase Manhattan Bank. . . . . . $ 400,000,000
Bank of America, N.A. . . . . . . . $ 400,000,000
Bankers Trust Company . . . . . . . $ 200,000,000
Credit Suisse First Boston. . . . . $ 200,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. $ 200,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation . $ 180,000,000
MFBL Funding, Inc.. . . . . . . . . $ 200,000,000
Total Commitments. . . . . $1,780,000,000