EXHIBIT 10.1
EXECUTION COPY
================================================================================
PUBLISHED CUSIP NUMBER: ____
$320,000,000
FIRST LIEN SENIOR SECURED
CREDIT AGREEMENT
Dated as of March 3, 2006
Among
OPEN SOLUTIONS INC.,
as Borrower,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS, INITIAL SWING LINE BANK AND INITIAL ISSUING BANK
NAMED HEREIN,
as Initial Lenders, Initial Swing Line Bank and Initial Issuing Bank,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent
----------
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Bookrunner Manager and as Sole Lead Arranger
----------
================================================================================
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................... 2
SECTION 1.01. Certain Defined Terms...................................... 2
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions................................................. 27
SECTION 1.03. Accounting Terms........................................... 27
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT... 28
SECTION 2.01. The Advances and the Letters of Credit..................... 28
SECTION 2.02. Making the Advances........................................ 29
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit..................................................... 31
SECTION 2.04. Repayment of Advances...................................... 33
SECTION 2.05. Termination or Reduction of the Commitments................ 35
SECTION 2.06. Prepayments................................................ 35
SECTION 2.07. Interest................................................... 37
SECTION 2.08. Fees....................................................... 38
SECTION 2.09. Conversion of Advances..................................... 38
SECTION 2.10. Increased Costs, Etc....................................... 39
SECTION 2.11. Payments and Computations.................................. 41
SECTION 2.12. Taxes...................................................... 43
SECTION 2.13. Sharing of Payments, Etc................................... 45
SECTION 2.14. Use of Proceeds............................................ 46
SECTION 2.15. Defaulting Lenders......................................... 46
SECTION 2.16. Evidence of Debt........................................... 48
SECTION 2.17. Incremental Facilities..................................... 49
ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT..... 51
SECTION 3.01. Conditions Precedent to Initial Extension of Credit........ 51
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal.................................................... 56
SECTION 3.03. Determinations Under Section 3.01.......................... 57
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................ 57
SECTION 4.01. Representations and Warranties of the Loan Parties......... 57
ARTICLE V COVENANTS OF THE LOAN PARTIES.................................. 63
SECTION 5.01. Affirmative Covenants...................................... 63
SECTION 5.02. Negative Covenants......................................... 68
SECTION 5.03. Reporting Requirements..................................... 77
SECTION 5.04. Financial Covenants........................................ 81
ARTICLE VI EVENTS OF DEFAULT............................................. 82
SECTION 6.01. Events of Default.......................................... 82
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default... 85
ARTICLE VII THE AGENTS................................................... 85
SECTION 7.01. Authorization and Action................................... 85
SECTION 7.02. Agents' Reliance, Etc...................................... 86
SECTION 7.03. Wachovia and Affiliates.................................... 87
SECTION 7.04. Lender Party Credit Decision............................... 87
SECTION 7.05. Indemnification............................................ 87
SECTION 7.06. Successor Agents........................................... 88
SECTION 7.07. Administrative Agent May File Proofs of Claim.............. 89
SECTION 7.08. Collateral and Guaranty Matters............................ 89
SECTION 7.09. Other Agents; Arrangers and Managers....................... 90
SECTION 7.10. Intercreditor Agreement.................................... 90
ARTICLE VIII GUARANTY.................................................... 90
SECTION 8.01. Guaranty; Limitation of Liability.......................... 90
SECTION 8.02. Guaranty Absolute.......................................... 91
SECTION 8.03. Waivers and Acknowledgments................................ 92
SECTION 8.04. Payments Free and Clear of Taxes, Etc...................... 93
SECTION 8.05. Continuing Guaranty; Assignments........................... 93
SECTION 8.06. Subrogation................................................ 93
SECTION 8.07. Guaranty Supplements....................................... 94
SECTION 8.08. Subordination.............................................. 94
SECTION 8.09. Limitations on Enforcement................................. 95
ARTICLE IX MISCELLANEOUS................................................. 95
SECTION 9.01. Amendments, Etc............................................ 95
SECTION 9.02. Notices, Etc............................................... 97
SECTION 9.03. No Waiver; Remedies........................................ 98
SECTION 9.04. Costs and Expenses......................................... 99
SECTION 9.05. Right of Set-off........................................... 100
SECTION 9.06. Binding Effect............................................. 101
SECTION 9.07. Assignments and Participations............................. 101
SECTION 9.08. Execution in Counterparts.................................. 105
SECTION 9.09. No Liability of the Issuing Bank........................... 105
SECTION 9.10. Confidentiality............................................ 105
SECTION 9.11. Release of Collateral...................................... 106
SECTION 9.12. Patriot Act Notice......................................... 106
SECTION 9.13. Jurisdiction, Etc.......................................... 106
SECTION 9.14. GOVERNING LAW.............................................. 106
SECTION 9.15. WAIVER OF JURY TRIAL....................................... 107
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Guarantors
Schedule III - Pro Forma EBITDA
Schedule IV - Cost Synergies
Schedule V - BISYS Entities To Be Merged
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Environmental Disclosure
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Surviving Debt
Schedule 4.01(u) - Liens
Schedule 4.01(v) - Owned Real Property
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Intellectual Property
Schedule 4.01(y) - Material Contracts
Schedule 5.01(i) - Transactions with Affiliates
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Guaranty Supplement
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Intercreditor Agreement
Exhibit H - Form of Opinion of Counsel to the Loan Parties
Exhibit I - Form of Opinion of Local Counsel to the Loan Parties
FIRST LIEN SENIOR SECURED CREDIT AGREEMENT
FIRST LIEN SENIOR SECURED CREDIT AGREEMENT, dated as of March 3, 2006,
among OPEN SOLUTIONS INC., a Delaware corporation (the "BORROWER"), the
Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), the
Issuing Bank (as hereinafter defined), the Swing Line Bank (as hereinafter
defined), WACHOVIA BANK, NATIONAL ASSOCIATION ("WACHOVIA"), as collateral agent
(together with any successor collateral agent appointed pursuant to Article VII,
in such capacity, the "COLLATERAL AGENT") for the Secured Parties (as
hereinafter defined), Wachovia, as administrative agent (together with any
successor administrative agent appointed pursuant to Article VII, in such
capacity, the "ADMINISTRATIVE AGENT" and, together with the Collateral Agent,
the "AGENTS") for the Lender Parties (as hereinafter defined), and WACHOVIA
CAPITAL MARKETS, LLC, as Sole Bookrunner Manager and a Sole Lead Arranger (in
such capacities, the "ARRANGER").
PRELIMINARY STATEMENTS:
(1) The Borrower formed Husky Acquisition Corporation, a Delaware
corporation and a wholly-owned direct subsidiary ("ACQUISITIONCO"), for the
purpose of acquiring (the "ACQUISITION") all of the issued and outstanding stock
of BIS LP Inc., a Delaware corporation (the "COMPANY"), and all of the Company's
Subsidiaries and assets, from BISYS Inc., a Delaware corporation (the "SELLER"),
all pursuant to the terms of the Purchase Agreement (as hereinafter defined).
After the Acquisition, the Borrower will own all of the issued and outstanding
stock of AcquisitionCo and AcquisitionCo will own all of the issued and
outstanding stock of the Company.
(2) Simultaneously with entering into this Agreement, the Borrower is
entering into a senior secured second lien term loan agreement, dated as of the
date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with Section 5.02(k), the "SECOND LIEN
TERM LOAN FACILITY") with the guarantors party thereto, the lenders party
thereto, certain agents and arrangers party thereto and Wachovia, as
administrative agent;
(3) The Borrower has requested that (a) concurrently with the
consummation of the Acquisition, the Lender Parties lend to the Borrower up to
$290,000,000 pursuant to the Term Commitments under this Agreement which,
together with the proceeds of advances made to the Borrower by the lenders under
the Second Lien Term Loan Facility and at least $130,000,000 of cash on hand,
shall be used to pay the purchase price in connection with the Acquisition, and
to pay fees, expenses, and costs related thereto, and (b) from time to time, the
Lender Parties lend to the Borrower and issue Letters of Credit for the account
of the Borrower to provide working capital for and for other general corporate
purposes of the Borrower and its Subsidiaries, pursuant to the Revolving Credit
Commitments hereunder and in accordance with the terms of this Agreement. The
Lender Parties have indicated their willingness to agree to lend such amounts
and provide such Letters of Credit, but only on the terms and conditions of this
Agreement, including the granting of the Collateral pursuant to the Collateral
Documents and the making of the guarantees pursuant to Article VIII hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" has the meaning specified in the Preliminary Statements.
"ACQUISITIONCO" has the meaning specified in the Preliminary
Statements.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent specified by the Administrative Agent in writing to
the Lender Parties from time to time.
"ADVANCE" means a Term Advance, a Revolving Credit Advance, a Swing
Line Advance or a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"AGENTS" has the meaning specified in the recital of parties to this
Agreement.
"AGREEMENT" means this First Lien Senior Secured Credit Agreement, as
amended.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to
the amount, if any, that would be payable by any Loan Party or any of its
Subsidiaries to its counterparty to such Hedge Agreement in accordance with
its terms as if (a) such Hedge Agreement was being terminated early on such
date of determination, (b) such Loan Party or Subsidiary was the sole
"Affected Party" and (c) the Administrative Agent was the sole party
determining such payment amount pursuant to the provisions of the ISDA
Master Agreement in a commercially reasonable manner.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) in respect of (i) the Term Facility,
(1)1.50% per annum for Base Rate Advances and 2.50% per annum for
Eurodollar Rate Advances and (ii) the Revolving
----------
(1) The initial rates and the rates stated in the grid will be increased by 50
basis points if the Facilities shall not be rated B1 or better by ▇▇▇▇▇'▇.
Credit Facility, for the first two (2) full fiscal quarters after the
Effective Date, 1.50% per annum for Base Rate Advances and 2.50% per annum
for Eurodollar Rate Advances; (b) in respect of the Swing Line Facility,
for the first two (2) full fiscal quarters after the Effective Date, 1.50%
per annum; (c) in respect of the Revolving Credit Facility, for any time
subsequent to the first two (2) full fiscal quarters after the Effective
Date, the Applicable Margin for the Revolving Credit Facility shall be a
percentage per annum determined by reference to the Total Leverage Ratio as
set forth below:
EURODOLLAR BASE RATE
TOTAL LEVERAGE RATIO RATE ADVANCE ADVANCE
-------------------- ------------ ---------
Level I: > or = 4.50 2.75% 1.75%
Level II: > or = 4.00 but < 4.50 2.50% 1.50%
Level III: > or = 3.50 but < 4.00 2.25% 1.25%
Level IV: < 3.50 2.00% 1.00%
; and (d) in respect of the Swing Line Facility, for any time subsequent to
the first two (2) fiscal quarters after the Effective Date, a percentage
per annum determined by reference to the Total Leverage Ratio as set forth
above for Base Rate Advances. Pursuant to clauses (c) and (d) above, in
respect of the Revolving Credit Facility and the Swing Ling Facility, for
any time after the first two (2) full fiscal quarters after the Effective
Date, the Applicable Margin for each Base Rate Advance shall be determined
by reference to the Total Leverage Ratio in effect from time to time and
the Applicable Margin for each Eurodollar Rate Advance shall be determined
by reference to the Total Leverage Ratio in effect on the first day of each
Interest Period for such Advance; provided, however, that (A) no reduction
in the Applicable Margin shall be effective until the third Business Day
after the date on which the Administrative Agent receives the certificate
of the Chief Financial Officer of the Borrower to be delivered pursuant to
Section 5.03(b) or (c), as the case may be, and (B) as of the third
Business Day after the date on which the certificate described in clause
(A) was required to have been delivered but was not delivered, the
Applicable Margin shall be at Level I (in the case of the Revolving Credit
Facility and the Swing Line Facility) for so long as the Borrower has not
submitted to the Administrative Agent the information described in clause
(A) of this proviso as and when required under Section 5.03(b) or (c), as
the case may be.
"APPROPRIATE LENDER" means, at any time, with respect to (a) either of
the Term Facility or the Revolving Credit Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter of
Credit Facility, (i) the Issuing Bank and (ii) if the other Revolving
Credit Lenders have made Letter of Credit Advances pursuant to Section
2.03(c) that are outstanding at such time, each such other Revolving Credit
Lender and (c) the Swing Line Facility, (i) the Swing Line Bank and (ii) if
the other Revolving Credit Lenders have made Swing Line Advances pursuant
to Section 2.02(b) that are outstanding at such time, each such other
Revolving Credit Lender.
"APPROVED FUND" means any Fund that is administered or managed by (a)
a Lender Party, (b) an Affiliate of a Lender Party or (c) an entity or an
Affiliate of an entity that administers or manages a Lender Party.
"ARRANGER" has the meaning specified in the recital of parties to this
Agreement.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee (with the consent of any
party whose consent is required by Section 9.07 or the definition of
"ELIGIBLE Assignee"), and accepted by the Administrative Agent, in
accordance with Section 9.07 and in substantially the form of Exhibit C
hereto or any other form approved by the Administrative Agent.
"ASSUMING LENDER" has the meaning specified in Section 2.17(d).
"ASSUMPTION AGREEMENT" has the meaning specified in Section 2.17(d).
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest established by Wachovia in Charlotte,
North Carolina from time to time as Wachovia's prime rate; and
(b) 1/2 of 1% per annum plus the Federal Funds Rate.
The Base Rate is not intended to be nor will it necessarily be the
lowest rate of interest extended by Wachovia to its customers.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower specified by
the Borrower in writing to the Administrative Agent from time to time.
"BORROWING" means a Term Borrowing, a Revolving Credit Borrowing or a
Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Charlotte, North
Carolina and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period, all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, computer software, fixed
assets, real property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in accordance
with GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such
Person. For purposes of this definition, (a) the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price
less the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds, as the case
may be, (b) expenditures made in connection with the replacement,
substitution, restoration or repair of assets to the extent financed with
(i) insurance proceeds paid on account of loss or damage to the assets
being replaced, restored or repaired or (ii) awards of compensation arising
from the taking by eminent domain or condemnation of the assets being
replaced shall not constitute Capital Expenditures, (c) the purchase of
plant, property or equipment or software to the extent financed with the
proceeds of dispositions that are not required to be applied to prepay Term
Advances pursuant to Section 2.06(b) shall not constitute Capital
Expenditures and (d) up to $1,500,000 in the aggregate of expenditures
during the period from the Effective Date to March 31, 2006 relating to the
licensing of computer software from a Person identified to the
Administrative Agent shall not constitute Capital Expenditures.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries and having a maturity (except for
clauses (d) and (g) below) of not greater than 12 months from the date of
issuance thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States, (b) insured certificates of deposit of or
time deposits with any commercial bank that is a Lender Party or a member
of the Federal Reserve System, issues (or the parent of which issues)
commercial paper rated as described in clause (c) below, is organized under
the laws of the United States or any State thereof and has combined capital
and surplus of at least $500 million, (c) commercial paper issued by any
corporation organized under the laws of any State of the United States and
rated at least "Prime-2" (or the then equivalent grade) by ▇▇▇▇▇'▇ or "A-2"
(or the then equivalent grade) by S&P, (d) repurchase obligations of any
Lender Party or of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than 30 days, with
respect to securities issued or fully guaranteed or insured by the United
States government, (e) securities issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
▇▇▇▇▇'▇, (f) securities backed by standby letters of credit issued by any
Lender Party or any commercial bank satisfying the requirements of clause
(b) of this definition, or (g) Investments, classified in accordance with
GAAP as Current Assets of the Borrower or any of its Subsidiaries, in money
market investment programs registered under the Investment Company Act of
1940, as amended, which are administered by financial institutions having
combined capital and surplus of at least $500 million, and the portfolios
of which are limited such that all or substantially all of such Investments
are Investments of the character, quality and maturity described in clauses
(a) through (f) of this definition.
"CASUALTY RECEIPT" means any cash received by or paid to or for the
account of any Person in respect of proceeds of insurance or condemnation
awards (and payments in lieu thereof) in respect of equipment, fixed assets
or real property (including improvements thereon).
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CFC" means an entity that is a controlled foreign corporation under
Section 957 of the Internal Revenue Code.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
during any period of up to 12 consecutive months, commencing before or
after the date of this Agreement, the Continuing Directors shall cease for
any reason to constitute a majority of the board of directors of the
Borrower; or (b) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act, but excluding any
employee benefit plan of such person and its Subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 of the Securities Exchange Act) of
more than 30% of the shares of the Borrower; or (c) the occurrence of a
"change of control", "change in control" or similar circumstance under the
Second Lien Term Loan Facility, the Senior Subordinated Convertible Notes
or any material subordinated debt instrument of the Borrower.
"COLLATERAL" means all "Collateral" and "Mortgaged Property" referred
to in the Collateral Documents upon which a Lien is purported to be created
by any Collateral Document.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL AGENT" has the meaning specified in the recital of parties
to this Agreement.
"COLLATERAL AGENT'S OFFICE" means, with respect to the Collateral
Agent or any successor Collateral Agent, the office of such Agent as such
Agent may from time to time specify to the Borrower and the Administrative
Agent.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Mortgages,
each of the collateral documents, instruments and agreements delivered
pursuant to Section 5.01(j) or (k), and each other agreement that creates
or purports to create or perfect a Lien in favor of the Collateral Agent
for the benefit of the Secured Parties, including under any intellectual
property security agreement or supplement.
"COMMITMENT" means a Term Commitment, a Revolving Credit Commitment or
a Letter of Credit Commitment.
"COMMITMENT DATE" has the meaning specified in Section 2.17(b).
"COMPANY" has the meaning specified in the Preliminary Statements.
"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is or
becomes available to such Agent or such Lender Party on a non-confidential
basis from a source other than the Loan Parties.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONTINUING DIRECTORS" means the directors of the Borrower on the
Effective Date and each other director if, in each case, such other
director's nomination for election to the board of directors of the
Borrower is recommended by at least a majority of the then Continuing
Directors.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"CURRENT ASSETS" of any Person means all assets of such Person (other
than cash and Cash Equivalents) that would, in accordance with GAAP, be
classified as current assets on a balance sheet of such Person.
"CURRENT LIABILITIES" of any Person means all amounts that would, in
accordance with GAAP, be classified as current liabilities on a balance
sheet of such Person, but excluding (a) any Debt arising under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit and (b) the current portion of Funded Debt of such Person .
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than current
trade payables incurred in the ordinary course of such Person's business
and any earn-out obligation until such obligation becomes a liability on
the balance sheet of such Person in accordance with GAAP), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under Capitalized Leases, (f) all obligations
(contingent or otherwise) of such Person under acceptance, letter of credit
or similar facilities, (g) all obligations of such Person in respect of
Disqualified Equity Interests, (h) all obligations of such Person in
respect of Hedge Agreements, valued at the Agreement Value thereof, (i) all
Guaranteed Debt and Synthetic Debt of such Person and (j) all indebtedness
and other payment obligations referred to in clauses (a) through (i) above
of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness or other payment obligations.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, the sum of (a) all items that, in accordance with GAAP,
would be classified as indebtedness on a Consolidated balance sheet of such
Person at such date, (b) all obligations (contingent or otherwise) of such
Person under acceptance, letter of credit or similar facilities at such
date, (c) all Synthetic Debt of such Person at such date and (d) all
earnouts with respect to acquisitions after such earnouts shall have become
payable.
"DEBT PROCEEDS INVESTMENT" means the investment made on the Effective
Date by the Borrower in the equity or Debt of AcquisitionCo in the
following amounts from the following sources: (a) $290,000,000 in proceeds
from the Term Facility and (b) $60,000,000 in proceeds from the Second Lien
Term Loan Facility.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning specified in Section 2.07(b).
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(e) as of such
time.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Swing Line Bank pursuant to Section 2.02(b) to purchase a portion
of a Swing Line Advance made by the Swing Line Bank, (b) the Issuing Bank
pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit
Advance made by the Issuing Bank, (c) the Administrative Agent pursuant to
Section 2.02(e) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender
Party, (d) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) any
Agent or the Issuing Bank pursuant to Section 7.05 to reimburse such Agent
or the Issuing Bank for such Lender Party's ratable share of any amount
required to be paid by the Lender Parties to such Agent or the Issuing Bank
as provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.15(a), the remaining portion of
such Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the same
date as the Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"DISCLOSED LITIGATION" has the meaning specified in Section 3.01(d).
"DISQUALIFIED EQUITY INTEREST" means any Equity Interest which, by its
terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is exchangeable), or upon the happening
of any event or condition (a) matures or is mandatorily redeemable (other
than solely for Qualified Equity Interests), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset
sale so long as any rights of the holders thereof upon the occurrence of a
change of control or asset sale event shall be subject to the prior
repayment in full of the Advances and all other Obligations that are
accrued and payable and the termination of the Commitments), (b) is
redeemable at the option of the holder thereof (other than solely for
Qualified Equity Interests), in whole or in part, (c) provides for the
scheduled payments of dividends in cash, or (d) is or becomes convertible
into or exchangeable for Debt or any other Equity Interests that would
constitute Disqualified Equity Interests, in any case described in the
foregoing clause (a), (b), (c) or (d), prior to the date that is 180 days
after the Termination Date of the Term Facility.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto
or in the Assignment and Acceptance pursuant to which it became a Lender
Party, as the case may be, or such other office of such Lender Party as
such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, at any date of determination, the sum, determined on a
Consolidated basis, of (a) net income (or net loss) of the Borrower and its
Subsidiaries, plus (b) without duplication and to the extent deducted in
determining such net income, the sum of (i) interest expense, (ii) income
tax expense, (iii) depreciation expense, (iv) amortization expense, (v) any
non-cash charges, non-cash losses or non-cash expenses (including without
limitation non-cash stock option expenses), (vi) any non-recurring fees,
non-recurring cash charges or other non-recurring cash expenses in an
aggregate amount which, for any Measurement Period, when aggregated with
the amount of extraordinary or non-recurring cash losses described in
clause (vii) below for such Measurement Period, do not exceed $5 million,
(vii) any extraordinary or non-recurring cash losses which, for any
Measurement Period, when aggregated with the amount of non-recurring fees,
non-recurring cash charges and other non-recurring cash expenses described
in clause (vi) above for such Measurement Period, do not exceed $5 million,
(viii) any losses in respect of disposal of discontinued operations, and
(ix) any losses in respect of business dispositions or asset dispositions
outside the ordinary course of business, in each case of the Borrower and
its Subsidiaries determined in accordance with GAAP for the most recently
completed Measurement Period, minus (c) without duplication and to the
extent included in determining Consolidated net income, (i) any cash
payments made or any reversal recorded during such period in respect of
non-cash charges described in clause (b)(v) taken in a prior period, (ii)
any extraordinary or non-recurring gains and (iii) any gains in respect of
disposal of discontinued operations, in each case of the Borrower and its
Subsidiaries, determined in accordance with GAAP for the most recently
completed Measurement Period; provided that for each of the three fiscal
quarters ended June 30, 2005, September 30, 2005 and December 31, 2005,
EBITDA shall be the pro forma amounts set forth on Schedule III hereto;
provided further that for purposes of calculating EBITDA as of the
Effective Date and for each of the three Measurement Periods ending June
30, 2006, September 30, 2006 and December 31, 2006, "cost synergies"
related to the Acquisition shall be deemed to be as set forth in Schedule
IV hereto. The historical EBITDA for any Measurement Period of entities (A)
that are acquired by the Borrower or any of its Subsidiaries after the
Effective Date as permitted under the Loan Documents will be included in
the calculation of EBITDA and (B) that are disposed of by the Borrower or
any of its Subsidiaries after the Effective Date will be excluded in the
calculation of EBITDA; provided that, in the case of entities that are
acquired by the Borrower or any of its Subsidiaries after the Effective
Date, the Administrative Agent shall be furnished with audited financial
statements, or if audited financial statements are not available, other
financial statements reasonably acceptable to the Administrative Agent, of
such entities (or if the acquisition is of a division or branch of a larger
business or a group of businesses, the audited financial statements, or if
audited financial statements are not available, other financial statements
reasonably acceptable to the Administrative Agent of such larger business
or group of businesses, so long as the individual activities of the
acquired entity are clearly reflected in such financial statements,
together with a certificate certifying that the Borrower has reviewed the
historical financial statements of the division or branch and that they
reflect proper divisional accounting in relation to the large business or
group of businesses), reasonably satisfactory to the Administrative Agent
in all respects, confirming such historical results. In addition the
calculation of EBITDA may be adjusted in a manner reasonably satisfactory
to the Administrative Agent based on cost savings resulting from expense
reductions related to any acquisition of entities by the Borrower or any of
its Subsidiaries after the Effective Date as permitted under the Loan
Documents, provided that the Administrative Agent shall have received such
information relating to such acquisition as the Administrative Agent shall
have reasonably requested.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender Party; (b) an Affiliate of a
Lender Party; (c) an Approved Fund, (d) any Federal Reserve Bank, and (e)
any other Person (other than an individual) approved by (i) the
Administrative Agent, and (ii) in the case of an assignment of a Revolving
Credit Commitment, (x) the Issuing Bank and (y) unless a Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld, delayed or conditioned); provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify as
an Eligible Assignee under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety (to the extent relating to exposure to Hazardous Materials)
or the environment, including, without limitation, (a) by any governmental
or regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any applicable Federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree or judicial or legally binding agency
interpretation, policy or guidance relating to pollution or protection of
the environment, health or safety (to the extent relating to exposure to
Hazardous Materials) or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting.
"EQUITY INVESTMENT" means the Excess Cash Investment and the Debt
Proceeds Investment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414(b) or
(c) of the Internal Revenue Code or, solely for purposes of Section 412 of
the Internal Revenue Code and Section 302 of ERISA, Section 414(m) or (o)
of the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30 day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that could reasonably be expected to
constitute grounds for the termination of, or the appointment of a trustee
to administer, such Plan.
"ESCROW BANK" has the meaning specified in Section 2.15(b).
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided that, if for any reason such rate
is not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in U.S. dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates), by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means, for any period,
(a) the sum of:
(i) Consolidated net income (or loss) of the Borrower and
its Subsidiaries for such period plus
(ii) the aggregate amount of all non cash charges deducted
in arriving at such Consolidated net income (or loss) plus
(iii) if there was a net increase in Consolidated Current
Liabilities of the Borrower and its Subsidiaries during such
period, the amount of such net increase plus
(iv) if there was a net decrease in Consolidated Current
Assets of the Borrower and its Subsidiaries during such period,
the amount of such net decrease less
(b) the sum of:
(i) the aggregate amount of all non cash credits included in
arriving at such Consolidated net income (or loss) plus
(ii) if there was a net decrease in Consolidated Current
Liabilities of the Borrower and its Subsidiaries during such
period, the amount of such net decrease plus
(iii) if there was a net increase in Consolidated Current
Assets of the Borrower and its Subsidiaries during such period,
the amount of such net increase plus
(iv) the aggregate amount of Capital Expenditures of the
Borrower paid in cash during such period solely to the extent
permitted by this Agreement plus
(v) the aggregate amount of all regularly scheduled
principal payments of Funded Debt made during such period to the
extent permitted by this Agreement plus
(vi) the aggregate principal amount of all optional
prepayments of Funded Debt (other than Funded Debt that is
revolving in nature) made during such period to the extent
permitted by this Agreement plus
(vii) the aggregate principal amount of all commitment
reductions in the Revolving Credit Facility made during such
period or, if less, the amount of mandatory prepayments of the
Revolving Credit Facility pursuant to Section 2.06(b)(iii)
resulting from such commitment reductions plus
(viii) the aggregate principal amount of all mandatory
prepayments of the Term Facilities made during such period
pursuant to Section 2.06(b)(ii) in respect of Net Cash Proceeds
of the type described in clause (a) of the definition thereof to
the extent that the applicable Net Cash Proceeds were taken into
account in calculating such Consolidated net income (or loss) for
such period plus
(ix) the aggregate amount of restricted payments made in
cash during such period pursuant to Section 5.02(g) to the extent
that such restricted payments were financed with internally
generated funds; plus
(x) the amount of Investments made in cash during such
period pursuant to Section 5.02(f) to the extent financed with
internally generated funds.
"EXCESS CASH INVESTMENT" means the investment made in cash on the
Effective Date by the Borrower from its excess cash on hand in the common
equity or Debt of AcquisitionCo in an amount not less than $130,000,000.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before the occurrence of the Effective Date.
"EXTENSION OF CREDIT" means the making of an Advance or the issuance
or renewal of a Letter of Credit.
"FACILITY" means the Term Facility, the Revolving Credit Facility, the
Swing Line Facility or the Letter of Credit Facility.
"FACILITY INCREASE" has the meaning specified in Section 2.17(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding 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 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.
"FEE LETTER" means the third amended and restated fee letter dated
December 14, 2005 among the Borrower , the Administrative Agent and the
Arranger, as amended.
"FISCAL YEAR" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of determination, the
ratio of (a) Consolidated EBITDA minus an amount equal to all Capital
Expenditures (other than those constituting Capitalized Leases) made by or
on behalf of the Borrower and its Subsidiaries for the most recently
completed Measurement Period to (b) the sum of (i) interest payable in cash
on, and amortization of debt discount in respect of, all Debt for Borrowed
Money plus (ii) the scheduled principal amounts of all Debt for Borrowed
Money payable during such Measurement Period plus (iii) the aggregate
amount of current taxes payable on income of the Borrower and its
Subsidiaries on a consolidated basis and payable in cash, in each case, of
or by the Borrower and its Subsidiaries for the most recently completed
Measurement Period; provided that (x) for the Measurement Period ending
June 30, 2006, the amounts of Capital Expenditures, interest, principal and
taxes shall be determined by multiplying the amount for the quarter ending
on such date by 4, (y) for the Measurement Period ending September 30,
2006, the amounts of Capital Expenditures, interest, principal and taxes
shall be determined by multiplying the amount for the two quarters ending
on such date by 2, (z) for the Measurement Period ending December 31, 2006,
the amounts of Capital Expenditures, interest, principal and taxes shall be
determined by multiplying the amount for the three quarters ending on such
date by 4/3.
"FOREIGN BENEFIT ARRANGEMENT" has the meaning specified in Section
4.01(o)(v).
"FOREIGN PLAN" has the meaning specified in Section 4.01(o)(v).
"FUND" means any Person (other than an individual) that is or will be
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"FUNDED DEBT" of any Person means Debt of such Person that by its
terms matures more than one year after the date of determination or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, excluding all amounts of Funded Debt of such Person
required to be paid or prepaid within one year after the date of
determination.
"GAAP" has the meaning specified in Section 1.03.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board, bureau or similar body, whether ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right, undertaking
or other action of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
"GRANTING LENDER" has the meaning specified in Section 9.07(k).
"GUARANTEED DEBT" means, with respect to any Person, any obligation or
arrangement of such Person to guarantee any Debt, leases, dividends or
other payment obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co making, discounting with recourse or sale with recourse by
such Person of the obligation of a primary obligor, (b) the obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
assets, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Guaranteed Debt shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranteed Debt is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such Guaranteed Debt)
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder), as determined by such Person in good faith.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 8.01.
"GUARANTORS" means the Subsidiaries of the Borrower listed on Schedule
II hereto (which, for the avoidance of doubt shall not include the Company
or the Subsidiaries of the Company listed on Schedule V hereto) and each
other Subsidiary of the Borrower that shall be required to execute and
deliver a guaranty or guaranty supplement pursuant to Section 5.01(j).
"GUARANTY" means the guaranty set forth in Article VIII together with
each other guaranty and guaranty supplement delivered pursuant to Section
5.01(j), in each case as amended, amended and restated, modified or
otherwise supplemented.
"GUARANTY SUPPLEMENT" has the meaning specified in Section 8.07.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, toxic mold and
radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate, commodity or currency swap,
cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other
hedging agreements (including, without limitation, all "swap agreements" as
defined in 11 U.S.C. Section 101).
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"INCREASE DATE" has the meaning specified in Section 2.17(a).
"INCREASING LENDER" has the meaning specified in Section 2.17(b).
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
"INFORMATION MEMORANDUM" means the information memorandum dated
October 2005 used by the Arranger in connection with the syndication of the
Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit hereunder.
"INITIAL ISSUING BANK" means Wachovia.
"INITIAL LENDER PARTIES" means the Initial Issuing Bank, the Initial
Lenders and the Initial Swing Line Bank.
"INITIAL LENDERS" means the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders.
"INITIAL SWING LINE BANK" means Wachovia.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning specified
in the Security Agreement.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, in
substantially the form of Exhibit G hereto, between the Collateral Agent
and the collateral agent for the Second Lien Term Loan Facility and
acknowledged by the Borrower, as amended.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three, six or, if
available to all Lenders of such Eurodollar Rate Advance, nine or twelve
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after the
applicable Termination Date for such Facility;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to
occur on the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVENTORY" means has the meaning specified in Section 1(b) of the
Security Agreement.
"INVESTMENT" means any loan or advance to any Person, any purchase or
other acquisition of any Equity Interests or Debt or the assets comprising
a division or business unit or a substantial part or all of the business of
any Person which does not constitute a Capital Expenditure, any capital
contribution to any Person or any other direct or indirect investment in
any Person, including, without limitation, any acquisition by way of a
merger or consolidation (or similar transaction) and any arrangement
pursuant to which the investor incurs Debt of the types referred to in
clause (i) or (j) of the definition of "DEBT" in respect of any Person.
"ISDA MASTER AGREEMENT" means the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc., as in effect from time to time.
"ISSUING BANK" means the Initial Issuing Bank and any Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as each such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative Agent of
its Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative Agent
in the Register), for so long as such Initial Issuing Bank or Eligible
Assignee, as the case may be, shall have a Letter of Credit Commitment.
"L/C COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"L/C DISBURSEMENT" means a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(d)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing Line
Bank.
"LENDERS" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank
or any Revolving Credit Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing Bank
at any time, the obligation of the Issuing Bank to issue Letters of Credit
in an aggregate face amount not to exceed the amount set forth opposite the
Issuing Bank's name on Schedule I hereto under the caption "Letter of
Credit Commitment" or, if the Issuing Bank has entered into an Assignment
and Acceptance, set forth for the Issuing Bank in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as the Issuing
Bank's "Letter of Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05. The initial Letter of Credit
Commitment shall be $5,000,000.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as
such amount may be reduced at or prior to such time pursuant to Section
2.05.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(d).
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means (a) this Agreement (including the Guaranty),
(b) the Notes, (c) the Collateral Documents, (d) the Fee Letter, (e) each
Letter of Credit Agreement and (f) the Intercreditor Agreement, in each
case as amended, and excluding any Secured Hedge Agreement.
"LOAN PARTIES" means the Borrower and the Guarantors.
"MAJORITY FACILITY LENDERS" means (a) with respect to the Term
Facility, the holders of at least a majority in interest of the aggregate
unpaid principal amount of the Term Advances or (b) with respect to the
Revolving Credit Facility, the Required Revolving Credit Lenders.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means (a) any event, condition or
circumstance, individually or in the aggregate, that has had, or could
reasonably be expected to have, a material adverse effect on the business,
properties, assets, operations or financial condition of the Borrower and
its subsidiaries, taken as a whole, or (b) an effect, event, occurrence,
state of facts, or development that is or would reasonably be expected to
be, in each case, individually or together with any other effect, event,
occurrence, state of facts, or development, materially adverse, (i) as to
the Company, to the assets, liabilities, financial condition, or results of
operations of the Company and the Subsidiaries taken as a whole or (ii) as
to a party to the Purchase Agreement, on the ability of such party to
perform its obligations under the Purchase Agreement or consummate the
Acquisition; provided, that none of the following shall be deemed, either
alone or in combination, to constitute, and none of the following shall be
taken into account in determining whether there has been or shall be, a
Material Adverse Change to the extent such changes or effects do not result
from or relate to or are not exacerbated by any failure to comply with any
"Law" (as defined in the Purchase Agreement) by any of the Seller and its
"Affiliates"
(as defined in the Purchase Agreement); any adverse change, effect, event,
occurrence, state of facts, or development caused by (A) the execution or
delivery of the Purchase Agreement by the parties thereto or the public
announcement of the identity of the Borrower as purchaser under the
Purchase Agreement or the Transactions (as defined in the Purchase
Agreement); (B) conditions affecting the industry in which the Company or
any of its Subsidiaries participate, the United States economy as a whole,
or the capital markets in general, which do not disproportionately impact
the Company and its Subsidiaries taken as a whole; (C) an act of terrorism,
or an escalation of war, or hostilities involving the United States which
do not disproportionately impact the Company and its Subsidiaries taken as
a whole; or (D) a change in GAAP after the date of the Purchase Agreement
which does not disproportionately impact the Company and its Subsidiaries
taken as a whole. Solely for purposes of this definition, the term
"Subsidiaries" shall have the meaning ascribed thereto in the Purchase
Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, properties, assets, operations or financial condition of the
Borrower and its Subsidiaries, taken as a whole, (b) the rights and
remedies of any Agent or any Lender Party under any Transaction Document or
(c) the ability of any Loan Party to perform its obligations under any
Transaction Document to which it is or is to be a party.
"MATERIAL CONTRACT" means, with respect to any Person, each contract
to which such Person is a party involving aggregate consideration
reasonably expected to be payable to or by such Person of $12,500,000 or
more during any Fiscal Year.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower ending
on or prior to such date.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iii)(B).
"MORTGAGES" has the meaning specified in Section 3.01(a)(iii).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has or could
reasonably be expected, under Title IV of ERISA, to have any other
obligation or liability.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could be reasonably
likely to have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to (a) any sale, lease,
transfer or other disposition of any asset of or by any Person or (b) the
incurrence or issuance of any Debt by any Person or (c) the sale or
issuance of any Equity Interests by (including, without limitation, any
capital contribution to) any Person or (d) any Casualty Receipt received by
or paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such
Person in connection with such transaction after deducting therefrom only
(without
duplication) (i) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions, (ii) the amount of taxes payable in
connection with or as a result of such transaction and (iii) the amount of
any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon
the consummation of such transactions (including interest, premium and
other amounts required to be paid in connection therewith), in each case to
the extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any Loan
Party and are properly attributable to such transaction or to the asset
that is the subject thereof; provided, however, that in the case of taxes
that are deductible under clause (ii) above but for the fact that, at the
time of receipt of such cash, such taxes have not been actually paid or are
not then payable, such Loan Party or such Subsidiary may deduct an amount
(the "RESERVED AMOUNT") equal to the amount reserved in accordance with
GAAP for such Loan Party's or such Subsidiary's reasonable estimate of such
taxes, other than taxes for which such Loan Party or such Subsidiary is
indemnified, provided further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; provided further that Net Cash
Proceeds shall not include any cash receipts from any transaction described
in clause (a) or (d) above to the extent (A) such cash receipts are
reinvested in the business of the Borrower and its Subsidiaries (including
through the purchase of at least a majority of the Equity Interests in a
Person engaged in the businesses engaged in by the Borrower and its
Subsidiaries or businesses reasonably related or ancillary thereto) within
270 days after the date of receipt thereof or (B) the proceeds of such cash
receipts (individually or in the aggregate) from any such transaction shall
not exceed $1,000,000.
"NEW OWNED PROPERTY" has the meaning specified in Section 5.01(j).
"NOTE" means a Term Note or a Revolving Credit Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(d).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in Section
2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.01(d).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means the obligations of any Loan Party under the Loan
Documents, including (a) the obligation to pay principal, interest, Letter
of Credit commissions, reimbursement amounts, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by
such Loan Party under any Loan Document and (b) the obligation of such Loan
Party to reimburse any amount in respect of any of the foregoing that any
Lender Party, in its sole discretion, may elect to pay or advance on behalf
of such Loan Party.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"OWNED REAL PROPERTIES" means those properties listed in Schedule
4.01(v) hereto.
"PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56, signed into law October 26, 2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED ENCUMBRANCES" has the meaning specified in the Mortgages.
"PERMITTED LIENS" means each of the following: (a) Liens for taxes,
assessments and governmental charges or levies to the extent not required
to be paid under Section 5.01(b); (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that (i) are not overdue for a period of more than 30 days or
are being contested in good faith by appropriate proceedings diligently
prosecuted and (ii) individually or together with all other Permitted Liens
outstanding on any date of determination do not materially adversely affect
the use of the property to which they relate; (c) pledges or deposits in
the ordinary course of business to secure obligations under workers'
compensation laws, unemployment insurance or similar legislation or to
secure public or statutory obligations; (d) deposits to secure the
performance of bids, trade contracts, governmental contracts and leases
(other than Debt for Borrowed Money), statutory obligations, surety, stay,
customs and appeal bonds, performance bonds and other obligations of a like
nature (including those to secure health, safety and environmental
obligations) in each case incurred in the ordinary course of business; (e)
easements, rights-of-way, restrictions, encroachments, protrusions and
other similar encumbrances and minor title defects affecting real property
which, in the aggregate, do not in any case materially interfere with the
ordinary conduct of the business of the Borrower or any Subsidiary of the
Borrower; (f) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 6.01(g); (g) leases,
licenses, subleases or sublicenses granted to others in the ordinary course
of business which do not (i) interfere in any material respect with the
business of the Borrower or any Subsidiary of the Borrower or (ii) secure
any Debt; (h) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business; (i) Liens
representing any interest or title of a licensor, lessor or sub-licensor
under any lease or license entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business; (j) Liens (i) on cash
advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Sections 5.02(f)(ix) and (x) to be applied
against the purchase price for such Investment, and (ii) consisting of an
agreement to dispose of any property in a disposition permitted under
Section 5.02(e), in each case, solely to the extent such Investment or
disposition, as the case may be, would have been permitted on the date of
the creation of such Lien; (k) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale of goods entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
business permitted by this Agreement; (l) Liens that are contractual rights
of set-off (i) relating to the establishment of depository relations with
banks in the ordinary course of business that are not given in connection
with the issuance of Debt, (ii) relating to pooled deposit or sweep
accounts of the Borrower or any of its Subsidiaries to permit satisfaction
of overdraft or similar obligations incurred in the ordinary course of
business of Borrower and its Subsidiaries or (iii) relating to purchase
orders and other agreements entered into with customers of the Borrower or
any of its Subsidiaries in the ordinary course of business; and (m) Liens
solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any of
its Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGED DEBT" has the meaning specified in the Security Agreement.
"PLEDGED SHARES" has the meaning specified in the Security Agreement.
"POST PETITION INTEREST" has the meaning specified in Section 8.08(b).
"PRO RATA SHARE" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Revolving Credit Commitment
as in effect immediately prior to such termination) and the denominator of
which is an amount equal to the Revolving Credit Facility at such time (or,
if the Commitments shall have been terminated pursuant to Section 2.05 or
6.01, the Revolving Credit Facility as in effect immediately prior to such
termination).
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
September 15, 2005, by and among the Borrower, AcquisitionCo, the Company
and the Seller.
"QUALIFIED EQUITY INTERESTS" means any Equity Interests that are not
Disqualified Equity Interests.
"RECEIVABLES" has the meaning specified in Section 1(c) of the
Security Agreement.
"REDUCTION AMOUNT" has the meaning specified in Section 2.06(b)(vi).
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Purchase Agreement and the Second Lien
Term Loan Facility.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused Term Commitments at such time and (d) the aggregate Unused
Revolving Credit Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time (i) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (ii) such Lender's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (iii) the aggregate unused Term Commitment of such Lender at such
time and (iv) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank and Letter of Credit
Advances
owing to the Issuing Bank and the Available Amount of each Letter of Credit
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"REQUIRED REVOLVING CREDIT LENDERS" means, at any time, Revolving
Credit Lenders owed or holding at least a majority in interest of the sum
of (a) the aggregate principal amount of (i) the Revolving Credit Advances,
(ii) the Swing Line Advances and (iii) the Letter of Credit Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters
of Credit outstanding at such time and (c) the aggregate Unused Revolving
Credit Commitments at such time; provided, however, that if any Revolving
Credit Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Revolving Credit Lenders at
such time (i) the aggregate principal amount of (A) the Revolving Credit
Advances, (B) the Swing Line Advances and (C) the Letter of Credit Advances
owing to such Revolving Credit Lender (in its capacity as a Revolving
Credit Lender) and outstanding at such time, (ii) such Revolving Credit
Lender's Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) the Unused Revolving Credit
Commitment of such Revolving Credit Lender at such time. For purposes of
this definition, the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank and Letter of Credit Advances owing to the
Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Revolving Credit Lenders ratably in accordance
with their respective Revolving Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any of
its Subsidiaries.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(b).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender at any time, the obligation of such Revolving Credit Lender,
if any, to make Revolving Credit Advances and participate in Swingline
Advances and Letter of Credit Advances in an aggregate principal and/or
face amount not to exceed the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05. The initial aggregate amount of the Revolving
Credit Commitments shall be $30,000,000.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances made by such Lender, as
amended, endorsed or replaced.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SECOND LIEN TERM LOAN FACILITY" has the meaning specified in the
Preliminary Statements.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required or
permitted under Article V that is entered into by and between any Loan
Party and any Hedge Bank and that is secured by the Collateral Documents.
"SECURED OBLIGATIONS" has the meaning specified in Section 2 of the
Security Agreement and shall include, without limitation, the obligations
of the Borrower under each Secured Hedge Agreement.
"SECURED PARTIES" means the Agents, the Lender Parties and the Hedge
Banks.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(iii).
"SECURITIES EXCHANGE ACT" means Securities Exchange Act of 1934, as
amended from time to time
"SELLER" has the meaning specified in the Preliminary Statements.
"SENIOR DEBT FOR BORROWED MONEY" of any Person means all Debt for
Borrowed Money of such Person other than Debt for Borrowed Money that is
subordinated (on terms and conditions satisfactory to the Administrative
Agent) to the Obligations of such Person under the Loan Documents.
"SENIOR LEVERAGE RATIO" means, at any date of determination, the ratio
of (a) Consolidated total Senior Debt for Borrowed Money of the Borrower
and its Subsidiaries as of such date to (b) Consolidated EBITDA of the
Borrower and its Subsidiaries for the most recently completed Measurement
Period.
"SENIOR SUBORDINATED CONVERTIBLE NOTES" means the senior subordinated
convertible notes due 2035 issued by the Borrower pursuant to the Senior
Subordinated Convertible Notes Indenture, as amended to the extent
permitted under the Loan Documents.
"SENIOR SUBORDINATED CONVERTIBLE NOTES INDENTURE" means the indenture
dated as of February 2, 2005 between the Borrower and U.S. Bank National
Association, as trustee, as amended to the extent permitted under the Loan
Documents.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could be reasonably likely to have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"SPC" has the meaning specified in Section 9.07(k).
"SUBORDINATED OBLIGATIONS" has the meaning specified in Section 8.08.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust, estate or other business entity
of which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in Section
7.01(c).
"SURVIVING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the Initial
Extension of Credit.
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(c) or (b) any Revolving Credit Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" means the Initial Swing Line Bank and any Eligible
Assignee to which the Swing Line Commitment hereunder has been assigned
pursuant to Section 9.07 so long as such Eligible Assignee expressly agrees
to perform in accordance with their terms all obligations that by the terms
of this Agreement are required to be performed by it as a Swing Line Bank
and notifies the Administrative Agent of its Applicable Lending Office and
the amount of its Swing Line Commitment (which information shall be
recorded by the Administrative Agent in the Register), for so long as such
Initial Swing Line Bank or Eligible Assignee, as the case may be, shall
have a Swing Line Commitment.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank pursuant to Section 2.01(c) or the
Revolving Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means, with respect to the Swing Line Bank at
any time, the obligation of the Swing Line Bank to make Swing Line Advances
in an aggregate principal amount not to exceed the amount set forth
opposite the Swing Line Bank's name on Schedule I hereto under the caption
"Swing Line Commitment" or, if the Swing Line Bank has entered into an
Assignment and Acceptance, set forth for the Swing Line Bank in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d)
as the Swing Line Bank's "Swing Line Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05. The initial
Swing Line Commitment is $5,000,000.
"SWING LINE FACILITY" means, at any time, an amount equal to the
amount of the Swing Line Bank's Swing Line Commitment at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"SYNTHETIC DEBT" means, with respect to any Person, without
duplication of any clause within the definition of 'Debt," all obligations
of such Person that do not appear as indebtedness or liabilities on the
balance sheet of such Person in respect of transactions entered into by
such Person that are intended to function primarily as a financing or a
borrowing of funds or that, upon the insolvency or bankruptcy of such
Person or otherwise upon application of any Bankruptcy Law to such Person,
would be characterized as indebtedness of such Person (without regard to
accounting treatment), including, without limitation, under any lease that
is treated as an operating lease for financial accounting purposes and a
financing lease for tax purposes (i.e., a "synthetic lease").
"TAXES" has the meaning specified in Section 2.12(a).
"TERM ADVANCE" has the meaning specified in Section 2.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means, with respect to any Term Lender at any time,
the obligation of such Term Lender, if any, to make Term Advances in an
aggregate principal amount not to exceed the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Term Commitment" or,
if such Lender has entered into one of more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term Commitment", as
such amount may be reduced at or prior to such time pursuant to Section
2.05. The initial aggregate amount of the Term Commitments shall be
$290,000,000.
"TERM FACILITY" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
"TERM NOTE" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender, as amended, endorsed or replaced.
"TERMINATION DATE" means the earlier of (a) the date of termination in
whole of the Revolving Credit Commitments, the Letter of Credit Commitment,
the Swing Line Commitment and the Term Commitments pursuant to Section 2.05
or 6.01 and (b) (i) for purposes of the Revolving Credit Facility, the
Swing Line Facility and the Letter of Credit Facility, March 3, 2011 and
(ii) for purposes of the Term Facility, September 3, 2011.
"TOTAL LEVERAGE RATIO" means, at any date of determination, the ratio
of (a) Consolidated total Debt for Borrowed Money of the Borrower and its
Subsidiaries at such date to (b) Consolidated EBITDA of the Borrower and
its Subsidiaries for the most recently completed Measurement Period.
"TRANSACTION" means the Acquisition and the other transactions
contemplated by the Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents and
the Related Documents.
"TYPE" refers to the distinction between Advances bearing interest
based on the Base Rate and Advances bearing interest based on the
Eurodollar Rate.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, an amount equal to (a) such Lender's
Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Revolving Credit Advances, Swing Line
Advances and Letter of Credit Advances made by such Lender (in its capacity
as a Lender) and outstanding at such time plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
unreimbursed Letter of Credit Advances made by the Issuing Bank pursuant to
Section 2.03(c) and outstanding at such time and (C) the aggregate
principal amount of all unreimbursed Swing Line Advances made by the Swing
Line Bank pursuant to Section 2.01(c) and outstanding at such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could be reasonably likely to have liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"WACHOVIA" has the meaning specified in the Preliminary Statements.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Debt at
any date, the number of years obtained by dividing: (a) the sum of the
products of (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, multiplied by (ii) the
number of years, calculated to the nearest one-twelfth, that will elapse
between such date and the making of such payment, by (b) the then
outstanding principal amount of such Debt.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents in the computation of periods of
time from a specified date to a later specified date, the word "FROM" means
"from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles as in effect from time to time
("GAAP"). Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP;
provided that, if at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Term
Advances. Each Term Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a "TERM ADVANCE") to the
Borrower on the Effective Date in an amount not to exceed such Lender's Term
Commitment at such time, consisting of Term Advances made simultaneously by the
Term Lenders ratably according to their Term Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time
on any Business Day during the period from the day after the Effective Date
until the Termination Date in respect of the Revolving Credit Facility in an
amount for each such Advance not to exceed such Lender's Unused Revolving Credit
Commitment at such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $1,000,000 or an integral multiple of $250,000 in excess
thereof (other than a Borrowing the proceeds of which shall be used solely to
repay or prepay in full outstanding Swing Line Advances or outstanding Letter of
Credit Advances) and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Revolving Credit
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(b), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Swing Line Bank agrees on the terms
and conditions hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in respect of the Revolving Credit
Facility (i) in an aggregate amount for all Swing Line Advances not to exceed at
any time outstanding the Swing Line Bank's Swing Line Commitment at such time
and (ii) in an amount for each such Swing Line Borrowing not to exceed the
aggregate of the Unused Revolving Credit Commitments of the Revolving Credit
Lenders at such time. No Swing Line Advance shall be used for the purpose of
funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in an amount of $100,000 or an integral multiple of
$50,000 in excess thereof and shall be made as a Base Rate Advance. Within the
limits of the Swing Line Facility and within the limits referred to in clause
(ii) above, the Borrower may borrow under this Section 2.01(c), repay pursuant
to Section 2.04(c) or prepay pursuant to Section 2.06(a) and reborrow under this
Section 2.01(c). Immediately upon the making of a Swing Line Advance, each
Revolving Credit Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Bank a risk
participation in such Swing Line Advance in an amount equal to such Lender's Pro
Rata Share of such Swing Line Advance.
(d) The Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "LETTERS OF
CREDIT") in U.S. dollars for the account of the Borrower from time to time on
any Business Day during the period from the Effective Date until 60 days before
the Termination Date in respect of the Revolving Credit Facility in an aggregate
Available Amount (i) for all Letters of Credit, not to exceed at any time the
Issuing Bank's Letter of Credit Commitment at such time and (ii) for each such
Letter of Credit, not to exceed the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than the earlier of (a) one year after its date of
issuance and (b) the fifth Business Day prior to the Termination Date in respect
of the Revolving Credit Facility, but may by its terms be renewable annually
upon written notice (a "NOTICE OF RENEWAL") given to the Issuing Bank (who shall
promptly notify the Administrative Agent) on or prior to any date for notice of
renewal set forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Letter of Credit
and upon fulfillment of the applicable conditions set forth in Article III
unless the Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit that such Letter of Credit will not be so renewed
(a "NOTICE OF TERMINATION"); provided that the terms of each Letter of Credit
that is renewable annually shall (x) require the Issuing Bank that issued such
Letter of Credit to give the beneficiary named in such Letter of Credit notice
of any Notice of Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Letter of Credit prior to the date such Letter of
Credit otherwise would have been renewed and (z) not permit the expiration date
(after giving effect to any renewal) of such Letter of Credit in any event to be
extended to a date later than five Business Days before the Termination Date in
respect of the Revolving Credit Facility. If either a Notice of Renewal is not
given by the Borrower or a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Letter of Credit shall
expire on the date on which it otherwise would have been renewed. Within the
limits of the Letter of Credit Facility, and subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(d), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(d).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (Charlotte, North Carolina time) on the third Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof. Each such notice of a Borrowing (a "NOTICE OF BORROWING") shall be in
writing, or by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing consisting
of Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Appropriate Lender shall, before 12:00 Noon (Charlotte, North Carolina time) on
the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments under the applicable Facility of such
Lender and the other Appropriate Lenders. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such funds available to
the Borrower by crediting the Borrower's Account or by wire transfer of such
funds to an account specified by the
Borrower; provided, however, that, in the case of any Revolving Credit
Borrowing, the Administrative Agent shall first apply such funds to prepay
ratably the aggregate principal amount of any Swing Line Advances and Letter of
Credit Advances outstanding at such time, together with interest accrued and
unpaid thereon to and as of such date.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not
later than 11:00 A.M. (Charlotte, North Carolina time) on the date of the
proposed Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF
SWING LINE BORROWING") shall be in writing, or by telephone, confirmed
immediately in writing, or telex or telecopier, specifying therein the requested
(i) date of such Borrowing, (ii) amount of such Borrowing and (iii) maturity of
such Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Borrowing). The Swing Line Bank will make the amount of
the requested Swing Line Advances available to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account or by wire
transfer of such funds to an account specified by the Borrower.
(ii) The Swing Line Bank may, at any time in its sole and absolute
discretion, request on behalf of the Borrower (and the Borrower hereby
irrevocably authorizes the Swing Line Bank to so request on its behalf) that
each Revolving Credit Lender make a Base Rate Advance in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Advances then outstanding.
Such request shall be deemed to be a Notice of Borrowing for purposes hereof and
shall be made in accordance with the provisions of Section 2.02(a) without
regard solely to the minimum amounts specified therein but subject to the
satisfaction of the conditions set forth in Section 3.02. The Swing Line Bank
shall furnish the Borrower with a copy of the applicable Notice of Borrowing
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Notice of Borrowing available for the account of its
Applicable Lending Office to the Administrative Agent for the account of the
Swing Line Bank, by deposit to the Administrative Agent's Account, in same day
funds, not later than 12:00 Noon on the day specified in such Notice of
Borrowing.
(iii) If for any reason any Swing Line Advance cannot be refinanced by
a Revolving Credit Borrowing as contemplated by Section 2.02(b)(ii), the request
for Base Rate Advances submitted by the Swing Line Bank as set forth in Section
2.02(b)(ii) shall be deemed to be a request by the Swing Line Bank that each of
the Revolving Credit Lenders fund its risk participation in the relevant Swing
Line Advance and each Revolving Credit Lender's payment to the Administrative
Agent for the account of the Swing Line Bank pursuant to Section 2.02(b)(ii)
shall be deemed payment in respect of such participation.
(iv) If and to the extent that any Revolving Credit Lender shall not
have made the amount of its Pro Rata Share of such Swing Line Advance available
to the Administrative Agent in accordance with the provisions of Section
2.02(b)(ii), such Revolving Credit Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of the applicable Notice of Borrowing delivered by the Swing
Line Bank until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Advances or to purchase and fund risk participations in Swing Line Advance
pursuant to this Section 2.02(b) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line
Bank, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender's obligation to make Revolving Credit Advances
pursuant to Section 2.02(b)(ii) is subject to satisfaction of the conditions set
forth in Section 3.02. No funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Advances,
together with interest as provided herein.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder, or for any Borrowing if the aggregate amount of such
Borrowing is less than $1,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09(b)(ii) or 2.10(c) or (d) and (ii) the Advances may not be
outstanding as part of more than 15 separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of the Borrower's
failure to borrow on the date specified therein as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received written notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender agrees to pay to the Administrative Agent forthwith on demand such
corresponding amount and to pay interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at the Federal Funds Rate. In the
event such Lender does not pay such amount to the Administrative Agent within
three Business Days, the Borrower shall repay such amount to the Administrative
Agent with interest thereon for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent at the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing as of the date of
such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (Charlotte, North Carolina time) on the
tenth Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the Borrower to the Issuing Bank, which
shall give to the Administrative Agent prompt notice thereof by telecopier or
electronic communication. Each such notice of issuance of a Letter of Credit (a
"NOTICE OF ISSUANCE") shall be in writing, or by telephone, confirmed
immediately in writing, or telecopier or electronic communication, specifying
therein the requested (i) date of such issuance (which shall be a Business Day),
(ii) Available Amount of such Letter of Credit (which amount shall not be less
than $100,000 unless otherwise agreed by the Issuing Bank and to the
Administrative Agent), (iii) expiration date of such Letter of Credit, (iv) name
and address of the beneficiary of such Letter of Credit and (v) form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letter of credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "LETTER OF CREDIT
AGREEMENT"). If the requested form of such Letter of Credit is acceptable to the
Issuing Bank in its sole discretion, the Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 9.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Upon request by the Administrative
Agent, the Issuing Bank shall promptly furnish to the Administrative Agent for
dissemination to the Revolving Credit Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of any prior report, and
including therein, among other things, the account party, the beneficiary, the
undrawn face amount, expiry date as well as any payments or expirations which
may have occurred. The Issuing Bank shall also provide to the Administrative
Agent promptly upon request copies of the Letters of Credit and a summary report
of the nature and extent of the obligations under the Letters of Credit then
outstanding.
(c) Participations in Letters of Credit. Upon the issuance of a Letter
of Credit by the Issuing Bank under Section 2.03(a), the Issuing Bank shall be
deemed, without further action by any party hereto, to have sold to each
Revolving Credit Lender, and each Revolving Credit Lender shall be deemed,
without further action by any party hereto, to have purchased from the Issuing
Bank, a participation in such Letter of Credit in an amount for each Revolving
Credit Lender equal to such Lender's Pro Rata Share of the Available Amount of
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay such Lender's Pro Rata Share
of each L/C Disbursement made by the Issuing Bank and not reimbursed by the
Borrower forthwith on the date due as provided in Section 2.04(d) (or which has
been so reimbursed but must be returned or restored by the Issuing Bank because
of the occurrence of an event specified in Section 6.01(f) or otherwise) by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to such
Lender's Pro Rata Share of such L/C Disbursement. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire and pay for
participations pursuant to this Section 2.03(c) in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or the
termination of the Commitments, and that each such payment shall be made without
any off-set, abatement, withholding or reduction whatsoever. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such L/C Disbursement available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date such L/C
Disbursement is due pursuant to Section 2.04(d) until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate for its account or
the account of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the Issuing
Bank shall be reduced by such amount on such Business Day.
(d) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.
(e) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date
(f) Applicability of ISP98. Unless otherwise expressly agreed by the
Issuing Bank and the Borrower when a Letter of Credit is issued, the rules of
the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
SECTION 2.04. Repayment of Advances. (a) Term Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Term Lenders
the aggregate outstanding principal amount of the Term Advances on the following
dates in the amounts specified below (which amounts shall be reduced as a result
of the application of prepayments in accordance with Section 2.06):
Date Amount
------------------ ------------
June 30, 2006 $ 725,000
September 30, 2006 $ 725,000
December 31, 2006 $ 725,000
March 31, 2007 $ 725,000
June 30, 2007 $ 725,000
September 30, 2007 $ 725,000
December 31, 2007 $ 725,000
March 31, 2008 $ 725,000
June 30, 2008 $ 725,000
September 30, 2008 $ 725,000
December 31, 2008 $ 725,000
March 31, 2009 $ 725,000
June 30, 2009 $ 725,000
September 30, 2009 $ 725,000
December 31, 2009 $ 725,000
March 31, 2010 $ 725,000
June 30, 2010 $ 725,000
September 30, 2010 $ 725,000
December 31, 2010 $ 725,000
March 31, 2011 $ 725,000
June 30, 2011 $137,750,000
September 3, 2011 $137,750,000
provided, however, that the final principal installment shall be repaid on the
Termination Date in respect of the Term Facility and in any event shall be in an
amount equal to the aggregate principal amount of the Term Advances outstanding
on such date.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date in respect of the Revolving Credit Facility the aggregate
principal amount of the Revolving Credit Advances then outstanding.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date in respect of the Revolving Credit
Facility.
(d) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on demand the
outstanding principal amount of each Letter of Credit Advance made by each of
them.
(ii) The obligations of the Borrower and the Revolving Credit Lenders,
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit, in respect of any Letter of Credit
(including all reimbursement obligations payable to the Issuing Bank with
respect thereto) shall be, in the absence of gross negligence or willful
misconduct by the Issuing Bank, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, any or all of the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft, certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of the
obligations of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrower may, upon at least five Business Days' written notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Term Commitments, the Swing Line Facility, the Letter of Credit Facility
and the Unused Revolving Credit Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$1,000,000 or an integral multiple of $250,000 in excess thereof and (ii) shall
be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility. Any such termination or reduction
shall be permanent.
(b) Mandatory. (i) From time to time upon each repayment or prepayment
of the Term Advances, the aggregate Term Commitments of the Term Lenders shall
be automatically and permanently reduced, on a pro rata basis, by an amount
equal to the amount by which the aggregate Term Commitments immediately prior to
such reduction exceed the aggregate unpaid principal amount of the Term Advances
then outstanding (after giving effect to any such repayment or prepayment
thereof).
(ii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
(iii) The Swing Line Facility shall be permanently reduced from time
to time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
(iv) The Revolving Credit Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) or (ii) in an
amount equal to the applicable Reduction Amount, provided that each such
reduction of the Revolving Credit Facility shall be made ratably among the
Revolving Credit Lenders in accordance with their Revolving Credit Commitments.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at least
one Business Day's notice in the case of Base Rate Advances and three Business
Days' notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that (i) each partial prepayment shall be in an aggregate principal
amount of $1,000,000 or an integral multiple of $250,000 in excess thereof and
(ii) if any prepayment of a Eurodollar Rate Advance is made on a date other than
the last day of an Interest Period for such Advance, the Borrower shall also pay
any amounts owing pursuant to Section 9.04(c). Each such prepayment of Term
Advances shall be applied to the Term Facility to reduce in direct order the
next four scheduled amortization payments thereunder immediately following the
date of such prepayment unless and until such amortization payments have been
eliminated as a result of such reductions and, thereafter ratably to the
remaining amortization installments thereunder.
(b) Mandatory. (i) The Borrower shall, on the 90th day following the
end of each Fiscal Year, prepay an aggregate principal amount of the Advances in
an amount equal to, (A) at any time when the Total Leverage Ratio is greater
than or equal to 4.00:1.00, 75% of the amount of Excess Cash Flow for such
Fiscal Year, (B) at any time when the Total Leverage Ratio is greater than or
equal to 3.50:1.00 and less than 4.00:1.00, 50% of the amount of Excess Cash
Flow for such Fiscal Year, (C) at any time when the Total Leverage Ratio is
greater than or equal to 3.00:1.00 and less than 3.50:1.00, 25% of the amount of
Excess Cash Flow for such Fiscal Year and (D) at any time when the Total
Leverage Ratio is less than 3.00:1.00, 0% of the amount of Excess Cash Flow for
such Fiscal Year. Each such prepayment shall be applied first to the Term
Facility to reduce in direct order the next four scheduled amortization payments
thereunder immediately following the date of such prepayment unless and until
such amortization payments have been eliminated as a result of such reductions
and, thereafter ratably to the remaining amortization installments thereunder
and second to the Revolving Credit Facility as set forth below in clause (iv) of
this Section 2.06(b).
(ii) The Borrower shall, on the date of receipt of any Net Cash
Proceeds by any Loan Party or any of its Subsidiaries from (A) the sale, lease,
transfer or other disposition of any assets of any Loan Party or any of its
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clauses (i) through (viii) of Section 5.02(e)), (B) the
incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt
(other than Debt incurred or issued pursuant to Section 5.02(b)), (C) the
issuance of any class of equity, (D) any capital contribution and (E) any
Casualty Receipt received by or paid to or for the account of any Loan Party or
any of its Subsidiaries, prepay an aggregate principal amount of the Advances in
an amount equal to (x) 100% of the amount of such Net Cash Proceeds in the case
of clauses (A), (B) and (E), and (y) 50% of the amount of such Net Cash
Proceeds, in the case of clauses (C) and (D). Each such prepayment shall be
applied first to the Term Facility to reduce in direct order the next four
scheduled amortization payments thereunder immediately following the date of
such prepayment unless and until such amortization payments have been eliminated
as a result of such reductions and, thereafter ratably to the remaining
amortization installments thereunder and second to the Revolving Credit Facility
as set forth below in clause (iv) of this Section 2.06(b). No prepayment made
with Net Cash Proceeds received as a result of a transaction not permitted by
Section 5.02(b), (e) or (g)(i) shall be deemed either to cure any Default
resulting from a breach of Section 5.02(b), (e) or (g)(i) or to waive any Lender
Party's rights and remedies in connection therewith.
(iii) The Borrower shall prepay an aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances and the Swing Line
Advances on any Business Day in which (A) the sum of the aggregate principal
amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances
and (z) the Swing Line Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the Revolving
Credit Facility.
(iv) Prepayments of the Revolving Credit Facility made pursuant to
clause (i), (ii), or (iii) above shall be first applied to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full, second
applied to prepay Swing Line Advances then outstanding until such Advances are
paid in full, third applied to prepay Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full and
fourth deposited in the L/C Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding; and, in the case of
prepayments of the Revolving Credit Facility required pursuant to clause (i) or
(ii) above, the amount remaining (if any) after the prepayment in full of the
Advances then outstanding and the 100% cash collateralization of the aggregate
Available Amount of Letters of Credit then outstanding (the sum of such
prepayment amounts in respect of Revolving Credit Advances, Letter of Credit
Advances and Swing Line Advances, cash collateralization amounts and remaining
amount being referred to herein as the "REDUCTION AMOUNT") may be retained by
the Borrower and the Revolving Credit Facility shall be permanently reduced as
set forth in Section 2.05(b)(iv). Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Collateral Account, such funds shall be
applied to reimburse the Issuing Bank or Revolving Credit Lenders, as
applicable.
(v) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 9.04(c). If any
payment of Eurodollar Rate Advances otherwise required to be made under Section
2.06(b) would be made on a day other than the last day of the applicable
Interest Period therefor, the Borrower may direct the Administrative Agent to
(and if so directed, the Administrative Agent shall) deposit such payment in the
Collateral Account until the last day of the applicable Interest Period at which
time the Administrative Agent shall apply the amount of such payment to the
prepayment of such Advances; provided, however, that such Advances shall
continue to bear interest as set forth in Section 2.07 until the last day of the
applicable Interest Period therefor.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of a Default under Section 6.01(a) or 6.01(f), the Administrative Agent may, and
upon the request of the Required Lenders shall, require that the Borrower pay
interest ("DEFAULT INTEREST") on (i) the unpaid principal amount of each Advance
owing to each Lender Party, payable in arrears on the dates referred to in
clause (i) or (ii) of Section 2.07(a), as applicable, and on demand, at a rate
per annum equal at all times to 2% per annum plus the rate per annum required to
be paid on such Advance pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and (ii) to the fullest extent permitted by applicable law, the
amount of any interest, fee or other amount payable under this Agreement or any
other Loan Document to any Agent or any Lender Party that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum plus the rate per annum
required to be paid, in the case of interest, on the Type of Advance on which
such interest has accrued pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and, in all other cases, on Base Rate Advances pursuant to clause
(i) of Section 2.07(a); provided, however, that following the acceleration of
the Advances, or the giving of notice by the Agent to accelerate the Advances,
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Administrative Agent.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from and
including the Effective Date in the case of each Initial Lender and from and
including the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date, payable in arrears, quarterly on the last day of each March,
June, September and December, commencing March 31, 2006, and on the Termination
Date in respect of the Revolving Credit Facility, at a rate of 1/2 of 1% per
annum on the average daily Unused Revolving Credit Commitment of such Lender;
provided, however, that (A) outstanding Swing Line Advances shall not constitute
usage of the Revolving Credit Commitments for purposes of calculating the
foregoing and (B) no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing March 31, 2006, and on the Termination Date
in respect of the Letter of Credit Facility, on such Lender's Pro Rata Share of
the average daily aggregate Available Amount during such quarter of all Letters
of Credit at the Applicable Margin for Eurodollar Rate Advances under the
Revolving Credit Facility. Upon the occurrence and during the continuance of a
Default under Section 6.01(a) or 6.01(f), the amount of commission payable by
the Borrower under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its own account,
a fronting fee of 0.25% per annum on the Available Amount of all Letters of
Credit payable quarterly in arrears on the last day of each March, June,
September and December, commencing March 31, 2006 and such customary issuance
fees, transfer fees and other fees and charges in connection with the issuance
or administration of each Letter of Credit as the Borrower and the Issuing Bank
shall agree.
(c) Agents' Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00
A.M. (Charlotte, North Carolina time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections
2.10(c) or (d), Convert all or any portion of the Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that this Section 2.09(a) shall not apply to Swing Line Advances; and
provided further that any Conversion of Eurodollar Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(ii) Upon the occurrence and during the continuance of any Event of
Default, at the Administrative Agent's discretion, (A) each Eurodollar Rate
Advance will, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (B) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) imposed or made or becoming effective after the date
hereof, there shall be any increase in the cost to any Lender Party of agreeing
to make or of making, funding or maintaining Eurodollar Rate Advances or of
agreeing to issue or of issuing or maintaining or participating in Letters of
Credit or of agreeing to make or of making or maintaining Letter of Credit
Advances (excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that a Lender Party claiming additional
amounts under this Section 2.10(a) agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender
Party, be otherwise disadvantageous in any material respect to such Lender
Party. Failure or delay on the part of any Lender Party to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender Party's
right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender Party pursuant to this Section for any increased
costs incurred more than 180 days prior to the date that such Lender Party
notifies the Borrower of the event giving rise to such increased costs and of
such Lender Party's intention to claim compensation therefor; provided further
that, if the event giving rise to such increased costs is retroactive, then the
180-day period referred to above shall be extended to include the period of
retroactive effect thereof. A certificate as to the amount of such increased
cost, submitted to the Borrower by such Lender Party, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction or effectiveness of or any
change in or in the interpretation of any law or regulation after the date
hereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
imposed or made or becoming effective after the date hereof, there shall be any
increase in the amount of capital required or expected to be maintained by any
Lender Party or any corporation controlling such Lender Party as a result of or
based upon the existence of such Lender Party's commitment to lend or to issue
or participate in Letters of Credit hereunder and other commitments of such type
or the issuance or maintenance of or participation in the Letters of Credit (or
similar Guaranteed Debts), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party or such
corporation in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit; provided, however, that a Lender Party
claiming additional amounts under this Section 2.10(b) agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous in any material
respect to such Lender Party. Failure or delay on the part of any Lender Party
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender Party's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender Party pursuant to this
Section for any increased costs incurred more than 180 days prior to the date
that such Lender Party notifies the Borrower of the event giving rise to such
increase in capital and of such Lender Party's intention to claim compensation
therefor; provided further that if the event giving rise to such increase in
capital is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof. A certificate as
to such amounts submitted to the Borrower by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 51% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if, after
the date hereof, the introduction or effectiveness of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous in any material respect to such Lender.
(e) In the event that any Lender Party demands payment of costs or
additional amounts pursuant to Section 2.10 or Section 2.12 or asserts, pursuant
to Section 2.10(d), that it is unlawful for such Lender Party to make Eurodollar
Rate Advances or becomes a Defaulting Lender then the Borrower may, so long as
no Event of Default has occurred and is continuing and so long as such costs or
additional
amounts are more than those charged by other Lenders, upon at least 10 days'
prior written notice to such Lender Party and the Administrative Agent, elect to
cause such Lender Party to assign its Advances and Commitments in full to one or
more Persons selected by the Borrower so long as (i) each such Person satisfies
the criteria of an Eligible Assignee and in the case of any Lender with a
Revolving Credit Commitment, is reasonably satisfactory to the Administrative
Agent, (ii) such Lender Party receives payment in full in cash of the
outstanding principal amount of all Advances made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including, without limitation, amounts
owing pursuant to Sections 2.10, 2.12, 2.15 and 9.04) and (c) each such Lender
Party assignee agrees to accept such assignment and to assume all obligations of
such Lender Party hereunder in accordance with Section 9.07.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the other Loan Documents, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 12:00 Noon (Charlotte, North Carolina time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds, with payments being received by the Administrative Agent
after such time being deemed to have been received on the next succeeding
Business Day. The Administrative Agent will promptly thereafter cause like funds
to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the other Loan Documents to more than one Lender Party, to
such Lender Parties for the account of their respective Applicable Lending
Offices ratably in accordance with the amounts of such respective Obligations
then payable to such Lender Parties and (ii) if such payment by the Borrower is
in respect of any Obligation then payable hereunder to one Lender Party, to such
Lender Party for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 9.07(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the other Loan Documents in respect of the
interest assigned thereby to the Lender Party assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or under the other Loan Documents to charge from time to time
after the occurrence and during the continuance of an Event of Default, to the
fullest extent permitted by law, against any or all of the Borrower's accounts
with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on Wachovia's prime rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the other Loan Documents
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment or
letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent under
this Agreement, any of the other Loan Documents or any Secured Hedge Agreement
is insufficient to pay in full all amounts due and payable to the Agents, the
Lender Parties and the Hedge Banks under or in respect of this Agreement, the
other Loan Documents and the Secured Hedge Agreement on any date, such payment
shall be distributed by the Administrative Agent and applied by the Agents and
the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents (solely
in their respective capacities as Agents) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing Bank
and the Swing Line Bank (solely in their respective capacities as such)
under or in respect of this Agreement and the other Loan Documents on such
date, ratably based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Issuing Bank and
the Swing Line Bank on such date;
(iii) third, to the payment of all of the indemnification payments,
costs and expenses that are due and payable to the Lenders under Sections
9.04 hereof, Section 23 of the Security Agreement and any similar section
of any of the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification payments, costs
and expenses owing to the Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lender Parties under Sections
2.10 and 2.12 on such date, ratably based upon the respective aggregate
amounts thereof owing to the Administrative Agent and the Lender Parties on
such date;
(v) fifth, to the payment of all of the fees that are due and payable
to the Lenders under Section 2.08(a) on such date, ratably based upon the
respective aggregate Commitments of the Lenders under the Facilities on
such date;
(vi) sixth, to the payment of all of the accrued and unpaid interest
on the Obligations of the Borrower under or in respect of the Loan
Documents that is due and payable to the
Administrative Agent and the Lender Parties under Section 2.07(b) on such
date, ratably based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on such
date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.07(a) on such date, ratably
based upon the respective aggregate amounts of all such interest owing to
the Administrative Agent and the Lender Parties on such date;
(viii) eighth, ratably to (A) the payment of the principal amount of
all of the outstanding Advances that is due and payable to the
Administrative Agent and the Lender Parties on such date, ratably based
upon the respective aggregate amounts of all such principal owing to the
Administrative Agent and the Lender Parties on such date and (B) the
payment of all amounts due and payable under each Secured Hedge Agreement
ratably; and
(ix) ninth, to the payment of all other Obligations of the Loan
Parties owing under or in respect of the Loan Documents that are due and
payable to the Administrative Agent and the other Secured Parties on such
date, ratably based upon the respective aggregate amounts of all such
Obligations owing to the Administrative Agent and the other Secured Parties
on such date.
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lender Parties in accordance with such Lender Party's Pro Rata Share of
the sum of (A) the aggregate principal amount of all Advances outstanding at
such time and (B) the aggregate Available Amount of all Letters of Credit
outstanding at such time, in repayment or prepayment of such of the outstanding
Advances or other Obligations then owing to such Lender Party, and, in the case
of the Term Facility, for application to such principal repayment installments
thereof, as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party to or for
the account of any Lender Party or any Agent hereunder or under the Notes or any
other Loan Document shall be made, in accordance with Section 2.11 or the
applicable provisions of such other Loan Document, if any, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, (i) in the case of each Lender Party and each Agent, taxes that are
imposed on (or measured by) its overall net income by the United States and
taxes that are imposed on (or measured by) its overall net income (including
franchise taxes in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or such Agent, as the case may be, is organized
or in which its principal office is located or any political subdivision thereof
and, in the case of each Lender Party, taxes that are imposed on (or measured
by) its overall net income (including franchise taxes in lieu thereof) by the
state or foreign jurisdiction of such Lender Party's Applicable Lending Office
or any political subdivision thereof and (ii) any branch profits taxes imposed
by the United States (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
any other Loan Document being hereinafter referred to as "TAXES"). If any Loan
Party shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note or any other Loan Document to any Lender
Party or any Agent, (i) the sum payable by such Loan Party shall be increased as
may be necessary so that after such Loan Party and the Administrative Agent have
made all required deductions (including deductions applicable to additional sums
payable under this Section 2.12) such Lender Party or such Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such
Loan Party shall make all such deductions and (iii) such Loan Party shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, each Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made by such Loan Party
hereunder or under any Notes or any other Loan Documents or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Notes or the other Loan Documents (hereinafter referred to
as "OTHER TAXES").
(c) The Loan Parties shall indemnify each Lender Party and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes
imposed on or paid by such Lender Party or such Agent (as the case may be) and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Lender Party or such Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or
the other Loan Documents by or on behalf of a Loan Party through an account or
branch outside the United States or by or on behalf of a Loan Party by a payor
that is not a United States person, if such Loan Party determines that no Taxes
are payable in respect thereof, such Loan Party shall furnish, or shall cause
such payor to furnish, to the Administrative Agent, at such address, an opinion
of counsel acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 2.12,
the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender Party and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party in the case of each other Lender Party, and from time to time thereafter
as reasonably requested in writing by the Borrower (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two original Internal Revenue Service
Forms W-8BEN or W-8ECI (or in the case of a Lender Party that has certified in
writing to the Administrative Agent that it is not (i) a "bank" as defined in
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any
Loan Party or (iii) a controlled foreign corporation related to any Loan Party
(within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal
Revenue Service Form W-8BEN), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or any other Loan Document or,
in the case of a Lender Party that has certified that it is not a "bank" as
described above, certifying that such Lender Party is a foreign corporation,
partnership, estate or trust. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement (or designates a
new lending office) indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service Form W-8BEN or W-8ECI or the related certificate
described above, that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party required to do
so has failed to provide the Borrower with the appropriate form, certificate or
other document described in subsection (e) above (other than if such failure is
due to a change in law, or in the interpretation or application thereof,
occurring after the date on which a form, certificate or other document
originally was required to be provided or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
Party shall not be entitled to indemnification under subsection (a) or (c) of
this Section 2.12 with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a Lender Party become subject to
Taxes because of its failure to deliver a form, certificate or other document
required to be delivered by it hereunder, the Loan Parties shall take such steps
as such Lender Party shall reasonably request to assist such Lender Party to
recover such Taxes.
(g) If any Lender Party or the Administrative Agent receives a refund
in respect of any amounts paid by the Borrower pursuant to this Section 2.12,
which refund in the sole discretion of such Lender Party or the Administrative
Agent is allocable to such payment, it shall promptly notify the Borrower of
such refund and shall, within 15 days after receipt, repay such refund to the
Borrower net of all out-of-pocket expenses of such Lender Party or the
Administrative Agent; provided, however, that the Borrower, upon the request of
such Lender Party or the Administrative Agent, agrees to repay the amount paid
over to the Borrower to such Lender Party or the Administrative Agent in the
event such Lender Party or the Administrative Agent is required to repay such
refund.
(h) Any Lender Party claiming any additional amounts payable pursuant
to this Section 2.12 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous in any material respect to such
Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes and the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes and the other Loan Documents at such time)
of payments on account of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time obtained by all the Lender Parties at
such time or (b) on account of Obligations owing (but not due and payable) to
such Lender Party hereunder and under the Notes and the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes and the other Loan Documents at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender
Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an
interest or participating interest from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such interest
or participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and issuances
of Letters of Credit shall be available (and the Borrower agrees that it shall
use such proceeds and Letters of Credit) solely to pay a portion of the purchase
price in connection with the Acquisition, pay related fees and expenses and to
finance the ongoing working capital and other general corporate purposes
(including, without limitation, capital expenditures and acquisitions permitted
hereunder) of the Borrower after consummation of the Acquisition.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, so long as no
Default shall have occurred or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower
pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank and the Swing Line Bank for any
Defaulted Amounts then owing to them, in their capacities as such, ratably
in accordance with such respective Defaulted Amounts then owing to the
Issuing Bank and the Swing Line Bank; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such Agent or such other Lender Party shall pay such amount
to the Administrative Agent to be held by the Administrative Agent, to the
fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with a bank (the "ESCROW BANK") selected by the Administrative
Agent, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be the Escrow Bank's standard
terms applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent or any
other Lender Party, as and when such Advances or amounts are required to be made
or paid and, if the amount so held in escrow shall at any time be insufficient
to make and pay all such Advances and amounts required to be made or paid at
such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by such
Defaulting Lender to them hereunder, in their capacities as such, ratably
in accordance with such respective amounts then due and payable to the
Agents;
(ii) second, to the Issuing Bank and the Swing Line Bank for any
Defaulted Amounts then owing to them, in their capacities as such, ratably
in accordance with such respective Defaulted Amounts then owing to the
Issuing Bank and the Swing Line Bank;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender Party resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender Party from time to time hereunder.
The Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Revolving Credit Note and a Term Note, as
applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment and the Term Commitment, respectively,
of such Lender Party. All references to Notes in the Loan Documents shall mean
Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Incremental Facilities. (a) The Borrower may, at any time
after the Effective Date but prior to the Termination Date in respect of the
applicable Facility, by written notice to the Administrative Agent, request an
increase in the Revolving Credit Facility or the Term Facility (each such
facility increase being a "FACILITY INCREASE") in an aggregate principal amount
not to exceed $75,000,000 for all Facility Increases, each of which to be
effective as of a date that is at least 90 days prior to the scheduled
Termination Date then in effect in respect of the applicable Facility (for each
such Facility Increase, the "INCREASE DATE") as specified in the related notice
to the Administrative Agent; provided, however, that (i) in no event shall any
Facility Increase be in a principal amount of less than $15,000,000 (or such
lesser amount as shall be approved by the Administrative Agent) nor shall the
aggregate amount of all Facility Increases exceed $75,000,000; (ii) there shall
be no more than four (4) Facility Increases (or such greater number as shall be
approved by the Administrative Agent); (iii) on the Increase Date, the
applicable conditions set forth in Section 3.02 and in clause (d) of this
Section 2.17 shall be satisfied; (iv) on the Increase Date, after giving pro
forma effect to such Facility Increase, the Borrower shall be in pro forma
compliance with all financial covenants set forth in Section 5.04; (v) on the
Increase Date, after giving pro forma effect to such Facility Increase, no
Default shall have occurred and be continuing; (vi) any Facility Increase shall
have a termination date that is no earlier than the Termination Date in respect
of the applicable Facility (but may have nominal amortization prior to such
Termination Date so long as the Weighted Average Life to Maturity of such
increase is no shorter than the weighted average life to maturity of the
then-remaining Advances under the applicable Facility); (vii) any Facility
Increase will accrue interest at rates determined by the Borrower and the
lenders providing such Facility Increase, which rates may be higher or lower
than the rates applicable to the Revolving Credit or Term Advances, as
applicable, (provided that if the Applicable Margin (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Facility Increase) relating to
any Facility Increase exceeds the Applicable Margin (which, for such purposes
only, shall be deemed to include all upfront or similar fees or original issue
discount payable to all Revolving Credit or Term Advances, as applicable)
relating to the Revolving Credit or Term Advances, as applicable, by more than
0.25%, the Applicable Margin relating to the applicable Advances shall be
adjusted to be equal to the Applicable Margin (which, for such purposes only,
shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Facility Increase) relating to
such Facility Increase minus 0.25%); (viii) except as set forth in clause (vi)
or (vii) above, any Facility Increase shall be on terms identical to the
existing applicable Facility; (ix) the existing Lenders shall initially have the
right, but not the obligation, to commit to up to their Pro Rata Share (or, if
consented to by the Borrower and the Administrative Agent to cover declines by
other Lenders, more than
their Pro Rata Share) of a Facility Increase ratably based on the applicable
Term Commitments of the Term Lenders and Revolving Credit Commitments of the
Revolving Credit Lenders; and (x) notwithstanding any other provision of any
Loan Document (including, without limitation, Section 9.01), the Loan Documents
may be amended by the Administrative Agent and the Borrower, if necessary,
without the consent of any Lender), to provide for terms applicable to each
Facility Increase consistent with the terms hereof.
(b) The Administrative Agent shall promptly notify the Term Lenders or
Revolving Credit Lenders, as applicable, of a request by the Borrower for a
Facility Increase in respect of the Term Facility or Revolving Credit Facility,
which notice shall include (i) the proposed amount of such requested Facility
Increase, (ii) the proposed Increase Date and (iii) the date by which the
Lenders wishing to participate in such Facility Increase must commit to an
increase in the amount of their respective Commitments (the "COMMITMENT DATE").
Each Term Lender or Revolving Credit Lender, as appropriate, that is willing to
participate in the requested Facility Increase (each an "INCREASING LENDER")
shall, in its sole discretion, give written notice to the Administrative Agent
on or prior to the Commitment Date of the amount by which it is willing to
increase its applicable Commitment. If the Increasing Lenders notify the
Administrative Agent that they are willing to participate in a Facility Increase
by an aggregate amount that exceeds the amount of the requested Facility
Increase, the requested Facility Increase shall be allocated among the
Increasing Lenders in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following the applicable Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Increasing Lenders are willing to participate in the requested
Facility Increase. If the aggregate amount by which the Increasing Lenders are
willing to participate in the requested Facility Increase on any such Commitment
Date is less than the requested Facility Increase, then the Borrower may extend
offers to one or more Eligible Assignees to participate in any portion of the
requested Facility Increase that has not been committed to by the Increasing
Lenders as of the Commitment Date.
(d) On the applicable Increase Date, each Eligible Assignee that
accepts an offer to participate in a requested Facility Increase in accordance
with Section 2.17(c) (each such Eligible Assignee, an "ASSUMING LENDER") shall
become a Lender party to this Agreement as of the applicable Increase Date and
the Commitment of each Increasing Lender for such Facility Increase shall be so
increased by the amount by which such Increasing Lender is willing to increase
its applicable commitment (or by the amount allocated to such Lender pursuant to
the last sentence of Section 2.17(b)) as of such Increase Date; provided,
however, that the Administrative Agent shall have received on or before the
Increase Date the following, each dated such date:
(i) certified copies of resolutions of the Board of Directors (or
other analogous governing body) of the Borrower approving the applicable
Facility Increase and the corresponding modifications to this Agreement and
an opinion of counsel for the Borrower (which may be in-house counsel),
addressing the due execution, authorization, delivery and enforceability of
the documents evidencing such Facility Increase and the absence of any
violation of constitutive documents or of applicable law or material
contracts binding upon the Borrower, in a form reasonably satisfactory to
the Administrative Agent;
(ii) an assumption agreement from each Assuming Lender, if any, in
form and substance satisfactory to the Borrower and the Administrative
Agent (each an "ASSUMPTION AGREEMENT"), duly executed by such Assuming
Lender, the Administrative Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Administrative Agent.
On the applicable Increase Date, upon fulfillment of the conditions set forth in
the immediately preceding sentence of this Section 2.17(d), the Administrative
Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) and the Borrower, on or before 11:00 A.M. (Charlotte, North Carolina
time), by telecopier, of the occurrence of the applicable Facility Increase to
be effected on the related Increase Date and shall record in the Register the
relevant information with respect to each Increasing Lender and each Assuming
Lender on such date.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit (and Article II of this
Agreement shall become effective on and as of the first date (the "EFFECTIVE
DATE") on which such conditions precedent have been satisfied):
(a) The Administrative Agent and the Arranger shall have received on
or before the day of the Initial Extension of Credit the following, each
dated such day (or such other day as reasonably acceptable to the
Administrative Agent) in form and substance reasonably satisfactory to the
Administrative Agent and (except for the Notes) in sufficient copies for
each Lender Party:
(i) a counterpart to this agreement duly executed by a
Responsible Officer of each Loan Party.
(ii) The Notes payable to the order of the Lenders to the extent
requested by the Lenders pursuant to the terms of Section 2.16.
(iii) A security agreement in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j) or
otherwise, in each case as amended, the "SECURITY AGREEMENT"), duly
executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank,
(B) financing statements in form appropriate for filing
under the Uniform Commercial Code of all jurisdictions necessary
in order to perfect the first priority liens and security
interests created under the Security Agreement, covering the
Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all
effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any of the Loan Parties
as debtor, together with copies of such other financing
statements, all as reasonably satisfactory to the Administrative
Agent,
(D) the Intellectual Property Security Agreement duly
executed by each Loan Party, and
(E) evidence that all other action that the Administrative
Agent may deem reasonably necessary in order to perfect the first
priority liens and security interests created under the Security
Agreement has been taken (including, without limitation, receipt
of duly executed payoff letters and UCC-3 termination
statements).
(iv) Deeds of trust, trust deeds and mortgages in form and
substance reasonably satisfactory to the Borrower and the
Administrative Agent and its counsel and covering the Owned Real
Properties (together with the Assignments of Leases and Rents referred
to therein and each other mortgage delivered pursuant to Section
5.01(j), in each case as amended, the "MORTGAGES"), duly executed by
the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been
either (x) duly recorded on or before the day of the Initial
Extension of Credit or (y) duly executed, acknowledged and
delivered in form suitable for filing or recording in all filing
or recording offices that the Administrative Agent may deem
reasonably necessary in order to create a valid first and
subsisting Lien on the property described therein in favor of the
Collateral Agent for the benefit of the Secured Parties and that
all filing and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "MORTGAGE
POLICIES") in form and substance, with endorsements and in amount
acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers acceptable to the Administrative
Agent, insuring the Mortgages to be valid first and subsisting
Liens on the property described therein, free and clear of all
defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative insurance
(including endorsements for future advances under the Loan
Documents and for mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the Administrative
Agent may deem necessary or desirable,
(C) American Land Title Association form surveys, dated no
more than 30 days before the day of the Initial Extension of
Credit, certified to the Administrative Agent and the issuer of
the Mortgage Policies in a manner satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects acceptable to the
Administrative Agent,
(D) engineering, soils and other reports as to the
properties described in the Mortgages as may be requested by the
Administrative Agent, in form and substance and from professional
firms acceptable to the Administrative Agent,
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may deem necessary or desirable,
(F) evidence of the insurance required by the terms of the
Mortgages,
(G) Favorable opinions of local counsel for the Loan Parties
(i) in states in which the Owned Real Properties are located,
with respect to the enforceability and perfection of the
Mortgages and any related fixture filings, in form and substance
satisfactory to the Administrative Agent and the Borrower and
(ii) in states in which the Loan Parties party to the Mortgages
are organized or formed, with respect to the valid existence,
corporate power and authority of such Loan Parties in the
granting of the Mortgages, in form and substance satisfactory to
the Administrative Agent and the Borrower, and
(H) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to create valid
first and subsisting Liens on the property described in the
Mortgages has been taken.
(v) Certified copies of (A) the resolutions of the Board of
Directors of each Loan Party approving the Transaction and each
Transaction Document to which it is or is to be a party as in full
force and effect on, and without amendment or modification as of, the
date of the Initial Extension of Credit, and of all documents
evidencing other necessary corporate action, if any, with respect to
the Transaction and each Transaction Document to which it is or is to
be a party, (B) all documents evidencing (1) any governmental
approvals and consents with respect to the Loan Documents and the
Second Lien Term Loan Facility and the transactions contemplated
therein and (2) any material governmental approvals and consents with
respect to the Acquisition and the Purchase Agreement and (C) other
material third party approvals and consents, if any, with respect to
the Transaction and each Transaction Document to which it is or is to
be a party.
(vi) A copy of the charter of each Loan Party certified by, and a
copy of the good standing certificate in respect of such Loan Party
issued by, the Secretary of State of the jurisdiction of
incorporation, formation or organization of each Loan Party, dated
reasonably near the date of the Initial Extension of Credit.
(vii) A certificate of each Loan Party, signed on behalf of such
Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter of such Loan Party
since the date of the Secretary of State's certificate referred to in
Section 3.01(a)(vi), (B) a true and correct copy of the bylaws,
limited partnership agreement or limited liability company agreement,
as applicable, of such Loan Party as in effect on the date on which
the resolutions referred to in Section 3.01(a)(v) were adopted and on
the date of the Initial
Extension of Credit, (C) the due incorporation, formation or
organization and good standing or valid existence of such Loan Party
as a corporation, limited partnership or limited liability company
incorporated, formed or organized under the laws of the jurisdiction
of its incorporation, formation or organization, and the absence of
any proceeding for the dissolution or liquidation of such Loan Party,
(D) the accuracy in all material respects of the representations and
warranties contained in the Loan Documents as though made on and as of
the date of the Initial Extension of Credit and (E) the absence of any
event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents to
be delivered hereunder and thereunder.
(ix) Certified copies of each of the Related Documents (including
all schedules and exhibits thereto), duly executed by the parties
thereto (it being acknowledged that the Purchase Agreement executed
and delivered on September 15, 2005 is satisfactory to the
Administrative Agent), together with all material agreements,
instruments and other documents delivered in connection therewith as
the Arranger shall reasonably request.
(x) A certificate in substantially the form of Exhibit F hereto,
attesting to the Solvency of the Loan Parties, before and after giving
effect to the Transaction, from the Borrower's Chief Financial
Officer.
(xi) The Intercreditor Agreement, in substantially the form of
Exhibit G hereto, duly executed by each party thereto and acknowledged
by each Loan Party.
(xii) Evidence of the Loan Parties' insurance coverage reasonably
satisfactory to the Administrative Agent, demonstrating that the Loan
Parties' existing insurance coverage remains in effect, together with
endorsements naming the Administrative Agent, on behalf of the
Lenders, as an additional insured or loss payee, as the case may be,
and a broker's letter reasonably satisfactory to the Administrative
Agent, dated the Effective Date, to the effect that such coverage is
customary and reasonable when compared to the insurance coverage
purchased by similarly situated companies and that such coverage
complies with the requirements of this Agreement and the Collateral
Documents.
(xiii) (A) Audited consolidated financial statements of (1) the
Borrower and its Subsidiaries for the twelve-month period ended
December 31, 2002, the twelve-month period ended December 31, 2003,
and the twelve-month period ended December 31, 2004 and (2) the
Company and its Subsidiaries for the twelve-month period ended June
30, 2003, the twelve-month period ended June 30, 2004 and the
twelve-month period ended June 30, 2005, in each case (x) audited by a
nationally recognized independent accounting firm and (y) without any
"going concern" or similar qualification, (B) unaudited consolidated
financial statements of (1) the Borrower and its Subsidiaries, and (2)
the Company and its Subsidiaries for any subsequent quarterly periods
ended at least forty-five (45) days prior to the Effective Date
(including, in any event, the restated consolidated balance sheet of
the Company and its Subsidiaries as at December 31, 2005, and the
related restated consolidated statement of income and restated
consolidated
statement of cash flows of the Company and its Subsidiaries for the
six months then ended); (C) a management forecast (including a
reasonably detailed statement of the underlying assumptions) of
balance sheets, income statements and cash flow statements on a
quarterly basis from the Effective Date through December 31, 2006 and
on an annual basis for each year thereafter until all Facilities
hereunder have terminated, in each case, for the Borrower and its
Subsidiaries (after giving effect to the Transaction); and (D) a pro
forma balance sheet of the Borrower and its Subsidiaries (after giving
effect to the Transaction) as of the end of the most recent fiscal
quarter for which financial statements have been furnished pursuant to
the preceding clause (A) or (B); none of which financial statements,
information and forecasts furnished pursuant to any of the foregoing
shall be materially inconsistent with any financial statements,
information or forecasts previously provided to the Arranger.
(xiv) a certificate from the chief financial officer of the
Borrower certifying and setting forth the following calculations in
reasonable detail: (A) after giving pro forma effect to the
Transaction and the Initial Extension of Credit, the pro forma EBITDA
(calculated on a combined basis for the Borrower and its Subsidiaries
and the Company and its Subsidiaries for the twelve-month period ended
as of December 31, 2005, subject to such adjustments as are reasonably
satisfactory to the Administrative Agent) shall be at least $110.0
million; and (B) the ratio (as of the Effective Date, after giving
effect to the Transaction and the Initial Extension of Credit) of the
Consolidated total Debt of the Borrower and its Subsidiaries to such
pro forma EBITDA shall not exceed 4.75:1.00.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable,
relating to the Initial Extension of Credit.
(xvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Loan Parties, in substantially the form of Exhibit H
hereto.
(xvii) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, local
counsel for the Loan Parties, in substantially the form of Exhibit I
hereto and as to such other matters as the Administrative Agent may
reasonably request.
(b) The Administrative Agent shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in
full or otherwise satisfied and extinguished and all commitments, security
interests and guaranties relating thereto terminated.
(c) All material Governmental Authorizations and all shareholder,
board of director, and material third party consents and approvals
necessary in connection with the Transaction and the continued operation of
the business of the Loan Parties, after giving effect to the Transaction,
shall have been obtained (without the imposition of any conditions that are
not acceptable to the Administrative Agent) and shall remain in effect. No
law or regulation shall be applicable in the judgment of the Administrative
Agent, in each case that restrains, prevents or imposes materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them
(d) There shall exist no action, suit, investigation, litigation or
proceeding involving any Loan Party or any of its Subsidiaries pending or
threatened before any Governmental Authority that (i) could reasonably be
expected to have a Material Adverse Effect other than the
matters described on Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION"),
(ii) would reasonably be expected to restrain, prevent, or impose
materially adverse conditions on the Transaction or any element thereof or
(iii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and there
shall have been no adverse change in the status of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(e) The Borrower shall have paid all fees of the Agents and the Lender
Parties and all expenses of the Agents (including the accrued fees and
expenses of counsel to the Administrative Agent and the Arranger and local
counsel to the Lender Parties) which are due and payable on or prior to the
Effective Date and for which invoices have been received.
(f) Each of the parties to the Transaction Documents shall have
complied in all material respects with all covenants set forth therein to
be complied with by it on or prior to the date of the consummation of the
applicable Transaction, without any waiver or amendment adverse to the
Lenders not consented to by the Administrative Agent of any term, provision
or condition set forth therein, and in compliance with all applicable laws.
(g) The terms and conditions of the Transaction (including any
material agreements, instruments and documents relating thereto) and the
pro forma capital and organizational structure of the Loan Parties shall be
consistent with all information provided to the Administrative Agent prior
to September 15, 2005, including the estimated sources and uses of funds,
and otherwise reasonably satisfactory to the Administrative Agent in all
material respects.
(h) The Borrower shall have made the Excess Cash Investment and the
Debt Proceeds Investment, and AcquisitionCo shall have received $480.0
million in cash from the Equity Investment by the Borrower.
(i) The Borrower shall have received not less than $60,000,000 in
proceeds from advances under the Second Lien Term Loan Facility.
(j) Each of the Facilities shall have been rated by Standard & Poor's
and by ▇▇▇▇▇'▇ prior to the Effective Date and the results of such ratings
shall have been provided to the Administrative Agent.
(k) There shall have been no Material Adverse Change since June 30,
2005.
(l) The Administrative Agent shall have received such other approvals,
opinions or documents as the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit and the right of the Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that:
(a) On the date of such Borrowing or issuance or renewal the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Borrower of the proceeds
of such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the Borrower that both
on the date of such notice and on the date of such Borrowing or issuance or
renewal such statements are true):
(i) the representations and warranties contained in each Loan Document
are true and correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal and
to the application of the proceeds therefrom, as though made on and as of
such date, other than any such representations or warranties that, by their
express terms, refer to a specific date other than the date of such
Borrowing or issuance or renewal, in which case such representations and
warranties shall be true and correct in all material respects as of such
specific date; and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom.
(b) The Administrative Agent shall have received the applicable Notice
of Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal as described in paragraph (a) of this Section 3.02.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each Loan
Party represents and warrants as follows:
(a) Each Loan Party, and each of its Subsidiaries, (i) is a
corporation, limited partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, formation or organization, (ii) is duly
qualified and in good standing as a foreign corporation or company in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed could not be reasonably
likely to have a Material Adverse Effect and (iii) has all requisite
corporate, limited liability company or partnership (as applicable) power
and authority (including, without limitation, all Governmental
Authorizations) to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted except where
the failure to do so could not be reasonably likely to have a Material
Adverse Effect. All of the outstanding Equity Interests in the Borrower
have been validly issued, are fully paid and non-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation,
formation or organization, the number of shares, membership
interests or limited partnership interests (as applicable) of each class of
its Equity Interests authorized, and the number outstanding, on the date
hereof and the percentage of each such class of its Equity Interests owned
(directly or indirectly) by such Loan Party and the number of shares, units
or partnership interests covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the date hereof. All
of the outstanding Equity Interests in each Loan Party's Subsidiaries have
been validly issued, are fully paid and non-assessable and are owned by
such Loan Party or one or more of its Subsidiaries free and clear of all
Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan Party of each
Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's corporate,
limited liability company or limited partnership (as applicable) powers,
have been duly authorized by all necessary corporate, limited liability
company or limited partnership (as applicable) action, and do not (i)
contravene such Loan Party's charter, bylaws, limited liability company
agreement, partnership agreement or other constituent documents, (ii)
violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award, (iii)
conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any loan agreement, indenture,
mortgage, deed of trust, material lease or other material contract or
material instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents and the Second Lien Term Loan Facility,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of
(x) the Patriot Act, or (y) any other law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any
such contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No Governmental Authorization, and no notice to or filing with any
Governmental Authority or any other third party, is required for (i) the
due execution, delivery, or performance by any Loan Party of any
Transaction Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof), or (iv) to the
knowledge of such Loan Party, the exercise by any Agent or any Lender Party
of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings which have been
duly obtained, taken, given or made and are in full force and effect and
filings necessary to perfect and maintain the Liens created under the
Collateral Documents. As of the Effective Date, all applicable waiting
periods in connection with the Transaction have expired (or received early
termination) without any materially adverse action having been taken by any
competent authority restraining, preventing or imposing materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them. The
Acquisition has been consummated in accordance with the terms of the
Transaction Documents, except to the extent any provision thereof has been
waived or amended with the consent of the Administrative Agent, and in
compliance with all applicable laws.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This
Agreement is, and each other Loan Document when delivered hereunder will
be, the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its terms,
except as such enforceability may be subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the knowledge of the Borrower,
threatened before any Governmental Authority or arbitrator that (i) could
reasonably be expected to have a Material Adverse Effect (other than the
Disclosed Litigation) or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transaction, and there has been no material adverse change in the status of
the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2004, and the Consolidated statement of
income and Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an unqualified
opinion of PricewaterhouseCoopers, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2005, and the related Consolidated statement of income and
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the twelve months then ended, duly certified by the Chief Financial
Officer of the Borrower, copies of which have been furnished to the
Administrative Agent, fairly present in all material respects the
Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of operations of the Borrower and
its Subsidiaries for the periods ended on such dates, all in accordance
with GAAP applied on a consistent basis, and since December 31, 2004, there
has been no event, development or occurrence that could reasonably be
expected to have a Material Adverse Effect.
(ii) The restated Consolidated balance sheet of the Company and its
Subsidiaries as at June 30, 2005, and the related restated Consolidated
statement of income and restated Consolidated statement of cash flows of
the Company and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of PricewaterhouseCoopers,
independent public accountants, copies of which have been furnished to the
Administrative Agent for the benefit of each Lender Party, fairly present
in all material respects the Consolidated financial condition of the
Company and its Subsidiaries as at such date and the Consolidated results
of operations of the Company and its Subsidiaries for the period ended on
such date, all in accordance with GAAP applied on a consistent basis.
(iii) The restated Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2005, and the related restated Consolidated
statement of income and restated Consolidated statement of cash flows of
the Company and its Subsidiaries for the six months then ended, copies of
which have been furnished to the Administrative Agent for the benefit of
each Lender Party, fairly present in all material respects the Consolidated
financial condition of the Company and its Subsidiaries as at such date and
the Consolidated results of operations of the Company and its Subsidiaries
for the period ended on such date, to the best of the Borrower's knowledge,
all in accordance with generally accepted accounting principles applied on
a consistent basis, subject to normal year-end adjustments and the absence
of footnotes.
(h) The Consolidated pro forma balance sheet of the Borrower and its
Subsidiaries as at December 31, 2005 previously furnished to the Agents and
to the Lenders, (i) has been prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements included in
the Information Memorandum (which assumptions the Borrower believed to be
reasonable at the time made available to the Lenders and the Borrower
believes to be reasonable as of the Effective Date), (ii) subject to the
assumptions and qualifications described in the Information Memorandum,
accurately reflects all adjustments necessary to give effect to the
Transaction, and (iii) fairly presents in all material respects the pro
forma financial condition of the Borrower and its Subsidiaries as at
December 31, 2005 as if the Transaction had occurred on such date.
(i) Neither the Information Memorandum (as it may have been modified
or supplemented in writing furnished to the Lenders prior to the Effective
Date) nor any other written information, exhibit or report (other than
projections and forecasts) furnished by or on behalf of any Loan Party to
any Agent or any Lender Party in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made therein not
materially misleading in light of the circumstances in which they were
made, and all projections and forecasts furnished by or on behalf of any
Loan Party to any Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the terms
of the Loan Documents were prepared in good faith based upon assumptions
believed by such Loan Party to be reasonable at the time they were made.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used, directly
or indirectly, to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", as defined in the Investment Company Act of 1940, as
amended. Neither any Loan Party nor any of its Subsidiaries is a "holding
company", as defined in the Public Utility Holding Company Act of 1935, as
amended.
(l) Each of the Loan Parties and its Subsidiaries has title in fee
simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its
other material property necessary for the conduct of its business, and none
of such material property is subject to any Lien except as permitted by
Section 5.02(a).
(m) All filings and other actions reasonably necessary to perfect the
security interest in the Collateral created under the Collateral Documents
have been duly made or taken and are in full force and effect, and the
Collateral Documents create in favor of the Collateral Agent for the
benefit of the Secured Parties a valid and, together with such filings and
other actions, perfected first priority security interest in the
Collateral, securing the payment of the Secured Obligations. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.
(n) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(o) (i) No ERISA Event has occurred or is reasonably likely to occur
with respect to any Plan where such ERISA Event would have a Material
Adverse Effect.
(ii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status of such Plan
in all material respects.
(iii) Neither any Loan Party nor any ERISA Affiliate has incurred or
is reasonably likely to incur any Withdrawal Liability to any Multiemployer
Plan where such Withdrawal Liability would have a Material Adverse Effect.
(iv) Where such reorganization or termination would have a Material
Adverse Effect, neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(v) With respect to each employee benefit arrangement mandated by
non-U.S. law (a "FOREIGN BENEFIT ARRANGEMENT") and with respect to each
employee benefit plan maintained or contributed to by any Loan Party or any
Subsidiary of any Loan Party that is not subject to United States law (a
"FOREIGN PLAN"), except where individually or in the aggregate, the
liability that is reasonably likely to result therefrom would not have a
Material Adverse Effect:
(A) Any employer and employee contributions required by law or by
the terms of any Foreign Benefit Arrangement or any Foreign Plan have
been made, or, if applicable, accrued, in accordance with normal
accounting practices.
(B) The fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign
Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date
hereof, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations
most recently used to account for such obligations in accordance with
applicable generally accepted accounting principles.
(C) Each Foreign Plan that is required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities.
(p) Except as would not reasonably be expected (whether individually
or in the aggregate) to result in a Material Adverse Effect: (i) The
operations and properties of each Loan Party and each of its Subsidiaries
comply in all respects with all applicable Environmental Laws and
Environmental Permits, all past non-compliance with such Environmental Laws
and Environmental Permits has been resolved without ongoing obligations or
costs, and no circumstances exist that would be reasonably likely to (A)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of their properties or (B) cause any such property
to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(ii) None of the properties currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries is listed or, to the knowledge of
the Borrower, proposed for listing on the NPL or on the CERCLIS or any
analogous foreign, state or local list or is adjacent to any such property;
there are no and, to the knowledge of the Borrower, never have been any
underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been
treated, stored or disposed on any property currently owned or operated by
any Loan Party or any of its Subsidiaries or, to the Borrower's knowledge,
on any property formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no friable asbestos or friable asbestos-containing
material on any property currently owned or operated by any Loan Party or
any of its Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries.
(iii) Except as otherwise set forth on Schedule 4.01(p) hereto,
neither any Loan Party nor any of its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law; and all Hazardous
Materials generated, used, treated, handled or stored at, or transported to
or from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to any Loan Party or
any of its Subsidiaries.
(q) (i) As of the Effective Date, neither any Loan Party nor any of
its Subsidiaries is party to any tax sharing agreement.
(ii) Each Loan Party, and each of its Subsidiaries and Affiliates, has
filed or caused to be filed all tax returns (Federal, state, local and
foreign) required to be filed and has paid or caused to be paid all taxes
required to be shown thereon to be due, except (A) taxes that are being
contested in good faith by appropriate proceedings and for which such Loan
Party or such Subsidiary, as applicable, has set aside on its books any
reserves required by GAAP or (B) to the extent the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.
(r) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not covered
by insurance) that could be reasonably likely to have a Material Adverse
Effect.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list, as of the Effective Date, of all Existing Debt (other than Surviving
Debt), showing as of the date hereof the obligor and the principal amount
outstanding thereunder.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list, as of the Effective Date, of all Surviving Debt, showing as of the
date hereof the obligor and the principal amount outstanding thereunder,
the maturity date thereof and the amortization schedule therefor.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list, as of the Effective Date, of all Liens on the property or assets of
any Loan Party or any of its Subsidiaries, showing as of the date hereof
the lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such Subsidiary
subject thereto.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list, as of the Effective Date, of all real property owned by any Loan
Party or any of its Subsidiaries ("OWNED REAL PROPERTY"), showing as of the
date hereof the street address, county or other relevant
jurisdiction, state, record owner and book and estimated fair value
thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list, as of the Effective Date, of all patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing as of the
date hereof the jurisdiction in which it is registered, the registration
number, the date of registration and the expiration date.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries,
showing as of the date hereof the parties, subject matter and term thereof.
(z) The Obligations constitute "Designated Senior Indebtedness" of the
Borrower under and as defined in the Senior Subordinated Convertible Notes
Indenture.
(aa) The representations and warranties of the Borrower contained in
the Purchase Agreement are true and correct in all material respects as of
the Effective Date.
(bb) None of the Loan Parties or any of their Subsidiaries is (i)
named on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury's Office of Foreign
Assets Control available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇, or (ii) (A) an
agency of the government of a country, (B) an organization controlled by a
country, or (C) a person resident in a country that is subject to a
sanctions program identified on the list maintained by the U.S. Department
of the Treasury's Office of Foreign Assets Control and available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇, or as
otherwise published from time to time, as such program may be applicable to
such agency, organization or person, and the Letters of Credit and the
proceeds from any Advances hereunder will not be used to fund any
operations in, finance any investments or activities in, or make any
payments to, any such country, agency, organization or person.
(cc) Set forth on Schedule V hereto is a complete and accurate list of
all Subsidiaries of the Company on the date hereof, showing as of the date
hereof the legal name and the jurisdiction of incorporation or organization
of each such Subsidiary.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply (i) in all material respects, with the Racketeer
Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970 and the Patriot Act and
(ii) with all other applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA, except
where the failure to do so with respect to this clause (ii) would not be
reasonably likely (whether individually or in the aggregate) to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that no Loan Party shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained as required by GAAP, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable.
(c) Compliance with Environmental Laws. Except as would not reasonably
be expected (whether individually or in the aggregate) to result in a
Material Adverse Effect, comply, and take all reasonable actions to cause
each of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and renew,
and take all reasonable actions to cause each of its Subsidiaries to obtain
and renew, all Environmental Permits necessary for its operations and
properties; and conduct, to the extent required by applicable Environmental
Law, and take all reasonable actions to cause each of its Subsidiaries to
conduct, to the extent required by applicable Environmental Law, any
investigation, study, sampling and testing, cleanup, removal or remedial or
other action necessary to remove and clean up all Hazardous Materials from
any of its properties, in accordance with the requirements of all
applicable Environmental Laws; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to undertake any of the
foregoing to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations and such insurance shall be maintained
in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which any Loan Party or any of its Subsidiaries operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, (i) its
existence, legal structure and legal name and (ii) its rights (charter and
statutory), permits, licenses, approvals, privileges and franchises
necessary in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 5.02(d) and except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and from time to time,
permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and to discuss the affairs, finances
and accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants, all at the expense of the Borrower; provided that, excluding
any such visits and inspections during the continuation of a Default, only
the
Administrative Agent on behalf of the Lender Parties may exercise rights of
the Agents and the Lender Parties under this Section 5.01(f) and the
Administrative Agent shall not exercise such rights more often than twice
during any calendar year absent the existence of a Default; provided,
further that if a Default exists, the Administrative Agent or any Lender
Party (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at
any time during normal business hours and upon reasonable advance notice.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, books of record and account, in which entries shall be made of all
financial transactions and the assets and business of the Borrower and each
such Subsidiary in accordance with generally accepted accounting principles
in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates, other than transactions among
the Loan Parties, on terms that are fair and reasonable and not materially
less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate, other
than the transactions listed on Schedule 5.01(i) hereto.
(j) Covenant to Guarantee Obligations and Give Security. Upon (w) the
request of the Collateral Agent following the occurrence and during the
continuance of a Default, (x) the formation or acquisition of any
Subsidiaries by any Loan Party, (y) the acquisition of fee owned real
property by any Loan Party or any of its Subsidiaries with a fair market
value in excess of $2,500,000 (a "NEW OWNED PROPERTY"), or (z) the
acquisition after the Effective Date of any personal property by any Loan
Party, and such property, in the judgment of the Collateral Agent, shall
not already be subject to a perfected first priority security interest in
favor of the Collateral Agent for the benefit of the Secured Parties, then
in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary of a Loan Party that is not a CFC or a Subsidiary of a CFC,
within 30 days after such formation or acquisition, cause each such
Subsidiary to duly execute and deliver to the Collateral Agent a
guaranty or guaranty supplement, in form and substance reasonably
satisfactory to the Collateral Agent, guaranteeing the other Loan
Parties' obligations under the Loan Documents,
(ii) within 45 days after (A) such request or acquisition of
property by any Loan Party, duly execute and deliver, and cause each
Loan Party to duly execute and deliver, to the Collateral Agent such
additional mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and
other security agreements as specified by, and in form and substance
reasonably satisfactory to, the Collateral Agent, securing payment of
all the Obligations of such Loan Party under the Loan Documents and
constituting Liens on all such properties, (B) such formation or
acquisition of any Subsidiary referred to in clause (i) above, (x)
cause such Subsidiary to duly execute and deliver supplements to the
Security Agreement and the Intellectual Property Security Agreement
and other control and security agreements granting a security interest
in substantially all of its assets as described therein, together with
mortgages on any owned real property having a fair market value in
excess of
$2,500,000, and (y) cause each Loan Party acquiring Equity Interests
in such Subsidiary to duly execute and deliver to the Collateral Agent
a supplement to the Security Agreement pledging the Equity Interests
in such Subsidiary, in each case as specified by, and in form and
substance reasonably satisfactory to, the Collateral Agent, securing
payment of all of the obligations of such Subsidiary or Loan Party,
respectively, under the Loan Documents and (C) such formation or
acquisition of any Subsidiary of a Loan Party that is a CFC directly
owned by a Loan Party or a Subsidiary of a Loan Party that is required
to become a Loan Party, cause each Loan Party (including any
Subsidiaries of any Loan Party that are required to become Loan
Parties) to pledge the Equity Interests of such CFC as otherwise
provided in subclauses (B)(x) and (B)(y), except that only 66% of the
voting Equity Interests and 100% of the non-voting Equity Interests of
such CFC shall be pledged in favor of the Secured Parties,
(iii) notwithstanding anything to the contrary contained in this
Section 5.01(j), in connection with the acquisition of a New Owned
Property by a Loan Party, (A) within 30 days after such acquisition,
furnish to the Administrative Agent a description, in detail
satisfactory to the Administrative Agent, of such New Owned Property
and (B) within 45 days after such acquisition, furnish to the
Administrative Agent each of the items set forth in Sections
3.01(a)(iv)(A), (iv)(B), (iv)(C), (iv)(D) and (iv)(F), mutatis
mutandis, in each case in respect of such New Owned Property,
(iv) within 45 days after such request, formation or acquisition,
take, and cause each Loan Party and each newly acquired or newly
formed Subsidiary of a Loan Party (other than any such Subsidiary that
is a CFC or a Subsidiary that is held directly or indirectly by a CFC)
to take, whatever action (including, without limitation, the recording
of mortgages, the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices on
title documents) may be reasonably necessary in the reasonable opinion
of the Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it), for the
benefit of the Secured Parties, valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements delivered
pursuant to this Section 5.01(j), enforceable against all third
parties in accordance with their terms, and
(v) within 60 days after such request, formation or acquisition,
deliver to the Collateral Agent, upon the reasonable request of the
Collateral Agent, a signed copy of a favorable opinion, addressed to
the Collateral Agent and the other Secured Parties, of counsel for the
Loan Parties reasonably acceptable to the Collateral Agent as to (1)
the matters contained in Section 5.01(j)(i), (ii), (iii) and (iv)
above, (2) such guaranties, guaranty supplements, mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and other security agreements being
legal, valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, (3) such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties and (4) such other
matters as the Collateral Agent may reasonably request.
(k) Further Assurances. (i) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, correct, and cause each of
its Subsidiaries promptly to correct, any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party through
the Administrative Agent, may reasonably require from time to time in order
to (A) carry out more effectively the purposes of the Loan Documents, (B)
to the fullest extent permitted by applicable law, subject any Loan Party's
or any of its Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to
do so.
(l) Preparation of Environmental Reports. At the reasonable request of
the Administrative Agent or the Collateral Agent after the release or
threatened release of hazardous materials or any condition reasonably
likely to give rise to an Environmental Action that would regarding any of
the foregoing be reasonably likely (whether individually or in the
aggregate) to have a Material Adverse Effect, provide to the Lender Parties
within 60 days after such request, at the expense of the Borrower, an
environmental site assessment report of reasonable scope for any of its or
its Subsidiaries' properties described in the Mortgages, prepared by an
environmental consulting firm reasonably acceptable to the Administrative
Agent or the Collateral Agent, indicating the presence or absence of
Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Administrative Agent or the Collateral Agent reasonably determines that a
material risk exists that any such report will not be provided within the
time referred to above, the Administrative Agent or the Collateral Agent
may retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and the Borrower hereby grants and agrees to take
all reasonable actions to cause any Subsidiary of the Borrower that owns
any property described in the Mortgages to grant at the time of such
request to the Agents, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to
the rights of tenants, to reasonably enter onto their respective properties
to reasonably undertake such an assessment.
(m) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so, except,
in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably likely to have a Material Adverse
Effect.
(n) Interest Rate Hedging. Enter into on or prior to the date which is
90 days after the Effective Date interest rate Hedge Agreements with a
Lender Party or Lender Parties (or with one or more financial institution
approved by the Administrative Agent) covering a notional amount of not
less than $160,000,000 of the Commitments under all the Facilities and
providing for such Lender Party (or Lender Parties) to make payments
thereunder for a period of no less
than 2 years, all in form reasonably satisfactory to the Administrative
Agent. No prepayment, repayment or acceleration under this Agreement and no
change in the terms hereof shall affect the obligations of each Loan Party
under any Secured Hedge Agreement, which obligations shall remain in full
force and effect notwithstanding such prepayment, repayment, acceleration
or change, subject to the terms of such Hedge Agreement; provided that the
Collateral securing such Secured Hedge Agreement may be released as
provided in the Security Agreement.
(o) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each Material Contract in full force and effect and enforce
each Material Contract in accordance with its terms, except, in any case,
where the failure to do so, either individually or in the aggregate, could
not be reasonably likely to have a Material Adverse Effect.
(p) Use of Proceeds. Use each of the Letters of Credit and the
proceeds of each of the Advances solely for the purposes set forth in the
Preliminary Statements hereof.
(q) Maintenance of Credit Ratings. Maintain ratings of the Facilities
by ▇▇▇▇▇'▇ and S&P.
(r) Control Agreements. Use commercially reasonable efforts to duly
execute and deliver to the Collateral Agent within 90 days after the
Effective Date (i) each Securities Account Control Agreement referred to in
the Security Agreement, duly executed by the Collateral Agent, the
applicable Loan Party and the applicable securities intermediary and (ii)
each Deposit Account Control Agreement referred to in the Security
Agreement, duly executed by the Collateral Agent, the applicable Loan Party
and the applicable depositary bank; provided that no Loan Party shall be
required to deliver any such Securities Account Control Agreement or
Deposit Account Control Agreement with respect to any securities account or
deposit account as long as the aggregate principal amount of funds and
financial assets credited to all such securities accounts and deposit
accounts does not exceed $2,000,000.
(s) Merge BISYS Entities. Cause the Company and each Subsidiary of the
Company listed on Schedule V hereto to be merged into one or more Loan
Parties (in each case with a Loan Party being the surviving corporation)
within 30 days after the Effective Date.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Loan Party and its Subsidiaries will not, at any
time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names any
Loan Party or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens for the Borrower and its Subsidiaries;
(iii) Liens existing on the date hereof and described on Schedule
4.01(u) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries to secure
the purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be
subject to such Liens (other than any such Liens created in
contemplation of such acquisition that do not secure the purchase
price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved, and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced; and provided further that the aggregate principal amount
of the Debt secured by Liens permitted by this clause (iv) shall not
exceed the amount permitted under Section 5.02(b)(iii)(B) at any time
outstanding;
(v) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower
or existing on any property or asset of any Person that becomes a
Subsidiary of the Borrower after the date hereof prior to the time
such Person becomes a Subsidiary of the Borrower; provided that (A)
such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary of the Borrower,
as applicable, (B) such Lien shall not apply to any other property or
assets of the Borrower or any Subsidiary of the Borrower (other than
proceeds) and (C) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person
becomes a Subsidiary of the Borrower, as applicable, and extensions,
renewals, refinancings and replacements thereof that do not increase
the outstanding principal amount thereof (plus accrued interest and
premiums in respect thereof);
(vi) Liens arising in connection with Capitalized Leases of the
Borrower or any of its Subsidiaries permitted under Section
5.02(b)(iii)(C); provided that no such Lien shall extend to or cover
any Collateral or assets other than the assets subject to such
Capitalized Leases;
(vii) Liens created under or in respect of the Second Lien Term
Loan Facility;
(viii) Liens of a collecting bank arising in the ordinary course
of business under Section 4-208 of the Uniform Commercial Code in
effect in the relevant jurisdiction covering only the items being
collected upon;
(ix) Liens granted by a Subsidiary of the Borrower that is not a
Loan Party in favor of the Borrower or another Loan Party in respect
of Debt owed by such Subsidiary;
(x) Liens on securities held by the Borrower or any of its
Subsidiaries representing an interest in a joint venture to which the
Borrower or such Subsidiary is a party (provided that such joint
venture is permitted under Section 5.02(f) and is not a Subsidiary of
the Borrower) to the extent that (A) such Liens constitute purchase
options, calls or similar rights of a counterparty to such joint
venture and (B) such Liens are
granted pursuant to the terms of the partnership agreement, joint
venture agreement or other similar document or documents pursuant to
which such joint venture was created or otherwise governing the rights
and obligations of the parties to such joint venture; and
(xi) other Liens with respect to property or assets of the
Borrower or any Subsidiary of the Borrower with an aggregate fair
market value (valued at the time of the creation of the Liens) for all
such Liens in the aggregate not to exceed $5,000,000 at any time.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements required pursuant to
Section 5.01(p) or other Hedge Agreements designed to hedge
against fluctuations in interest rates or currency rates incurred
in the ordinary course of business and consistent with prudent
business practice, and
(B) Debt owed to, or guarantees in favor of, a wholly owned
Subsidiary of the Borrower, which Debt, if such Subsidiary is a
Loan Party, (x) shall be subordinated to the Obligations and (y)
shall, in the case of intercompany advances, be evidenced by
promissory notes pledged as security for the Obligations of the
holder thereof under the Loan Documents to which such holder is a
party and delivered to the Collateral Agent pursuant to the terms
of the Security Agreement;
(ii) in the case of any Subsidiary of the Borrower
(A) which is a Loan Party, Debt owed to, or guarantees in
favor of, the Borrower or to a wholly owned Subsidiary of the
Borrower which is a Loan Party, provided that, in each case, such
Debt shall, in the case of intercompany advances, be evidenced by
promissory notes pledged as security for the Obligations of the
holder thereof under the Loan Documents to which such holder is a
party and delivered to the Collateral Agent pursuant to the terms
of the Security Agreement, and
(B) which is not a Loan Party, (1) Debt owed to any Loan
Party which is permitted by Section 5.02(f)(x) and (2) Debt used
to finance working capital needs of such Subsidiary, provided
that such Debt is not supported by a guarantee or collateral
provided by a Loan Party and the aggregate amount of Debt
permitted under this clause (B)(2) does not exceed $10,000,000;
and
(iii) the Guaranties and, in the case of the Borrower and its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) so long as no Default has occurred and is continuing,
Debt secured by Liens permitted by Section 5.02(a)(iv) not to
exceed in the aggregate $10,000,000 at any time outstanding,
(C) Capitalized Leases not to exceed in the aggregate
$20,000,000 at any time outstanding,
(D) Debt of any Person that becomes a Subsidiary of the
Borrower after the date hereof in accordance with the terms of
Section 5.02(f) which Debt does not exceed $10,000,000 in the
aggregate, is existing at the time such Person becomes a
Subsidiary of the Borrower and is not created in contemplation of
or in connection with such Person becoming a Subsidiary of the
Borrower,
(E) Debt under or in respect of the Second Lien Term Loan
Facility,
(F) Surviving Debt existing on the date hereof and set forth
in Schedule 4.01(t) hereto and extensions, renewals and
replacements of any such Debt, provided that such extending,
renewal or replacement Debt (1) shall not add guarantors,
obligors or security from that which applied to the Debt being
extended, renewed or replaced, (2) shall not be in principal
amount that exceeds the principal amount of the Debt being
extended, renewed or replaced (plus accrued interest and premium
thereon), (3) shall not have an earlier maturity date or a
decreased Weighted Average Life to Maturity than the Debt being
extended, renewed or replaced, (4) shall be subordinated to the
Obligations on the same terms (or, from the perspective of the
Lenders, better terms), if any, as the Debt being extended,
renewed or replaced and (5) shall not have terms relating to
collateral (if any) or other material terms (taken as a whole)
that are materially less favorable to the Loan Parties than the
terms of the Debt being extended, renewed or replaced,
(G) Debt owed to any Person providing workers' compensation,
health, disability or other employee benefits or property,
casualty or liability insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred
in the ordinary course of business,
(H) (1) Debt of the Borrower or any Subsidiary of the
Borrower in respect of performance bonds, bid bonds, appeal
bonds, surety bonds, completion guarantees and similar
obligations, in each case provided in the ordinary course of
business and (2) any refinancings, renewals and replacements of
any such Debt pursuant to the preceding clause (1) that do not
increase the outstanding principal amount thereof (plus accrued
interest and premium in respect thereof),
(I) Debt arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of
business, provided that such Debt is extinguished within two
Business Days of its incurrence,
(J) Debt arising from agreements of the Borrower or a
Subsidiary of the Borrower providing for indemnification in
connection with the disposition of any business, any assets or
any Subsidiary of the Borrower, other than Guarantees of Debt
incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such
acquisition; and
(K) So long as no Default has occurred and is continuing,
other Debt of the Borrower in an aggregate principal amount not
to exceed $5,000,000 at any one time outstanding.
(c) Nature of Business. Enter into any business, either directly or
through any Subsidiary of the Borrower, except for those businesses in
which the Borrower and its Subsidiaries are engaged on the date of this
Agreement (after giving effect to the Acquisition) or that are reasonably
related or ancillary thereto.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) any Subsidiary of the Borrower may merge into or consolidate
with any other Subsidiary of the Borrower, provided that, in the case
of any such merger or consolidation, the Person formed by such merger
or consolidation shall be a wholly owned Subsidiary of the Borrower,
provided further that, in the case of any such merger or consolidation
to which a Guarantor is a party, the Person formed by such merger or
consolidation shall be a Guarantor;
(ii) in connection with any acquisition permitted under Section
5.02(f), the Borrower or any Subsidiary of the Borrower may merge into
or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that the Person surviving
such merger shall be the Borrower or a wholly owned Subsidiary of the
Borrower; and
(iii) in connection with any sale or other disposition permitted
under Section 5.02(e)(ii), any Subsidiary of the Borrower may merge
into or consolidate with any other Person or permit any other Person
to merge into or consolidate with it;
provided, however, that in each case, immediately before and after giving
effect thereto, no Default shall have occurred and be continuing and in the
case of any such merger to which the Borrower is a party, the Borrower is
the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or agree or permit any of its Subsidiaries to agree
to sell, lease, transfer or otherwise dispose of (including by the grant of
any option or other right in favor of any Person to purchase, lease or
otherwise acquire) any assets, except:
(i) sales of Inventory in the ordinary course of its business and
the granting of any option or other right in favor of any Person to
purchase, lease or otherwise acquire Inventory in the ordinary course
of its business;
(ii) in a transaction authorized by Section 5.02(d);
(iii) sales, transfers or other dispositions of assets among the
Borrower and Guarantors;
(iv) used, obsolete, worn out or surplus equipment or property in
the ordinary course of business;
(v) sales, transfers and dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof;
(vi) dispositions resulting from any casualty or other insured
damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of the
Borrower or any Subsidiary of the Borrower;
(vii) licensing and cross-licensing arrangements entered into in
the ordinary course of business involving any technology or other
intellectual property of the Borrower or any Subsidiary of the
Borrower;
(viii) (A) dispositions of cash or Cash Equivalents for fair
value and (B) leases and subleases of property in the ordinary course
of business not materially interfering with the business of the
Borrower and its Subsidiaries; and
(ix) the sale of any other asset by the Borrower or any of its
Subsidiaries so long as (A) immediately before and after giving effect
thereto, no Default shall occur and be continuing, (B) the purchase
price paid to the Borrower or such Subsidiary for such asset shall be
no less than the fair market value of such asset at the time of such
sale, (C) the purchase price for such asset shall be paid to the
Borrower or such Subsidiary at least 75% in cash and (D) the aggregate
fair market value of such asset and all other assets sold by the
Borrower and its Subsidiaries, and the aggregate purchase price paid
to the Borrower and all of its Subsidiaries for such asset and all
other assets sold by the Borrower and its Subsidiaries, in each case
during the same Fiscal Year pursuant to this clause (ix), shall not
exceed $5,000,000;
provided that in the case of sales of assets pursuant to clause (ix) above,
the applicable Loan Party shall, on the date of receipt by such Loan Party
or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay
the Advances, and cash collateralize the Letters of Credit, pursuant to,
and in the amount and order of priority set forth in, Section 2.06(b)(ii),
as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment, except:
(i) (A) equity Investments by the Borrower and its Subsidiaries
in their Subsidiaries outstanding on the date hereof and (B)
additional equity Investments in Loan Parties;
(ii) loans and advances to employees in the ordinary course of
the business of the Loan Parties and their Subsidiaries as presently
conducted in compliance with all applicable laws (including the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended) and in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(iii) Investments by the Loan Parties and their Subsidiaries in
Cash Equivalents;
(iv) Investments existing on the date hereof and described on
Schedule 4.01(w) hereto;
(v) Investments by the Borrower in Hedge Agreements permitted
under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under
Section 5.02(b) among the Loan Parties;
(vii) Investments of any Person existing at the time such Person
becomes a Subsidiary of the Borrower or consolidates or merges with
the Borrower or any of its Subsidiaries (including in connection with
an Investment permitted under Section 5.02(f)(ix)) so long as such
Investments were not made in contemplation of such Person becoming a
Subsidiary of the Borrower or of such merger and such Person shall use
commercially reasonable efforts to promptly cause such Investments to
comply with this Agreement;
(viii) Investments received in connection with the dispositions
of assets permitted by Section 5.02(e);
(ix) the purchase or other acquisition by the Borrower or any of
its Subsidiaries of (A) all of the Equity Interests in any Person
that, upon the consummation thereof, will be wholly owned directly by
the Borrower or one or more of its wholly owned Subsidiaries
(including, without limitation, as a result of a merger or
consolidation) or (B) the assets comprising a division of business
unit of, or all or a substantial part of the business of, any Person;
provided that, with respect to each purchase or other acquisition made
pursuant to this clause (ix):
(A) the Loan Parties and any such newly created or acquired
Subsidiary shall comply with the requirements of Section 5.01(j);
(B) the lines of business of the Person to be (or the
property and assets of which are to be) so purchased or otherwise
acquired shall be substantially the same lines of business as
those of the Borrower and its Subsidiaries or lines of business
reasonably related or ancillary thereto;
(C) the total cash consideration (including all assumption
of debt, liabilities and other obligations in connection
therewith) paid by or on behalf of the Borrower and its
Subsidiaries for any such purchase or other acquisition, when
aggregated with the total cash consideration (including all
assumption of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Borrower and
its Subsidiaries for all other purchases and other acquisitions
made by the Borrower and its Subsidiaries pursuant to this clause
(ix), shall not exceed, if immediately after giving pro forma
effect to such purchase or other acquisition the Total Leverage
Ratio shall be (1) higher than 4.00:1.00, $50,000,000, (2) higher
than 3.50:1.00 but lower than or equal to 4.00:1.00, $75,000,000
and (3) otherwise, $125,000,000; provided that immediately after
giving effect to any such Investment either (a) the Revolving
Credit Commitments of the Revolving Credit Lenders at such time
shall exceed the aggregate amount of Advances (other than Term
Advances) outstanding at such time by at least $15,000,000 or (b)
the Borrower shall have at least $15,000,000 of cash on hand;
provided, further that (i) Investments made in compliance with
this Section 5.02(f)(ix)(C) may continue to be maintained in the
event that the Total Leverage Ratio increases after the
consummation of such
Investment (other than as a result of such Investment and any
transaction related thereto) so that such Investments would no
longer be permitted had they been made after such increase and
(ii) no Default as a result of a breach of this Section
5.02(f)(ix)(C) shall occur solely as a result of any such
increase in the Total Leverage Ratio;
(D) (1) immediately before and immediately after giving pro
forma effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing and (2) immediately
after giving pro forma effect to such purchase or other
acquisition, (x) the Borrower and its Subsidiaries shall be in
pro forma compliance with all of the covenants set forth in
Section 5.04, (y) the Senior Leverage Ratio and the Total
Leverage Ratio shall be at least 0.25 below the maximum Senior
Leverage Ratio and the Maximum Total Leverage Ratio,
respectively, that shall then be applicable under Section 5.04
and (z) the Administrative Agent shall have received reasonable
projections demonstrating pro forma compliance with such
covenants through the Termination Date with respect to the Term
Facility, such ratios and compliance to be determined on the
basis of the financial statements most recently required to be
delivered to the Administrative Agent and the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be, as though
such purchase or other acquisition had been consummated as of the
first day of the fiscal period covered thereby; and
(E) such Loan Party shall have delivered to the
Administrative Agent, on behalf of the Lender Parties, at least
five Business Days prior to the date on which any such purchase
or other acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of
the requirements set forth in this clause (ix) have been
satisfied or will be satisfied on or prior to the consummation of
such purchase or other acquisition;
(x) Investments by Loan Parties in Subsidiaries that are not Loan
Parties, including, without limitation, capital contributions, loans
and advances by Loan Parties to Subsidiaries that are not Loan Parties
and Guarantees by Loan Parties of Debt of Subsidiaries that are not
Loan Parties, in an aggregate amount for all Investments made under
this clause (x) not to exceed $20,000,000 at any time outstanding; and
(xi) Investments by the Borrower and its Subsidiaries not
otherwise permitted under this Section 5.02(f) in an aggregate amount
not to exceed $5,000,000 plus an amount equal to any returns of
capital actually received in cash in respect of any such Investments
(which amount shall not exceed the amount of such Investment valued at
cost at the time such Investment was made); provided that, with
respect to each Investment made pursuant to this clause (xi), any
determination of the amount of such Investment shall include all cash
and noncash consideration (including, without limitation, the fair
market value of all Equity Interests issued or transferred to the
sellers thereof, all indemnities, earnouts and other contingent
payment obligations to, and the aggregate amounts paid or to be paid
under noncompete, consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and assets and reserves
for liabilities with respect thereto and all assumptions of debt,
liabilities and other obligations in connection therewith) paid by or
on behalf of the Borrower and its Subsidiaries in connection with such
Investment.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in the
Borrower or to issue or sell any Equity Interests therein, except that so
long as no Default shall have occurred and be continuing at the time of any
action described below or would result therefrom:
(i) the Borrower may (A) declare and pay dividends and
distributions payable only in common stock of the Borrower and (B)
except to the extent the Net Cash Proceeds thereof are required to be
applied to the prepayment of the Advances, and the cash
collateralization of the Letters of Credit, pursuant to Section
2.06(b), purchase, redeem, retire, defease or otherwise acquire shares
of its capital stock with the proceeds received contemporaneously from
the issue of new shares of its capital stock with equal or inferior
voting powers, designations, preferences and rights;
(ii) any Subsidiary of the Borrower may declare and pay dividends
ratably with respect to its capital stock, membership or partnership
interests or similar Equity Interests; and
(iii) the Borrower may make payments pursuant to and in
accordance with stock option plans or other benefit plans and in
compliance with all applicable laws (including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002, as amended) for management or employees of the Borrower and
its Subsidiaries that have been approved by the board of directors of
the Borrower in an amount not to exceed $1,000,000 during any fiscal
year.
(h) Amendments of Constitutive Documents, Etc. Amend, or permit any of
its Subsidiaries to amend, (i) its certificate of incorporation or bylaws
or other constitutive documents or (ii) any documents or instruments
governing any material Debt other than the Loan Documents, other than
amendments that could not be reasonably expected to have a Material Adverse
Effect or adversely affect the interests of the Lender Parties.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices except as required by generally accepted accounting
principles or (ii) its Fiscal Year.
(j) Prepayments, Etc., of Certain Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Debt in respect of the Second Lien Term Loan Facility or the Senior
Subordinated Convertible Notes.
(k) Amendment, Etc., of Certain Documents. Cancel, amend, modify or
change in any manner any term or condition of the Second Lien Term Loan
Facility, any of the Senior Subordinated Convertible Notes or the Senior
Subordinated Convertible Notes Indenture, or give any consent, waiver or
approval thereunder, in any manner that would be or is reasonably likely to
be materially adverse to the interests or rights of the Lender Parties.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption
of any Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) in connection with (A) the Second Lien Term Loan
Facility, (B) any purchase money Debt permitted by Section 5.02(b)(iii)(B)
solely to the extent that the agreement or instrument governing such Debt
prohibits a Lien on the property acquired with the proceeds of such Debt,
(C) any Capitalized Lease permitted by Section 5.02(b)(iii)(C) solely to
the extent that such Capitalized Lease prohibits a Lien on the property
subject thereto or (D) any agreement or instrument governing the terms of
Debt permitted under Section 5.02(b)(iii)(D) but only to the extent that
such restrictions or conditions are imposed only on the Person who becomes
a Subsidiary of the Borrower and such agreement or instrument was not
entered into in contemplation of such Person becoming a Subsidiary of the
Borrower.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to
do so.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(o) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of the Borrower
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) any agreement or instrument evidencing Surviving Debt or
the Second Lien Term Loan Facility, (iii) any agreement in effect at the
time such Subsidiary becomes a Subsidiary of the Borrower, so long as such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Borrower and (iv) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary of
the Borrower or the sale of assets pending such sale, provided such
restrictions apply only to the Subsidiary of the Borrower or assets to be
sold.
(p) Amendment, Etc., of Material Contracts. Cancel or terminate any
Material Contract (in each case other than in accordance with its terms) or
consent to or accept any cancellation or termination thereof (in each case
other than in accordance with its terms), amend or otherwise modify any
Material Contract or give any consent, waiver or approval thereunder, waive
any default under or breach of any Material Contract, except if to do so
could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing
on the date of such statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default or event and the
action that the Borrower has taken and proposes to take with respect
thereto.
(b) Annual Financials. (i) As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries, including
therein a Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such Fiscal Year and a Consolidated statement of income
and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case accompanied by an opinion
of PricewaterhouseCoopers or other independent public accountants of
recognized standing, together with a certificate of such accounting firm
stating that in the course of the regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default has occurred and
is continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof.
(ii) As soon as available and in any event within 90 days after the
end of each Fiscal Year, a copy of the consolidating statements of income
of the Borrower and its Subsidiaries for such Fiscal Year in reasonable
detail and duly certified by the Chief Financial Officer of the Borrower as
having been prepared in accordance with GAAP.
(c) Quarterly Financials. (i) As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, commencing with the fiscal quarter ending June 30, 2006, a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments and the absence of
footnotes) by the Chief Financial Officer of the Borrower as having been
prepared in accordance with GAAP.
(ii) As soon as available and in any event within 45 days after the
end of each of the first three quarters of each Fiscal Year, commencing
with the fiscal quarter ending June 30, 2006, a copy of the consolidating
statement of income of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter in reasonable detail and duly certified (subject to normal
year-end audit adjustments and the absence of footnotes) by the Chief
Financial Officer of the Borrower as having been prepared in accordance
with GAAP.
(d) Monthly Financials. As soon as available and in any event within
30 days after the end of each such month, a Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such month and a
Consolidated statement of income and a Consolidated statement of cash flows
of the Borrower and its Subsidiaries for the period commencing at the end
of the previous month and ending with the end of such month and a
Consolidated statement of income and a Consolidated statement of cash flows
of the Borrower and its Subsidiaries for the period commencing at the end
of the previous Fiscal Year and ending with the end of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding year, all in reasonable
detail and duly certified by the Chief Financial Officer of the Borrower.
(e) CFO Certificate. Commencing with the fiscal quarter ending June
30, 2006, concurrently with the delivery of financial statements under
paragraphs (b) and (c) above, a certificate of the Chief Financial Officer
(i) stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with respect
thereto, (ii) showing the computations used by the Borrower in determining
compliance with the covenants contained in Section 5.04 and (iii) in the
event of any change in GAAP used in the preparation of such financial
statements, specifying the effect of such change on such financial
statements.
(f) Insurance. Together with delivery of annual financial statements,
a report summarizing the insurance coverage (specifying type, amount and
carrier) in effect for each Loan Party and its Subsidiaries and containing
such additional information as any Agent may reasonably specify.
(g) Annual Forecasts. As soon as available and in any event no later
than 60 days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form reasonably satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on a monthly basis for the Fiscal Year following such Fiscal
Year.
(h) Litigation. Promptly after the Borrower has knowledge of the
commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any Governmental Authority affecting any
Loan Party or any of its Subsidiaries of the type described in Section
4.01(f) (including clauses (i) and (ii) thereof), and promptly after the
occurrence thereof, notice of any material adverse change in the status of
the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(i) Securities Reports. To the extent not publicly available, promptly
after the sending or filing thereof, copies of all proxy statements,
financial statements and reports that any Loan Party or any of its
Subsidiaries filed with the Securities and Exchange Commission or any
Governmental Authority that may be substituted therefor, or with any
national securities exchange.
(j) Schedule of Material Contracts. Together with the delivery of
financial statements pursuant to Section 5.03(b) or (c), a report
supplementing Schedule 4.01(y) hereto and a description of such changes in
the information included in such Schedule as may be necessary for such
Schedule to be accurate and complete.
(k) Agreement Notices. Promptly upon receipt thereof, copies of all
material notices, requests and other documents received by any Loan Party
or any of its Subsidiaries under or pursuant to any Related Document or any
instrument, indenture, loan or credit or similar agreement to which any
Loan Party or any of its Subsidiaries is a party in respect of Debt of
$5,000,000 or more, regarding or related to any breach or default by any
party thereto or any other event that could materially impair the value of
the interests or the rights of such Loan Party or otherwise have a Material
Adverse Effect and copies of any material amendment, modification or waiver
of any provision of any Related Document.
(l) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred which would be
reasonably likely to result in a liability that would exceed $500,000, a
statement of the Chief Financial Officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any Plan or
to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after a written request by any Agent, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to each
Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause (A)
or (B), where, in any of the events listed in (A) or (B), the amounts set
forth in (C) would be reasonably likely to result in liability that would
exceed $500,000.
(m) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law, except for
ordinary course operational limitations imposed by any applicable
Environmental Permit.
(n) Real Property. Together with delivery of annual financial
statements, a report supplementing Schedule 4.01(v) hereto, including an
identification of all owned real property disposed of by such Loan Party or
any of its Subsidiaries during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction,
state, record owner and book value thereof ) of all real property acquired
during such Fiscal Year and a description of such other changes in the
information included in such Schedule as may be necessary for such Schedule
to be accurate and complete.
(o) Other Information. Such other information respecting the business,
financial condition, operations or properties of any Loan Party or any of
its Subsidiaries as any Agent, or any Lender Party through the
Administrative Agent, may from time to time reasonably request.
Financial statements required to be delivered pursuant to Section 5.03(b) or (c)
(to the extent any such documents are included in materials otherwise filed with
the Securities and Exchange Commission) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such
documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender Party and each Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) upon the request of the Administrative
Agent or any Lender Party, the Borrower shall deliver paper copies of such
documents to the Administrative Agent or such Lender Party, as the case may be,
and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent for the benefit of each Lender Party
of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. The
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the financial statements referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery, and each Lender Party shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Senior Leverage Ratio. Maintain a Senior Leverage Ratio as of the
last day of each fiscal quarter set forth below of not more than the ratio
set forth below opposite such fiscal quarter:
QUARTER ENDING RATIO
-------------- ---------
June 30, 2006 3.25:1.00
September, 30, 2006 3.25:1.00
December 31, 2006 3.00:1.00
March 31, 2007 3.00:1.00
June 30, 2007 3.00:1.00
September, 30, 2007 3.00:1.00
December 31, 2007 2.75:1.00
March 31, 2008 2.75:1.00
June 30, 2008 2.75:1.00
September 30, 2008 2.75:1.00
December 31, 2008 and thereafter 2.50:1.00
(b) Total Leverage Ratio. Maintain at all times a Total Leverage Ratio
as of the last day of each fiscal quarter set forth below of not more than
the ratio set forth below opposite such fiscal quarter:
QUARTER ENDING RATIO
-------------- ---------
June 30, 2006 4.75:1.00
September, 30, 2006 4.50:1.00
December 31, 2006 4.25:1.00
March 31, 2007 4.25:1.00
June 30, 2007 4.25:1.00
September, 30, 2007 4.25:1.00
December 31, 2007 4.00:1.00
March 31, 2008 4.00:1.00
June 30, 2008 4.00:1.00
September 30, 2008 4.00:1.00
December 31, 2008 and thereafter 3.75:1.00
(c) Fixed Charge Coverage Ratio. Maintain at all times a Fixed Charge
Coverage Ratio as of the last day of each fiscal quarter of not more than
1.75:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("EVENTS OF
DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within 3 Business Days after the same shall become due and payable; or
(b) any representation or warranty made or deemed made by any Loan
Party (or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 2.14, 5.01(e) (as it relates to
preservation of corporate existence), (i), (j), (p), (r) or (s), 5.02,
5.03(a) or 5.04; or
(d) (i) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in Section 5.03(b), (c), (e), (g),
(h) or (m) and such failure shall remain unremedied for 10 days after the
earlier of the date on which (A) a Responsible Officer becomes aware of
such failure or (B) written notice thereof shall have been given to the
Borrower by any Agent or any Lender Party or (ii) any Loan Party shall fail
to perform or observe any other term, covenant or agreement contained in
any Loan Document (other than described in clauses (a), (b), (c) or (d)(i)
of this Section 6.01) on its part to be performed or observed and such
failure shall remain unremedied for 30 days after the earlier of the date
on which (A) a Responsible Officer becomes aware of such failure or (B)
written notice thereof shall have been given to the Borrower by any Agent
or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt of such Loan Party or such Subsidiary (as the case may be) that
is outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $5,000,000 either individually
or in the aggregate for all such Loan Parties and Subsidiaries (but
excluding Debt outstanding hereunder), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or otherwise to
cause, or to permit the holder thereof to cause, such Debt to mature; or
any such Debt shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 30 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); or
(g) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of $5,000,000, shall be rendered against
any Loan Party or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that any
such judgment or order shall not give rise to an Event of Default under
this Section 6.01(g)(ii) if and for so long as (A) the amount of such
judgment or order is covered by a valid and binding policy of insurance in
favor of such Loan Party or Subsidiary from an insurer that is rated at
least "A" by A.M. Best Company, which policy covers full payment thereof
and (B) such insurer has been notified, and has not disputed the claim made
for payment, of the amount of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any material provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid
and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien on and
security interest in any material portion of the Collateral (or any Loan
Party shall so assert or shall take any action to discontinue or to assert
the invalidity or unenforceability thereof); or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $5,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have incurred
Withdrawal Liability to a Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability
for Multiemployer Plans as to which a complete or partial withdrawal has
occurred (determined as of the date of the notification of such incurrence
to such Loan Party or ERISA Affiliate by the sponsor of such Multiemployer
Plan), exceeds $5,000,000; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $5,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare all or any portion of the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by the Issuing Bank or a Revolving Credit Lender pursuant to Section
2.03(c)) and of the Issuing Bank to issue Letters of Credit to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare all or any portion of the Advances, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon all or such portion, as applicable, of the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief,
or commencement of any proceeding, with respect to the Borrower under any
Bankruptcy Law, (x) the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c)) and of
the Issuing Bank to issue Letters of Credit shall automatically be terminated
and (y) the Advances, all such interest and all such amounts shall automatically
become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Collateral Agent on behalf of the Lender Parties in same day
funds at the Collateral Agent's Office, for deposit in the L/C Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding; provided, however, that in the event of an actual or
deemed entry of an order for relief, or commencement of any proceeding, with
respect to the Borrower under any Bankruptcy Law, the Borrower shall be
obligated to pay to the Collateral Agent on behalf of the Lender Parties in same
day funds at the Collateral Agent's Office, for deposit in the L/C Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower. If at any
time the Administrative Agent or the Collateral Agent determines pursuant to any
court order or other applicable legal requirements that any funds held in the
L/C Collateral Account are subject to any right or claim of any Person other
than the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent or the Collateral Agent,
pay to the Collateral Agent, as additional funds to be deposited and held in the
L/C Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Collateral Account that the Administrative Agent or the Collateral Agent, as
the case may be, determines to be free and clear of any such right and claim.
Upon the drawing upon any Letter of Credit for which funds are on deposit in the
L/C Collateral Account, such funds shall be applied to reimburse the Issuing
Bank or Revolving Credit Lenders, as applicable, to the extent permitted by
applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable) and/or the Issuing
Bank (if applicable) and on behalf of itself and its Affiliates as potential
Hedge Banks) hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Obligations of the Loan Parties), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties, all Hedge Banks and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law.
(b) In furtherance of the foregoing, each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable) and/or the Issuing
Bank (if applicable) and on behalf of itself and its Affiliates as potential
Hedge Banks) hereby appoints and authorizes the Collateral Agent to act as the
agent of such Lender Party for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of
the Secured Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Collateral Agent (and any
Supplemental Collateral Agents appointed by the Collateral Agent pursuant to
Section 7.01(c) for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights or
remedies thereunder at the direction of the Collateral Agent (given with the
requisite consent of the Lenders as provided herein and in the other Loan
Documents)) shall be entitled to the benefits of this Article VII (including,
without limitation, Section 7.05) as though the Collateral Agent (and any such
Supplemental Collateral Agents) were an "Agent" under the Loan Documents, as if
set forth in full herein with respect thereto.
(c) Any Agent may execute any of its duties under this Agreement or
any other Loan Document (including for purposes of holding or enforcing any Lien
on the Collateral (or any portion thereof) granted under the Collateral
Documents or of exercising any rights and remedies thereunder at the direction
of the Collateral Agent) by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Collateral Agent may, with
the consent of the Borrower, not to be unreasonably withheld, also from time to
time, when the Collateral Agent deems it to be reasonably necessary, appoint one
or more trustees, co-trustees, collateral co-agents, collateral subagents or
attorneys-in-fact (each, a "SUPPLEMENTAL COLLATERAL AGENT") with respect to all
or any part of the Collateral; provided, however, that no such Supplemental
Collateral Agent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in writing by
the Collateral Agent (acting with the requisite consent of the Lenders as
provided herein and in the other Loan Documents). Should any instrument in
writing from the Borrower or any other Loan Party be required by any
Supplemental Collateral Agent so appointed by the Collateral Agent to more fully
or certainly vest in and confirm to such Supplemental Collateral Agent such
rights, powers, privileges and duties, the Borrower shall, or shall cause such
other Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon the reasonable request by the Collateral Agent. If any
Supplemental Collateral Agent, or successor thereto, shall die, become incapable
of acting, resign or be removed, all rights, powers, privileges and duties of
such Supplemental Collateral Agent, to the extent permitted by law, shall
automatically vest in and be exercised by the Collateral Agent until the
appointment of a new Supplemental Collateral Agent. No Agent shall be
responsible for the negligence or misconduct of any agent, attorney-in-fact or
Supplemental Collateral Agent that it selects in accordance with the foregoing
provisions of this Section 7.01(c) in the absence of such Agent's gross
negligence or willful misconduct.
(d) Each Agent agrees that upon the receipt of notices and written
information furnished by the Borrower pursuant to the requirements of the Loan
Documents, such Agent will promptly furnish copies thereof to the Lender Parties
(by electronic means or otherwise).
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) may treat
the payee of any Note as the holder thereof until, in the case of the
Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any
Default under the Loan Documents or to inspect the property (including the books
and records) of any Loan Party; (e) shall not be responsible to any Lender Party
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (f) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Wachovia and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, if any, Wachovia shall have the
same rights and powers under the Loan Documents as any other Lender Party and
may exercise the same as though it were not an Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
Wachovia in its individual capacity. Wachovia and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from, and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person that may
do business with or own securities of any Loan Party or any such Subsidiary, all
as if Wachovia were not an Agent and without any duty to account therefor to the
Lender Parties. No Agent shall have any duty to disclose any information
obtained or received by it or any of its Affiliates relating to any Loan Party
or any of its Subsidiaries to the extent such information was obtained or
received in any capacity other than as such Agent.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender Party and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender Party
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender Party and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents (collectively, the
"INDEMNIFIED COSTS"); provided, however, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower and to the extent that the same do not result from
such Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Issuing Bank in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Issuing Bank under the Loan
Documents; provided, however, that no Lender Party shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Issuing
Bank's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse the Issuing Bank
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrower under
Section 9.04, to the extent that the Issuing Bank is not promptly reimbursed for
such costs and expenses by the Borrower and to the extent that the same do not
result from such Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction.
(c) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time and (iii) the aggregate unused portions of their respective Revolving
Credit Commitments and Term Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and the aggregate principal amount of Letter of Credit Advances owing to the
Issuing Bank shall be considered to be owed to the Revolving Credit Lenders
ratably in accordance with their respective Revolving Credit Commitments. The
failure of any Lender Party to reimburse any Agent or the Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to such Agent or the Issuing Bank, as the case
may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse such Agent or the Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
the Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign at any time by giving
written notice thereof to the Lender Parties and the Borrower. Upon any such
resignation, the Required Lenders with the consent of the Borrower (not to be
unreasonably withheld) shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lender Parties, with
the consent of the Borrower (not to be unreasonably withheld) appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent and, in the case of a successor Collateral
Agent, upon the execution and filing or recording of such financing statements,
or amendments thereto, and such amendments or supplements to such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. If within 45 days
after written notice is given of the retiring Agent's resignation under this
Section 7.06 no successor Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (a) the retiring Agent's
resignation shall become effective, (b) the retiring Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Agent under
the Loan Documents until such time, if any, as the Required Lenders appoint a
successor Agent as provided above. After any retiring Agent's resignation
hereunder as Agent shall have become effective, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
SECTION 7.07. Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Advance or Letter of Credit shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Advances, Letter of Credit
Agreements and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lender Parties and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Lender Parties and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lender Parties and the
Administrative Agent under Sections 2.07, 2.08(b) and 9.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender Party to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such payments
directly to the Lender Parties, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 9.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender Party any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender Party or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
Party in any such proceeding.
SECTION 7.08. Collateral and Guaranty Matters. The Lender Parties (on
behalf of themselves and any affiliated Secured Hedge Banks) and the Secured
Hedge Banks irrevocably authorize the Administrative Agent, at its option and in
its discretion, in connection with a sale of assets or stock of a Subsidiary of
the Borrower permitted under the Loan Documents:
(a) to release any Lien on any property granted to or held by the
Collateral Agent (and/or the Lender Parties and the Secured Hedge Banks, as
the case may be) under any Loan Document or Secured Hedge Agreement; and
(b) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary of the Borrower as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
7.08.
SECTION 7.09. Other Agents; Arrangers and Managers. None of the Lender
Parties or other Persons identified on the facing page or signature pages of
this Agreement as a "syndication agent," "documentation agent," "bookrunner
manager," "bookrunner," "lead arranger," "co-arranger" or "arranger" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than to the extent expressly set forth herein and, in the case
of such Lenders, those applicable to all Lender Parties as such. Without
limiting the foregoing, none of the Lender Parties or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender Party acknowledges that it has not relied, and will not
rely, on any of the Lender Parties or other Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 7.10. Intercreditor Agreement. Each of the Lender Parties hereby
acknowledges that it has received and reviewed the Intercreditor Agreement and
agrees to be bound by the terms thereof. Each Lender Party (and each Person that
becomes a Lender Party hereunder pursuant to Section 9.07) hereby (a)
acknowledges that Wachovia is acting under the Intercreditor Agreement in
multiple capacities as the Administrative Agent, the Collateral Agent and the
collateral agent under the Intercreditor Agreement and (b) waives any conflict
of interest, now contemplated or arising hereafter, in connection therewith and
agrees not to assert against Wachovia any claims, causes of action, damages or
liabilities of whatever kind or nature relating thereto, other than any such
claim, cause of action, damage or liability relating to Wachovia's gross
negligence or willful misconduct in acting in any such capacity as found in a
final, non-appealable judgment by a court of competent jurisdiction. Each Lender
Party (and each Person that becomes a Lender Party hereunder pursuant to Section
9.07) hereby authorizes and directs Wachovia to enter into the Intercreditor
Agreement on behalf of such Lender Party and agrees that Wachovia, in its
various capacities thereunder, may take such actions on its behalf as is
contemplated by the terms of the Intercreditor Agreement.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty; Limitation of Liability. (a) Each Guarantor,
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all obligations of each other Loan Party now or hereafter existing under or in
respect of the Secured Hedge Agreements and the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing obligations), whether direct or
indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest (including Post Petition Interest), premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such
obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or any other Secured Party in enforcing any rights
under this Guaranty or any other Loan Document. Without limiting the generality
of the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to this Guaranty and the obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the obligations of such Guarantor under
this Guaranty not constituting a fraudulent transfer or conveyance (after taking
into account the provisions of paragraph (c) below).
(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 8.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The obligations of each Guarantor under or
in respect of this Guaranty are independent of the Guaranteed Obligations or any
other obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of, or any
impairment of any Lien on or security interest in, any Collateral or any
other collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
obligations of any Loan Party under the Loan Documents or any other assets
of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or
surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to,
or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 8.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of such
Guarantor hereunder.
(d) Each Guarantor acknowledges that the Collateral Agent may, without
notice to or demand upon such Guarantor and without affecting the liability of
such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale in accordance with the Loan Documents, and each Guarantor hereby waives any
defense to the recovery by the Collateral Agent and the other Secured Parties
against such Guarantor of any deficiency after such nonjudicial sale and any
defense or benefits that may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any other Loan Party or any of its Subsidiaries now or hereafter
known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 8.02 and this Section
8.03 are knowingly made in contemplation of such benefits.
SECTION 8.04. Payments Free and Clear of Taxes, Etc. Any and all payments
made by any Guarantor under or in respect of this Guaranty or any other Loan
Document shall be made, in accordance with Section 2.12, free and clear of and
without deduction for any and all present or future Taxes and subject to the
limitations set forth herein.
SECTION 8.05. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the cash payment in full of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit subject to
the Agent's ability to release any Guarantor from its obligations in connection
with a sale permitted hereunder, (b) be binding upon each Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Lender Parties, the Administrative Agent and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any Lender
Party may assign or otherwise transfer all or any portion of its rights and
obligations hereunder (including, without limitation, all or any portion of its
Commitment, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender Party herein or otherwise, in
each case as provided in Section 9.07. No Guarantor shall have the right to
assign its rights or obligations hereunder or any interest herein (other than
pursuant to transactions permitted by Section 5.02(d)) without the prior written
consent of the Administrative Agent and the Lender Parties.
SECTION 8.06. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit and all
Secured Hedge Agreements shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of all
Letters of Credit and all Secured Hedge Agreements, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter
arising. If (i) any Guarantor shall make payment to any Secured Party of all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, (iii) the Termination Date shall have occurred and (iv) all Letters of
Credit and all Secured Hedge Agreements shall have expired or been terminated,
the Secured Parties will, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
SECTION 8.07. Guaranty Supplements. Upon the execution and delivery by any
Person of a guaranty supplement in substantially the form of Exhibit E hereto
(each, a "GUARANTY SUPPLEMENT"), (a) such Person shall be referred to as an
"ADDITIONAL GUARANTOR" and shall become and be a Guarantor hereunder, and each
reference in this Guaranty to a "GUARANTOR" shall also mean and be a reference
to such Additional Guarantor, and (b) each reference herein to " THIS GUARANTY",
"HEREUNDER", "HEREOF" or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the "GUARANTY", "THEREUNDER",
"THEREOF" or words of like import referring to this Guaranty, shall mean and be
a reference to this Guaranty as supplemented by such Guaranty Supplement.
SECTION 8.08. Subordination. Each Guarantor hereby subordinates any and all
debts, liabilities and other obligations owed to such Guarantor by each other
Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 8.08:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor may receive regularly scheduled payments from any other Loan
Party on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), however, unless the Required Lenders otherwise agree, no
Guarantor shall demand, accept or take any action to collect any payment on
account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in
cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("POST
PETITION INTEREST")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Event of Default, each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Secured Parties and deliver
such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of such Guarantor under
the other provisions of this Guaranty.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Event of Default, the Administrative Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and
all Post Petition Interest), and
(ii) to require each Guarantor (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Administrative Agent for application to
the Guaranteed Obligations (including any and all Post Petition Interest).
SECTION 8.09. Limitations on Enforcement. The Lender Parties agree that
this Guaranty may be enforced only by the action of the Administrative Agent
acting upon the instructions of the Required Lenders and that no Lender Party
shall have any right individually to seek to enforce or to enforce this
Guaranty, it being understood and agreed that the rights and the remedies with
respect to this Guaranty may be exercised by the Administrative Agent for the
benefit of the Lender Parties under the terms of this Agreement. The Lender
Parties further agree that this Guaranty may not be enforced against any
director, officer, employee or stockholder of the Guarantors (unless such Person
is itself a Guarantor).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. (a) No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower or any other Loan Party therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Required
Lenders (or by the Administrative Agent on their behalf upon its receipt of the
consent thereof) and the Borrower or the applicable Loan Party, as the case may
be, and acknowledged by the Administrative Agent, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(i) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Article VI) without the written consent
of such Lender;
(ii) postpone any date scheduled for any payment of principal or
interest under Section 2.04 or 2.07, or any date fixed for the payment of
fees or other amounts due the Lenders (or any of them) hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby;
(iii) reduce the principal of, or the rate of interest specified
herein on, any Advance or L/C Disbursement, or any fees or other amounts
payable hereunder or under any other Loan Document, without the written
consent of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary (i) to amend
the definition of "Default Rate" or to waive any obligation of the Borrower
to pay interest at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Advance or L/C
Disbursement or to reduce any fee payable hereunder;
(iv) change the order of application of any reduction in the
Commitments or any prepayment of Advances between the Facilities from the
application thereof set forth in the applicable provisions of Sections
2.06(a) and (b), respectively, in any manner that materially and adversely
affects the Lenders under such Facilities or require the permanent
reduction of the Revolving Credit Facility at any time when all or a
portion of the Term Facility remains in effect without the written consent
of the Majority Facility Lenders adversely affected thereby;
(v) change any provision of this Section 9.01 without the written
consent of each Lender, or change (i) the definition of (A) "Required
Lenders" without the written consent of each Lender or (B) "Secured
Obligations", without the written consent of each Hedge Bank or (ii) any
other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make
any determination or grant any consent hereunder, without the written
consent of each Lender;
(vi) release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent
of each Lender;
(vii) release one or more Guarantors if such release is in respect of
a material portion of the value of the Guaranties to the Lender Parties,
without the written consent of each Lender;
(viii) as to any Facility, impose any greater restriction on the
ability of any Lender under such Facility to assign any of its rights or
obligations hereunder without the written consent of Lenders having at
least a majority of the sum of (i) the unused portion, if any, of the
Commitments under such Facility plus (ii) the total outstanding amount of
the Advances under such Facility, in each case, at such time then in
effect. For purposes of this clause, the aggregate amount of each Lender's
risk participation and funded participation in L/C Disbursements shall be
deemed to be held by such Lender;
(ix) amend Section 3.02 or waive any of the express conditions stated
therein without the written consent of the Required Revolving Credit
Lenders;
(x) modify the definition of "Interest Period" so as to permit the
duration of Interest Periods to be in excess of six months without regard
to availability thereof to all Lenders, without the written consent of each
Lender directly affected thereby; or
(xi) change Section 2.01(d) so as to result in the expiration date of
any Letter of Credit being, or to permit the expiration date of any Letter
of Credit to be, after the Termination Date in respect of the Revolving
Credit Facility, without the written consent of each Revolving Credit
Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank and the Swing Line Bank, in addition to
the Lenders required above, adversely affect the rights or duties of the Issuing
Bank or the Swing Line Bank, as the case may be, under this Agreement or any
Letter of Credit Agreement relating to any Letter of Credit issued or to be
issued by the Issuing Bank; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, adversely affect the rights or duties of, or any fees or other
amounts payable to, the Administrative Agent under this Agreement or any other
Loan Document; (iii) Section 9.07(k) may not be amended, waived or otherwise
modified without the consent of each Granting Lender all or any part of whose
Advances are being funded by an SPC at the time of such amendment, waiver or
other modification; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
(b) The Borrower shall be permitted to replace any Lender Party that
becomes a "Non-Consenting Lender" (as defined below); provided that (i) such
replacement does not conflict with any requirement of law, (ii) no Event of
Default shall have occurred and be continuing at the time of such
replacement, (iii) the replacement financial institution shall purchase, at par,
all Advances and other amounts owing to such replaced Lender on or prior to the
date of replacement, (iv) the Borrower shall be liable to such replaced Lender
under Section 9.04(c) if any Eurodollar Rate Advance owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (v) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 9.07, and (vii) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced 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 agreement of all Lenders in accordance with the terms of this
Section 9.01 or all the Lenders with respect to a certain class of the Loans and
(z) more than 66 2/3% of such Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment shall be deemed a "Non-Consenting Lender".
(c) Notwithstanding the foregoing, subject to the Intercreditor
Agreement, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower (i) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Advances
and Revolving Credit Advances and the accrued interest and fees in respect
thereof and (ii) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders and Majority Facility
Lenders.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including fax or e-mail
communication) and mailed, faxed or delivered, if to any Loan Party at the
address specified below its name on the signature pages hereof or of a Security
Agreement Supplement delivered pursuant to Section 5.01(j) or (k); if to any
Initial Lender Party, the Swing Line Bank or the Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Administrative Agent or the Collateral Agent, at its address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇/▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Syndication Agency Services, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, Telephone: ▇▇▇-▇▇▇-▇▇▇▇,
with a copy to: Wachovia Bank, National Association, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇ / Agency Management,
Telephone: ▇▇▇-▇▇▇-▇▇▇▇, Telecopier: 704-383-1625; or, as to any party, at such
other address as shall be designated by such party in a written notice to the
other parties. All such notices and other communications shall, when mailed,
faxed or e-mailed, be effective when deposited in the mails or transmitted by
fax or e-mail, except that notices and communications to any Agent pursuant to
Article II, III or VII shall not be effective until received by such Agent.
Delivery by fax of an executed counterpart of a signature page to any amendment
or waiver of any provision of this Agreement or the Notes or of any Exhibit
hereto to be executed and delivered hereunder shall be effective as delivery of
an original executed counterpart thereof.
(b) The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Loan Documents,
including, without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but
excluding any such communication that (i) relates to a request for a new, or a
Conversion of an existing, Borrowing or other Extension of Credit (including any
election of an interest rate or interest period relating thereto),
(ii) relates to the payment of any principal or other amount due under this
Agreement prior to the scheduled date therefor, (iii) provides notice of any
Default or (iv) is required to be delivered to satisfy any condition precedent
to the effectiveness of this Agreement and/or any Borrowing or other Extension
of Credit thereunder (all such non-excluded communications being referred to
herein collectively as "Communications"), by faxing the Communications to a
telecopier number specified by the Administrative Agent to the Borrower or by
delivering the Communications electronically in accordance with Section 5.03(f).
In addition, the Borrower agrees to continue to provide the Communications to
the Administrative Agent in the manner specified in the Loan Documents but only
to the extent requested by the Administrative Agent. The Borrower further agrees
that the Administrative Agent may make the Communications available to the
Lenders by posting the Communications on SyndTrak or a substantially similar
electronic transmission system (the "PLATFORM").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT
PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL
THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES
(COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER
PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE
BORROWER'S OR THE ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH
THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN
A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its telecopier number set forth
above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents. Each Lender Party
agrees that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender Party for purposes of the Loan
Documents. Each Lender Party agrees (i) to notify the Administrative Agent in
writing (including by fax) from time to time of such Lender Party's E-mail
address to which the foregoing notice may be sent by electronic transmission and
(ii) that the foregoing notice may be sent to such E-mail address. Nothing
herein shall prejudice the right of the Administrative Agent or any Lender Party
to give any notice or other communication pursuant to any Loan Document in any
other manner specified in such Loan Document.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Loan Parties agree to pay from
time to time on demand (i) all reasonable out-of-pocket costs and expenses of
each Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of, or any consent or waiver under
(in each case whether or not effective), the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses, provided that so long as no
Event of Default has occurred and is continuing, any third party auditors,
appraisers or other consultants are engaged with the Borrower's consent, not to
be unreasonably withheld, and (B) the reasonable fees and expenses of counsel
for each Agent with respect thereto, with respect to advising such Agent as to
its rights and responsibilities, or the perfection, protection, interpretation
or preservation of rights or interests, under the Loan Documents, with respect
to negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and
each Lender Party in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender Party with respect thereto).
(b) The Loan Parties agree to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"INDEMNIFIED PARTY") from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel and settlement costs) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition) by the Borrower or any of its
Subsidiaries or Affiliates of all or any portion of the Equity Interests in or
Debt securities or substantially all of the assets of the Company or any of its
Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials on
any property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 9.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
Loan Party, its directors, shareholders or creditors or an Indemnified Party or
any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated. Each Loan Party also
agrees that, without the prior written consent of the applicable Indemnified
Party (not to be unreasonably withheld), neither it nor any of its Affiliates
will settle, compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding in respect of which indemnification
has been or could be sought under the indemnification provisions hereof (whether
or not any Indemnified Party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent (a)
includes a full and unconditional written release of each Indemnified Party from
all liability arising out of such claim, action or proceeding and (b) does not
include any statement as to or an admission of fault, culpability or failure to
act by or on behalf of any Indemnified Party.
In the event that an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against any Loan
Party or any of its Subsidiaries or Affiliates in which such Indemnified Party
is not named as a defendant, such Loan Party agrees to reimburse such
Indemnified Party for all reasonable expenses incurred by it in connection with
such Indemnified Party's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and expenses of its legal
counsel. Each Loan Party also agrees not to assert any claim against any Agent,
any Lender Party or any of their Affiliates, or any of their respective
officers, directors, employees, agents and advisors, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Transaction Documents or any of
the transactions contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06 or 2.10(d), acceleration of
the maturity of the Advances pursuant to Section 6.01 or for any other reason,
or by an Eligible Assignee to a Lender Party other than on the last day of the
Interest Period for such Advance upon an assignment of rights and obligations
under this Agreement pursuant to Section 9.07 as a result of a demand by the
Borrower pursuant to Section 2.10(e), or if the Borrower fails to make any
payment or prepayment of an Advance for which a notice of prepayment has been
given or that is otherwise required to be made, whether pursuant to Section
2.04, 2.06 or 6.01 or otherwise, or if the Borrower fails to borrow or continue,
or Convert into, a Eurodollar Rate Advance after the Borrower has given a notice
therefor hereunder, the Borrower shall, upon demand by such Lender Party (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party any amounts required to compensate
such Lender Party for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion or such failure to
pay or prepay, or to borrow, continue or Convert, as the case may be, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Loan Parties contained in Sections 2.10 and 2.12 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01 or otherwise with the consent of the Required
Lenders, each Agent and each Lender Party and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise 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 Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement and although such Obligations
may be unmatured. Each Agent and each Lender Party agrees promptly to
notify the Borrower after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender Party and their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by each Loan Party and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of each Loan Party, each Agent and each Lender Party
and their respective successors and assigns, except that no Loan Party shall
have the right to assign its rights or obligations hereunder or any interest
herein (other than pursuant to transactions permitted by Section 5.02(d))
without the prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may, and so
long as no Default shall have occurred and be continuing, if demanded by the
Borrower pursuant to Section 2.10(e) or 9.01(b) upon at least five Business
Days' notice to such Lender and the Administrative Agent will, assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances (including, for the
purposes of this Section 9.07(a), participations in Letters of Credit and in
Swing Line Advances) owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of any or all
Facilities (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date), (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments being assigned to such
Eligible Assignee pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $1,000,000 (or such lesser amount as shall be approved by the
Administrative Agent) under each Facility for which a Commitment is being
assigned, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all of the assigning Lender's rights and obligations under
this Agreement with respect to the Advances or the Commitment assigned, except
that this clause (iii) shall not (x) apply to rights in respect of Swing Line
Advances or (y) prohibit any Lender from assigning all or a portion of its
rights and obligations among separate Facilities on a non-pro rata basis, (iv)
each such assignment shall be to an Eligible Assignee, (v) each such assignment
made as a result of a demand by the Borrower pursuant to Section 2.10(e) or
9.01(b) shall be arranged by the Borrower after consultation with the
Administrative Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (vi) no Lender shall
be obligated to make any such assignment as a result of a demand by the Borrower
pursuant to Section 2.10(e) or 9.01(b) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement, (vii) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and (viii) the Administrative
Agent shall have received a processing and recordation fee of $3,500 (which fee,
in the event such assignment is made as a result of a demand by the Borrower
pursuant to Section 2.10(e) or
9.01(b), shall be payable by the Borrower and/or the relevant Eligible
Assignee); provided that only one such fee shall be payable in connection with
simultaneous assignments by or to two or more related Approved Funds.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender, the Swing Line Bank or
the Issuing Bank, as the case may be, hereunder and (ii) the Lender Party
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (other than its rights under Sections 2.10, 2.12 and 9.04 to the
extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender Party's rights and obligations under this Agreement, such
Lender Party shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or any other instrument or document furnished
pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 4.01 or delivered pursuant to Section 5.03 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender,
Swing Line Bank or the Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents
and the Lender Parties may treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes (if any)
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes (if any) a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under each Facility
pursuant to such Assignment and Acceptance and, if any assigning Lender that had
a Note or Notes prior to such Assignment and Acceptance has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment in respect of such
Facility retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A-1
or A-2 hereto, as the case may be.
(f) The Issuing Bank may assign all of its rights and obligations
under the undrawn portion of its Letter of Credit Commitment at any time;
provided, however, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances (including such
Lender's participations in Letter of Credit Advances and/or Swing Line Advances)
owing to it and the Note or Notes (if any) held by it); provided, however, that
(i) such Lender Party's obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Loan Parties, the Agents and
the other Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party's rights and obligations under
this Agreement and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, postpone any date fixed
for any payment of principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral or the
value of the Guaranties. The Borrower agrees that each participant shall be
entitled to the benefits of Sections 2.10, 2.11, 2.12, 8.04 and 9.04(b) to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (a) of this Section. To the extent permitted by law, each
participant also shall be entitled to the benefits of Section 9.05 as though it
were a Lender, provided such participant agrees to be subject to Section 2.13 as
though it were a Lender. A participant shall not be entitled to receive any
greater payment under Sections 2.10 and 2.12 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
participant, unless the sale of the participation to such participant is made
with the Borrower's prior written consent.
(h) Any Lender Party may, in connection with any assignment, pledge or
participation or proposed assignment, pledge or participation pursuant to this
Section 9.07, disclose to the assignee or
participant or proposed assignee or participant any information relating to the
Loan Parties furnished to such Lender Party by or on behalf of the Loan Parties;
provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender
Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement and the other Loan Documents
(including, without limitation, the Advances owing to it and the Note or Notes
(if any) held by it) in favor of any Federal Reserve Bank.
(j) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Advances owing to it and any Note or Notes held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided, that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 9.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any
Lender Party (a "GRANTING LENDER") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower (an "SPC") the option to provide
all or any part of any Advance that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement, provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Advance, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by the Granting Lender. Each party hereto hereby agrees
that (i) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender Party would be liable, (ii) no SPC shall
be entitled to the benefits of Sections 2.10 and 2.12 (or any other increased
costs protection provision) and (iii) the Granting Lender shall for all
purposes, including, without limitation, the approval of any amendment or waiver
of any provision of any Loan Document, remain the Lender Party of record
hereunder. In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion
of its interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection (k)
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Advances are being funded by any SPC at the time of
such amendment.
(l) Notwithstanding anything to the contrary contained herein, if at
any time Wachovia assigns all of its Commitments and Advances pursuant to
Section 9.07(a), Wachovia may, (i) upon 30 days' notice to the Loan Parties and
the Lenders, resign as Issuing Bank and/or (ii) upon 30 days' notice to the Loan
Parties, resign as Swing Line Bank. In the event of any such resignation as
Issuing Bank or
Swing Line Bank, the Loan Parties shall be entitled to appoint from among the
Lenders a successor Issuing Bank or Swing Line Bank hereunder; provided,
however, that no failure by the Loan Parties to appoint any such successor shall
affect the resignation of Wachovia as Issuing Bank or Swing Line Bank, as the
case may be. If Wachovia resigns as Issuing Bank, it shall retain all the rights
and obligations of the Issuing Bank hereunder with respect to all Letter of
Credit Advances outstanding as of the effective date of its resignation as
Issuing Bank and all Letter of Credit Advances with respect thereto (including
the right to require the Lenders to make Base Rate Advances or fund risk
participations in unreimbursed amounts pursuant to Section 2.03). If Wachovia
resigns as Swing Line Bank, it shall retain all the rights of the Swing Line
Bank provided for hereunder with respect to Swing Line Advances made by it and
outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Advances or fund risk participations in
outstanding Swing Line Advances pursuant to Section 2.02.
SECTION 9.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 9.09. No Liability of the Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure, other than as a result of
compliance by the Issuing Bank with any order or process of any court, to make
lawful payment under a Letter of Credit after the presentation to it of a draft
and certificates strictly complying with the terms and conditions of the Letter
of Credit. In furtherance and not in limitation of the foregoing, the Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.10. Confidentiality. Neither any Agent nor any Lender Party shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
(including the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party, (e) in connection with any litigation or proceeding to which
such
Agent or such Lender Party or any of its Affiliates may be a party or (f) in
connection with the exercise of any right or remedy under this Agreement or any
other Loan Document.
SECTION 9.11. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 9.12. Patriot Act Notice. Each Lender Party, and the Administrative
Agent (for itself and not on behalf of any Lender), hereby notifies the Loan
Parties that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Loan Party in accordance with the Patriot Act. The
Borrower shall, and shall cause each of its Subsidiaries to, provide such
information and take such actions as are reasonably requested by the
Administrative Agent or any Lender Party in order to assist the Administrative
Agent and the Lender Parties in maintaining compliance with the Patriot Act.
SECTION 9.13. Jurisdiction, Etc. (a) EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE
UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM
ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, 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 ANY SUCH NEW YORK STATE
COURT OR, TO THE FULLEST 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 ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS IN ANY NEW YORK STATE OR FEDERAL COURT. 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.
SECTION 9.14. GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.15. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.15.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
OPEN SOLUTIONS INC.,
as Borrower
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
HUSKY ACQUISITION CORPORATION,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MAXXAR CORPORATION,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OPEN SOLUTIONS RDS TECHNOLOGIES, INC.,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE:MEMBER DATA SERVICES, INC.,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WILDCAT ACQUISITION CORP.,
as a Guarantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agents and Initial Lenders:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
Collateral Agent, Initial Issuing
Bank Initial Swing Line Bank and
Initial Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
COMMERCE BANK, N.A.,
as an Initial Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as an Initial Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ BANK, NATIONAL ASSOCIATION,
as an Initial Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
OMITTED SCHEDULES
Pursuant to Item 601(b)(2) of Regulation S-K promulgated by the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, Open Solutions
Inc. (the "Company") has, with respect to the First Lien Senior Secured Credit
Agreement, dated as of March 3, 2006, among the Company, the Guarantors named
therein, the Swing Line Bank and Issuing Bank, each named therein, the lending
institutions named therein, the Administrative Agent and the other parties
thereto, omitted to file the schedules listed in the table of contents herewith.
These schedules will be supplementally furnished to the Commission upon request.