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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of October 21, 2002,
among
ANTEON INTERNATIONAL CORPORATION,
ANTEON CORPORATION,
THE LENDERS NAMED HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
CITIZENS BANK OF PENNSYLVANIA,
as Collateral Agent
---------------------------
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Sole Bookrunner
CITIZENS BANK OF PENNSYLVANIA,
as Syndication Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................2
SECTION 1.02. Terms Generally...............................................26
SECTION 1.03. Classification of Loans and Borrowings........................27
SECTION 1.04. Joint and Several Obligations.................................27
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................27
SECTION 2.02. Loans..........................................................28
SECTION 2.03. Borrowing Procedure............................................29
SECTION 2.04. Evidence of Debt; Repayment of Loans...........................30
SECTION 2.05. Fees...........................................................30
SECTION 2.06. Interest on Loans..............................................31
SECTION 2.07. Default Interest...............................................32
SECTION 2.08. Alternate Rate of Interest.....................................32
SECTION 2.09. Termination and Reduction of Commitments.......................32
SECTION 2.10. Conversion and Continuation of Borrowings.....................33
SECTION 2.11. Repayment of Term Borrowings...................................34
SECTION 2.12. Prepayment.....................................................35
SECTION 2.13. Mandatory Prepayments..........................................35
SECTION 2.14. Reserve Requirements; Change in Circumstances..................37
SECTION 2.15. Change in Legality.............................................38
SECTION 2.16. Indemnity......................................................39
SECTION 2.17. Pro Rata Treatment.............................................39
SECTION 2.18. Sharing of Setoffs.............................................39
SECTION 2.19. Payments.......................................................40
SECTION 2.20. Taxes..........................................................40
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate.....................................................................42
SECTION 2.22. Swingline Loans................................................43
SECTION 2.23. Letters of Credit..............................................44
SECTION 2.24. Increase in Term Loan Commitments..............................48
SECTION 2.25. ...............................................................49
Increase in Revolving Credit Commitments.....................................49
SECTION 2.26. Extension of Revolving Credit Maturity Date....................50
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers...........................................51
SECTION 3.02. Authorization..................................................51
SECTION 3.03. Enforceability.................................................51
SECTION 3.04. Governmental Approvals; Contracts..............................52
SECTION 3.05. Financial Statements...........................................52
SECTION 3.06. No Material Adverse Change.....................................53
SECTION 3.07. Title to Properties; Possession Under Leases...................53
SECTION 3.08. Subsidiaries...................................................53
SECTION 3.09. Litigation; Compliance with Laws...............................53
SECTION 3.10. Agreements.....................................................53
SECTION 3.11. Federal Reserve Regulations....................................53
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.....53
SECTION 3.13. Use of Proceeds................................................54
SECTION 3.14. Tax Returns....................................................54
SECTION 3.15. No Material Misstatements......................................54
SECTION 3.16. Employee Benefit Plans.........................................54
SECTION 3.17. Environmental Matters..........................................55
SECTION 3.18. Insurance......................................................55
SECTION 3.19. Security Documents.............................................55
SECTION 3.20. Location of Real Property......................................56
SECTION 3.21. Labor Matters..................................................56
SECTION 3.22. Solvency.......................................................56
SECTION 3.23. Ranking........................................................57
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events..............................................57
SECTION 4.02. First Credit Event.............................................58
SECTION 4.03. Tranche B Funding Date.........................................59
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties...........................62
SECTION 5.02. Insurance......................................................62
SECTION 5.03. Obligations and Taxes..........................................63
SECTION 5.04. Financial Statements, Reports, etc.............................63
SECTION 5.05. Litigation and Other Notices...................................66
SECTION 5.06. Employee Benefits..............................................66
SECTION 5.07. Maintaining Records; Access to Properties and Inspections......66
SECTION 5.08. Use of Proceeds................................................66
SECTION 5.09. Compliance with Environmental Laws.............................66
SECTION 5.10. Preparation of Environmental Reports...........................67
SECTION 5.11. Audits.........................................................67
SECTION 5.12. Further Assurances.............................................67
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness..................................................68
SECTION 6.02. Liens.........................................................69
SECTION 6.03. Sale and Lease-Back Transactions..............................70
SECTION 6.04. Investments, Loans and Advances...............................71
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.....73
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends...............................................73
SECTION 6.07. Transactions with Affiliates..................................74
SECTION 6.08. Capital Expenditures..........................................75
SECTION 6.09. Interest Coverage Ratio.......................................75
SECTION 6.10. Fixed Charge Coverage Ratio...................................75
SECTION 6.11. Maximum Leverage Ratio........................................75
SECTION 6.12. Senior Leverage Ratio.........................................75
SECTION 6.13. [Intentionally Omitted].......................................75
SECTION 6.14. Limitation on Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-laws and Certain Other
Agreements, etc.............................................................75
SECTION 6.15. Limitation on Creation of Subsidiaries........................76
SECTION 6.16. Business......................................................76
SECTION 6.17. Designated Senior Indebtedness................................76
SECTION 6.18. Fiscal Year...................................................76
SECTION 6.19. Maintenance of Accounts.......................................77
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.......................................................81
SECTION 9.02. Survival of Agreement.........................................82
SECTION 9.03. Binding Effect................................................82
SECTION 9.04. Successors and Assigns........................................82
SECTION 9.05. Expenses; Indemnity...........................................86
SECTION 9.06. Right of Setoff...............................................87
SECTION 9.07. Applicable Law................................................87
SECTION 9.08. Waivers; Amendment............................................87
SECTION 9.09. Interest Rate Limitation......................................88
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SECTION 9.10. Entire Agreement..............................................89
SECTION 9.11. WAIVER OF JURY TRIAL..........................................89
SECTION 9.12. Severability..................................................89
SECTION 9.13. Counterparts..................................................89
SECTION 9.14. Headings......................................................90
SECTION 9.15. Jurisdiction; Consent to Service of Process...................90
SECTION 9.16. Confidentiality...............................................90
Schedule 1.01(a) Existing Letters of Credit Schedule 1.01(b) Subsidiary
Guarantors Schedule 2.01 Lenders and Commitments Schedule 3.04 Government
Contracts Schedule 3.08 Subsidiaries Schedule 3.09 Litigation Schedule 3.17
Environmental Matters Schedule 3.18 Insurance Schedule 3.19(b) UCC Filing
Offices Schedule 3.20 Real Property Owned In Fee Schedule 4.03(b) Other Local
Counsel Schedule 4.03(f) Foreign Subsidiary Pledged Stock
Schedule 6.01 Outstanding Indebtedness on Closing Date
Schedule 6.02 Liens Existing on Closing Date
Schedule 6.04(m) Existing Investments
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Amended and Restated Indemnity, Subrogation and
Contribution Agreement
Exhibit E Form of Amended and Restated Pledge Agreement
Exhibit F Form of Amended and Restated Security Agreement
Exhibit G Form of Amended and Restated Subsidiary Guarantee Agreement
Exhibit H-1 Form of Restatement Date Opinion of ▇▇▇▇, Weiss, Rifkind,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit H-2 Form of Restatement Date Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
General Counsel of the Borrowers
Exhibit H-3 Form of Tranche B Funding Date Opinion of ▇▇▇▇, Weiss,
Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit H-4 Form of Tranche B Funding Date Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., General Counsel of the Borrowers
Exhibit H-5 Form of Tranche B Funding Date Opinion of Local Counsel
Exhibit I Form of Compliance Certificate
Exhibit J Form of Borrowing Base/Non-Default Certificate
Exhibit K Form of Subordination Provisions
Exhibit L Form of Solvency Certificate
Exhibit M Form of Acknowledgment, Waiver and Consent of Minority Owner
Exhibit N Form of Perfection Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 21, 2002,
among ANTEON INTERNATIONAL CORPORATION, a Delaware corporation (as the successor
by merger to the Borrower under the Existing Credit Agreement (as defined
below), the "Borrower"), ANTEON CORPORATION, a Virginia corporation ("Anteon"
and, together with the Borrower, the "Borrowers"), the Lenders (as defined in
Article I), CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its Cayman Islands branch, as issuing bank (in such
capacity, the "Issuing Bank"), and as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders, and CITIZENS BANK OF PENNSYLVANIA
("Citizens Bank"), as swingline lender (in such capacity, the "Swingline
Lender"), and as collateral agent (in such capacity, the "Collateral Agent") for
the Lenders.
The Borrower, the Existing Lenders (such term and each other
capitalized term used but not defined herein having the meaning given it in
Article I), the Issuing Bank, the Administrative Agent, the Swingline Lender and
the Collateral Agent are parties to the Existing Credit Agreement, whereunder
(a) the Existing Lenders extended credit and/or agreed to extend credit in the
form of (i) Tranche A Term Loans on the Closing Date and (ii) Revolving Loans at
any time and from time to time prior to the Revolving Credit Maturity Date, (b)
the Swingline Lender agreed to extend credit, at any time and from time to time
prior to the Revolving Credit Maturity Date, in the form of Swingline Loans, and
(c) the Issuing Bank agreed to issue Letters of Credit.
Pursuant to the Purchase Agreement, the Borrower intends to acquire
(the "Acquisition") all the issued and outstanding Equity Interests of a company
identified to the Agents prior to the Restatement Date (the "Target") for
aggregate consideration not to exceed $90,000,000 in cash, subject to adjustment
as provided in the Purchase Agreement (the "Cash Consideration").
The Borrowers have requested the Tranche B Lenders to extend credit in
the form of Tranche B Term Loans on or after the Acquisition Closing Date, in an
aggregate principal amount not in excess of $100,000,000. The Borrowers have
also requested that the Total Revolving Credit Commitment be increased after the
Restatement Date to an aggregate amount not to exceed $200,000,000.
The proceeds of the Tranche B Term Loans are to be used solely (a) to
pay (or to refinance Revolving Loans used to pay) the Cash Consideration, (b) to
pay related fees and expenses and (c) for general corporate purposes. The
proceeds of the Revolving Loans and the Swingline Loans are to be used solely
for general corporate purposes, including Permitted Acquisitions. Letters of
Credit are to be used solely to support payment obligations, performance
guarantees and bid bonds incurred by the Borrowers and their Subsidiaries in the
conduct of their business. Proceeds of any Incremental Term Loans are to be used
solely to finance Permitted Acquisitions and to pay related fees and expenses.
The Existing Lenders are willing to continue the Tranche A Term Loans
and Revolving Loans as existing on the Restatement Date, and to continue to
extend commitments to make Revolving Loans; the Swingline Lender is willing to
continue the Swingline Loans as existing on the Restatement Date, and to
continue to extend commitments to make Swingline Loans; the Issuing Bank is
willing to continue to issue
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Letters of Credit; and the Tranche B Lenders are willing to make the Tranche B
Term Loans on or after the Acquisition Closing Date, in each case on the terms
and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Account" shall mean any right to payment for goods sold or leased or
for services rendered, whether or not earned by performance.
"Account Debtor" shall mean, with respect to any Account, the obligor
with respect to such Account.
"Acquisition" shall have the meaning given to such term in the preamble
to this Agreement.
"Acquisition Closing Date" shall mean the date on which the Acquisition
shall have been consummated.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns 10%
or more of any class of Equity Interests of the person specified or that is an
officer or director of the person specified.
"Agents" shall mean the Administrative Agent and the Collateral Agent.
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"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day less 1/4 of 1% and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the preceding sentence until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively. The term "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate for dollars in effect at its principal
office in New York City; each change in the Prime Rate shall be effective on the
date such change is publicly announced as being effective. The term "Federal
Funds Effective Rate" shall mean, for any day, 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 on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Amendment Fee" shall have the meaning assigned to such term in Section
2.05(d).
"Amendment No. 6" shall mean Amendment No. 6, Waiver and Agreement
dated as of February 1, 2002, to the Existing Credit Agreement.
"Applicable Percentage" shall mean (except as otherwise provided in the
Incremental Term Loan Assumption Agreement with respect to any Incremental Term
Loan), for any day, (a) with respect to any Eurodollar Tranche B Term Loan,
3.25%, (b) with respect to any ABR Tranche B Term Loan, 2.25%, and (c) with
respect to any Eurodollar Tranche A Term Loan, ABR Tranche A Term Loan,
Eurodollar Revolving Loan or ABR Revolving Loan, or with respect to the
Commitment Fees, as the case may be, the applicable percentage set forth below
under the caption "Eurodollar Tranche A/Revolving Spread", "ABR Tranche
A/Revolving Spread" or "Fee Percentage", as the case may be, based upon the
Leverage Ratio as of the relevant date of determination (provided, that if
financial statements and a certificate with respect to the fourth fiscal quarter
in any year satisfying the requirements of paragraphs (b) and (g) of Section
5.04 shall be delivered to the Administrative Agent within 60 days after the end
of such fiscal quarter, then from the second Business Day following the date on
which such financial statements and certificate are so delivered until the
relevant date of determination following such fiscal quarter end the Applicable
Percentage shall be based upon the Leverage Ratio as of such fiscal quarter end,
as determined on the basis of such financial statements):
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Eurodollar ABR
Tranche A/ Tranche
A/ Revolving Revolving Fee
Leverage Ratio Spread Spread Percentage
Category 1 3.25% 2.25% 0.500%
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Greater than 4.75
to 1.00
Category 2 3.00% 2.00% 0.500%
----------
Greater than 4.25
to 1.00 but less
than or equal to
4.75 to 1.00
Category 3 2.75% 1.75% 0.375%
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Greater than 3.50
to 1.00 but less
than or equal to 4.25
to 1.00
Category 4 2.50% 1.50% 0.375%
----------
Greater than 3.00
to 1.00 but less
than or equal to 3.50
to 1.00
---------------------- ------------ ----------- --------------
Category 5 2.25% 1.25% 0.375%
----------
Less than or equal
to 3.00 to 1.00
====================== =========== =========== ===============
Except as set forth in the proviso immediately preceding the table
above, each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans, Commitments and
Letters of Credit outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.04(a) or (b) and Section 5.04(g), respectively, indicating such change
until the date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change; provided, however,
that (a) at any time during which the Borrower has failed to deliver when due
the financial statements and certificates required by Section 5.04(a) or (b) and
Section 5.04(g), respectively, or (b) at the option of the Agents or upon the
request of the Required Lenders, at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be in
Category 1 for purposes of determining the Applicable Percentage.
Notwithstanding the foregoing, the Applicable Percentage with respect to any
Eurodollar Tranche B Term Loan or ABR Tranche B Term Loan shall, on and after
the effective date of any Incremental Term Loan Assumption Agreement and so long
as any Other Term Loans shall remain outstanding, automatically be increased to
the extent required, if any, to ensure that the interest rate spreads of such
Other Term Loans do not exceed the Applicable
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Percentage for Eurodollar Tranche B Term Loans or ABR Tranche B Term Loans, as
the case may be, by more than 1/2 of 1%.
"Approved Margin Stock" shall have the meaning assigned to such term in
Section 6.04(k).
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger, casualty, condemnation or otherwise) by the Borrower or any of the
Subsidiaries to any person other than the Borrower or any Subsidiary Guarantor
of (a) any Equity Interests of any of the Subsidiaries (other than directors'
qualifying shares) or (b) any other assets of the Borrower or any of the
Subsidiaries (other than (i) inventory, excess, damaged, obsolete or worn out
assets, scrap and Permitted Investments, in each case disposed of in the
ordinary course of business, (ii) dispositions between or among Foreign
Subsidiaries, (iii) dispositions of Approved Margin Stock or (iv) dispositions
of Third Party Government Receivables pursuant to any Third Party Financing),
provided that any asset sale or series of related asset sales described in
clause (b) above having a value not in excess of $250,000 shall be deemed not to
be an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Assignment of Claims Act" shall mean the Assignment of Claims Act of
1940, as amended from time to time.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower Common Stock" shall mean the Common Stock, par value $0.01
per share, of the Borrower.
"Borrower's Portion of Excess Cash Flow" shall mean, at any date of
determination, the cumulative amount of Excess Cash Flow for all preceding full
fiscal years of the Borrower commencing on or after January 1, 2002, and ending
prior to the date of determination that (a) was not or is not required to be
applied to the prepayment of Term Loans as described in Section 2.13(e), and (b)
has not been utilized on or prior to the date of determination (i) to optionally
prepay, repurchase, redeem, defease or otherwise retire any Senior Subordinated
Notes or (ii) to repurchase Borrower Common Stock.
"Borrowing" shall mean a group of Loans of a single Type made,
converted or continued by the Lenders on a single date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Borrowing Base" shall mean an amount equal to the sum, without
duplication, of:
(a) 90% of the Net Value (as defined below) of Eligible
Billed Borrowing Base Receivables representing amounts due and
owing from Domestic Account Debtors that are outstanding less
than 91 days from the date of original invoice, plus
(b) 70% of the Net Value of Eligible Billed Borrowing Base
Receivables representing amounts due and owing from Foreign
Account Debtors that are not fully
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supported by a letter of credit, guarantees, bonds or similar credit
support issued by a financial institution in form and substance
reasonably acceptable to the Agents and that are outstanding less than
61 days from the date of original invoice, plus
(c) 90% of the Net Value of Eligible Billed Borrowing Base
Receivables that represent amounts due and owing from Foreign
Account Debtors that are fully supported by letters of credit,
guarantees, bonds or similar credit support issued by financial
institutions in form and substance reasonably acceptable to the
Agents and that are outstanding less than 91 days from the date
of original invoice, plus
(d) 75% of the Net Value of Eligible Unbilled Borrowing Base
Receivables; plus
(e) the Eligible Margin Stock Amount.
As used herein, the "Net Value" of an Eligible Billed Borrowing Base Receivable
or an Eligible Unbilled Borrowing Base Receivable shall be its face amount, net
of any discount for prompt payment (and net of any other amount representing
payment of finance charges, late charges or interest (however denominated)), and
net of any portion thereof that constitutes payment of sales, use or other
taxes. The Borrowing Base shall be computed from time to time in accordance with
Section 5.04(h). The Borrowing Base at any time in effect shall be determined by
reference to the Borrowing Base/Non-Default Certificate most recently delivered
hereunder.
"Borrowing Base/Non-Default Certificate" shall have the meaning
assigned to such term in Section 5.04(h).
"Borrowing Request" shall mean a request by the Borrowers in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent or the
Swingline Lender, as applicable.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period and with respect to
any person, all expenditures during such period by such person that would be
classified as capital expenditures in accordance with GAAP or are made in
property that is the subject of a Synthetic Lease to which such person becomes a
lessee party during such period, but excluding any such expenditure made (a) to
restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such
property, to the extent such expenditure is made with insurance proceeds,
condemnation awards or indemnification or damage recovery proceeds relating to
any such damage, loss, destruction or condemnation, (b) with proceeds from the
sale or exchange of property to the extent utilized to purchase functionally
equivalent property or equipment, (c) as the purchase price of any Permitted
Acquisition or (d) with the proceeds of a substantially contemporaneous Equity
Issuance.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to
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use) real or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a balance sheet
of such person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change in Control" shall mean (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Permitted Investors, of Equity Interests representing (i) a
greater percentage of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests in the Borrower then held, directly or
indirectly, beneficially and of record, by the Permitted Investors and (ii) at
least 15% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests in the Borrower; (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower by
persons who were neither (i) nominated by the board of directors of the Borrower
or any Permitted Investor nor (ii) appointed by the directors so nominated; or
(c) the occurrence of a "Change of Control" or similar event (however
denominated) under and as defined in the Senior Subordinated Note Documents or
any other Indebtedness of the Borrower or any Subsidiary in an aggregate
outstanding principal amount in excess of $10,000,000.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the Closing Date or (c) compliance by any Lender or the Issuing Bank (or,
for purposes of Section 2.14, by any lending office of such Lender or by such
Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Closing Date.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Other Term Loans or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Credit Commitment, Term Loan Commitment, Incremental Term Loan
Commitment in respect of Other Term Loans or Swingline Commitment.
"Closing Date" shall mean June 23, 1999.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document.
"Collateral Agent's Fee Letter" shall mean the Fee Letter dated April
29, 1999, between the Borrower and the Collateral Agent.
"Collateral Agent's Fees" shall have the meaning assigned to such term
in Section 2.05(b).
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
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"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Commitment Letter" shall mean the Commitment Letter dated October 15,
2002, among the Borrowers and Credit Suisse First Boston.
"Compliance Certificate" shall have the meaning assigned to such term
in Section 5.04(g).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated on or about November 2002, relating
to the Tranche B Term Loans.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Current Assets" shall mean, at any time, the consolidated current
assets (other than cash and Permitted Investments) of the Borrower and its
consolidated Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated current
liabilities of the Borrower and its consolidated Subsidiaries at such time, but
excluding, without duplication, (a) the current portion of any long-term
Indebtedness and (b) outstanding Revolving Loans and Swingline Loans.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Disability" shall mean, for purposes of Section 6.06(a), the
substantial inability to perform the employee's then present duties and
responsibilities by reason of any medically determinable physical or mental
impairment which can be expected to last for a period of not less than 6 months
in a 12-month period, or any substantially similar definition contained in any
stock option or stock repurchase agreement between the Borrower or any of its
Subsidiaries and any of their employees.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Account Debtor" shall mean an Account Debtor incorporated or
organized under the laws of, or with its principal place of business in, and any
Governmental Authority that is, the United States, any State thereof, any
municipality of any such State or the District of Columbia.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITDA" for any period shall mean Net Income for such period, to which
shall be added back (a) the Interest Expense of the Borrower and its
consolidated Subsidiaries for such period to the extent deducted in calculating
Net Income for such period, (b) all charges against income calculated in
accordance with GAAP for Federal, state, local and foreign income taxes and
assessments, including all interest, penalties and additions imposed with
9
respect to such amounts, of the Borrower and its consolidated Subsidiaries for
such period, to the extent deducted in calculating Net Income for such period,
(c) the aggregate depreciation expense of the Borrower and its consolidated
Subsidiaries for such period, (d) the aggregate amortization expense of the
Borrower and its consolidated Subsidiaries for such period, (e) Noncash
Nonrecurring Charges (only to the extent that such Noncash Nonrecurring Charges
do not exceed 25% of Net Income for such period), minus any noncash gain to the
extent included in determining Net Income, all as determined on a consolidated
basis in accordance with GAAP. Except for purposes of determining the Leverage
Ratio as that term is used in the definition of the term "Applicable Rate",
EBITDA for any period ending on or prior to December 31, 2002 shall be adjusted
by adding thereto (without duplication and only to the extent deducted in
calculating Net Income for such period) (i) the amount of the Termination Fee
(as defined in Amendment No. 6) actually paid during such period, (ii) fees paid
during such period in an aggregate amount not to exceed $3,000,000 and
associated with the early termination of Hedging Agreements as a result of the
transactions contemplated by Amendment No. 6, (iii) premiums paid during such
period in an aggregate amount not to exceed $4,200,000 in respect of the
redemption and repurchases of Senior Subordinated Notes as permitted by
Amendment No. 6, (iv) charges during such period in respect of unamortized fees
in respect of the Loans and (v) other non- recurring charges during such period
in connection with the Recapitalization (as defined in Amendment No. 6) in an
aggregate amount not to exceed $1,000,000.
"Eligible Billed Borrowing Base Receivables" shall mean all rights to
payment due and to become due to the Borrower or any Subsidiary Guarantor that
(a) constitute an "account" as defined in the Uniform Commercial Code as in
effect in the applicable jurisdiction, (b) represent amounts due and owing (i)
for products actually delivered or services actually performed or rendered by or
on behalf of the Borrower or any Subsidiary Guarantor pursuant to a written
contract or written agreement now or hereafter entered into by the Borrower or
any Subsidiary Guarantor and a person that is not an Affiliate of the Borrower,
or (ii) as interim ▇▇▇▇▇▇▇▇ or progress payments in accordance with fixed price
contracts between the Borrower or any Subsidiary Guarantor and a person that is
not an Affiliate of the Borrower, (c) have been properly billed, (d) arise in
the ordinary course of the Loan Parties' business, (e) are due, owing and not
subject to any defense, setoff or counterclaim, except if the person that is the
obligor under any such account has disputed liability or made any claim of
setoff or counterclaim, only the portion of the account subject to such defense,
setoff or counterclaim shall be deemed an Ineligible Receivable, (f) are not
final invoices and (g) are not Ineligible Receivables.
"Eligible Margin Stock Amount" at any time, shall mean an amount equal
to 75% of the fair market value of any Approved Margin Stock pledged to the
Collateral Agent to secure the Obligations. For purposes of the foregoing, the
fair market value of any Approved Margin Stock on any date shall be the average
of the closing prices on the principal U.S. securities exchange on which such
Approved Margin Stock is traded for the period of 20 consecutive trading days
preceding the date of determination. In the event (x) any Approved Margin Stock
is not listed or traded on a securities exchange or (y) the fair market value of
any Approved Margin Stock cannot be determined in accordance with the preceding
sentence because closing prices for such Approved Margin Stock are not
available, the Agents may use any reasonable estimate of the market value of
such Approved Margin Stock as of the close of business on the Business Day
preceding the date of determination.
"Eligible Unbilled Borrowing Base Receivables" shall mean rights to
payment due and to become due to the Borrower or any Subsidiary Guarantor (a)
under Government Contracts or (b) under contracts with any other Account Debtor
that are approved by the
10
Agents from time to time (the "Approved Contracts"), that (i) constitute an
"account" as defined in the Uniform Commercial Code as in effect in the
applicable jurisdiction, (ii) in the case of Government Contracts, are eligible
to be billed to the Government in accordance with the applicable Government
Contract or are eligible to be billed to a prime contractor pursuant to a
subcontract under a contract between the prime contractor and the Government,
and in the case of Approved Contracts, are eligible to be billed to the Account
Debtor in accordance with the applicable Approved Contract, in any case within
30 days of the "as of " date of the applicable Borrowing Base/Non-Default
Certificate (with no additional performance required by any person, and no
condition to payment by the Government or prime contractor or Account Debtor, as
applicable, other than receipt of an appropriate invoice), (iii) have not been
billed to the Government or the prime contractor or Account Debtor under the
Approved Contract, as applicable, solely as a result of timing differences
between the date the revenue is recognized on the applicable Loan Party's books
and the date the invoice is actually rendered, (iv) represent revenue recognized
on the books of the Borrower or any Subsidiary Guarantor not more than 30 days
prior to the "as of" date of the applicable Borrowing Base/Non-Default
Certificate, (v) may, in accordance with GAAP, be included as current assets of
the Borrower or any Subsidiary Guarantor, even though such amounts have not been
billed to the Government or the prime contractor or Account Debtor under the
Approved Contract, as applicable, and (vi) are not Ineligible Receivables.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. ▇▇.▇▇. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. ▇▇.▇▇. 6901 et seq., the Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 U.S.C. ▇▇.▇▇. 1251 et seq., the Clean Air Act
of 1970, as amended 42 U.S.C. ▇▇.▇▇. 7401 et seq., the Toxic Substances Control
Act of 1976, 15 U.S.C. ▇▇.▇▇. 2601 et seq., the Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. ▇▇.▇▇. 651 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001 et seq., the
Safe Drinking Water Act of 1974, as amended, 42 U.S.C. ▇▇.▇▇. 300(f) et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 5101
11
et seq., and any similar or implementing state, local or foreign law, and all
amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a person.
"Equity Issuance" shall mean any issuance or sale by the Borrower or
any Subsidiary of any Equity Interests of the Borrower or any Subsidiary, as
applicable, or any obligations convertible into or exchangeable for, or giving
any person a right, option or warrant to acquire such Equity Interests or such
convertible or exchangeable obligations, except in each case for (a) any
issuance or sale to the Borrower or any Subsidiary, (b) any issuance of
directors' qualifying shares, and (c) sales or issuances of common stock of the
Borrower to management or employees of the Borrower or any Subsidiary under any
employee stock option or stock purchase plan or employee benefit plan in
existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability with respect to the withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by the Borrower or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; or (h)
any Foreign Benefit Event.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
12
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, of (i) EBITDA for such fiscal year and (ii) reductions to
noncash working capital of the Borrower and its consolidated Subsidiaries for
such fiscal year (i.e., the decrease, if any, in Current Assets minus Current
Liabilities from the beginning to the end of such fiscal year) over (b) the sum,
without duplication, of (i) the amount of any Tax Payments payable with respect
to such fiscal year, (ii) cash interest paid (net of cash interest received) by
the Borrower and its consolidated Subsidiaries during such fiscal year, (iii)
Capital Expenditures made in cash in accordance with Section 6.08 during such
fiscal year, except to the extent financed with the proceeds of Indebtedness,
casualty or condemnation proceeds, (iv) permanent repayments of Indebtedness
made by the Borrower and its consolidated Subsidiaries during such fiscal year,
but only to the extent that such prepayments by their terms cannot be reborrowed
or redrawn and do not occur in connection with a refinancing of all or any
portion of such Indebtedness and (v) additions to noncash working capital for
such fiscal year (i.e., the increase, if any, in Current Assets minus Current
Liabilities from the beginning to the end of such fiscal year); provided that to
the extent otherwise included therein, the Net Cash Proceeds of Asset Sales
shall be excluded from the calculation of Excess Cash Flow.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrowers hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrowers are located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrowers under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding tax
pursuant to Section 2.20(a).
"Existing Credit Agreement" shall mean the Credit Agreement dated as of
June 23, 1999, as amended, among the Borrower, Credit Suisse First Boston, as
issuing bank and as administrative agent, Citizens Bank, as syndication agent,
swingline lender and as collateral agent, and Deutsche Bank AG, New York Branch,
as documentation agent.
"Existing Lenders" shall mean the lenders under the Existing Credit
Agreement.
"Existing Letters of Credit" shall mean each Letter of Credit
previously issued for the account of the Borrower that is (a) outstanding on the
Restatement Date and (b) listed on Schedule 1.01(a).
"Fee Letters" shall mean (a) the Fee Letter dated October 15, 2002,
among the Borrowers and Credit Suisse First Boston and (b) the Fee Letter dated
March 7, 1999, between the Borrower and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the Collateral Agent's Fees, the L/C Participation Fees, the Issuing Bank Fees,
the Amendment Fees and the Incremental Revolving Credit Commitment Fees.
13
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such person.
"Fixed Charge Coverage Ratio" for any period shall mean the ratio of
(a) EBITDA plus the aggregate amount of all rent and lease payments made by the
Borrower and its consolidated Subsidiaries pursuant to operating leases minus
Capital Expenditures and Tax Payments for such period to (b) Fixed Charges for
such period.
"Fixed Charges" for any period shall mean, without duplication, the sum
of (a) Interest Expense (excluding amortization of deferred financing fees,
premiums or interest rate protection agreements and original issue discounts,
provided, however, that the aggregate amount of amortization excluded hereby
shall not exceed 5% of the aggregate amount of the financing giving rise to the
debt issuance costs associated with such amortization) for such period, plus (b)
the aggregate amount of all rent and lease payments made by the Borrower and its
consolidated Subsidiaries pursuant to operating leases for such period, plus (c)
scheduled payments (whether or not made) on long term Indebtedness (including
Capital Lease Obligations) of the Borrower and its consolidated Subsidiaries for
such period, all as determined on a consolidated basis in accordance with GAAP.
"Foreign Account Debtor" shall mean any Account Debtor that is not a
Domestic Account Debtor.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $2,500,000 (or the
equivalent thereof in another currency) by the Borrower or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by the Borrower or any of its
Subsidiaries, or the imposition on the Borrower or any of its Subsidiaries of
any fine, excise tax or penalty resulting from any noncompliance with any
applicable law, in each case in excess of $2,500,000 (or the equivalent thereof
in another currency).
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than the United States of America, each State thereof
and the District of Columbia.
"Foreign Pension Plan" shall mean any plan, fund (including any
superannuation fund) or other similar program established or maintained outside
the United States by the Borrower or any one or more of its Subsidiaries
primarily for the benefit of employees of the Borrower or such Subsidiaries
residing outside the United States, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
14
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"Government" shall mean the United States government or any department
or agency thereof.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Government Contracts" shall mean written contracts between the
Borrower or any Subsidiary Guarantor and the Government.
"Granting Lender" shall have the meaning specified in Section 9.04(i).
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, foreign exchange
contract, currency swap agreement or other similar agreement or arrangement
designed to protect against fluctuations in interest or currency exchange rates
and not entered into for speculation.
"Inactive Subsidiary" shall mean any Subsidiary of the Borrower that
(a) does not conduct any business operations, (b) has assets with a total book
value not in excess of $10,000 and (c) does not have any Indebtedness
outstanding.
"Incremental Revolving Credit Assumption Agreement" shall mean an
Incremental Revolving Credit Assumption Agreement in form and substance
reasonably satisfactory to the Administrative Agent, among the Borrower, the
Administrative Agent and one or more Incremental Revolving Credit Lenders.
"Incremental Revolving Credit Commitment" shall mean the commitment of
any Lender, established pursuant to Section 2.25, to make Revolving Loans to the
Borrowers.
15
"Incremental Revolving Credit Commitment Amount" shall mean, at any
time, the excess, if any, of $80,000,000 over the aggregate amount of all
Incremental Revolving Credit Commitments established prior to such time pursuant
to Section 2.25.
"Incremental Revolving Credit Commitment Fee" shall have the meaning
assigned to such term in Section 2.05(e).
"Incremental Revolving Credit Lender" shall mean a Lender with an
Incremental Revolving Credit Commitment.
"Incremental Term Lender" shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time, the excess, if
any, of $50,000,000 over the aggregate amount of all Incremental Term Loan
Commitments established prior to such time pursuant to Section 2.24.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental
Term Loan Assumption Agreement in form and substance reasonably satisfactory to
the Administrative Agent, among the Borrowers, the Administrative Agent and one
or more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.24, to make Incremental Term Loans to
the Borrowers.
"Incremental Term Loan Maturity Date" shall mean the final maturity
date of any Incremental Term Loan, as set forth in the applicable Incremental
Term Loan Assumption Agreement.
"Incremental Term Loan Repayment Dates" shall mean the dates scheduled
for the repayment of principal of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Assumption Agreement.
"Incremental Term Loans" shall mean term loans made by one or more
Lenders to the Borrowers pursuant to an Incremental Term Loan Assumption
Agreement. Incremental Term Loans may be made in the form of additional Term
Loans or, to the extent permitted by Section 2.24 and provided for in the
relevant Incremental Term Loan Assumption Agreement, Other Term Loans.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (other than solely on past due
amounts), (d) all obligations of such person under conditional sale or other
title retention agreements relating to property or assets purchased by such
person, (e) all obligations of such person issued or assumed as the deferred
purchase price of property or services (excluding trade accounts payable and
accrued obligations incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in
16
respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements, (j) all
obligations of such person as an account party in respect of letters of credit
and (k) all obligations of such person as an account party in respect of
bankers' acceptances. The Indebtedness of any person shall include the
Indebtedness of any partnership in which such person is a general partner,
except to the extent that, by its terms, such Indebtedness is nonrecourse to
such person.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Amended and Restated Indemnity, Subrogation and Contribution Agreement,
substantially in the form of Exhibit D, among the Borrower, the Subsidiary
Guarantors and the Collateral Agent.
"Ineligible Receivables" shall mean all receivables that are (a)
evidenced by a promissory note or similar instrument; (b) owed or payable by an
Account Debtor that is more than 120 days past the last date set for payment in
an original invoice in the payment of 50% or more of the aggregate balance due
from such Account Debtor to the Borrower or a Subsidiary Guarantor; (c) owing
from any person that is the subject of any (i) suit, lien, levy or judgment
which could reasonably be expected to affect the collectability of such
receivable, or (ii) bankruptcy, insolvency or similar process or proceeding; (d)
unbilled as a result of cost variances, retainage provisions, "milestone"
requirements or any other reason, except for timing differences; (e) owed in a
currency other than dollars; (f) deemed ineligible by either Agent, in its
reasonable and good faith discretion; or (g) Third Party Governmental
Receivables.
"Interest Coverage Ratio" for any period shall mean the ratio of EBITDA
for such period to the Interest Expense (excluding amortization of deferred
financing fees, premiums or interest rate protection agreements and original
issue discounts, provided, however, that the aggregate amount of amortization
excluded hereby shall not exceed 5% of the aggregate amount of the financing
giving rise to the debt issuance costs associated with such amortization) for
such period.
"Interest Expense" for any period shall mean the total interest expense
of the Borrower and its consolidated Subsidiaries (including amortization of
deferred financing fees, premiums or interest rate protection agreements and
original issue discounts), for such period determined on a consolidated basis in
accordance with GAAP.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan
(other than a Swingline Loan), the last Business Day of each March, June,
September and December, (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, the date of any prepayment of a Eurodollar
Borrowing or conversion of a Eurodollar Borrowing to an ABR Borrowing and (c)
with respect to any Swingline Loan, the day that such Loan is repaid or required
to be repaid.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter,
as the Borrowers may elect (or such other period thereafter as the Borrowers may
request and all the Lenders with Loans included in such
17
Borrowing may agree); provided, however, that if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the succeeding Business Day unless, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Issuing Bank" shall mean, as the context may require, (a) Credit
Suisse First Boston, with respect to Letters of Credit issued by it, (b) with
respect to each Existing Letter of Credit, the Lender that issued such Existing
Letter of Credit, (c) any other Lender that may become an Issuing Bank pursuant
to Section 2.23(i) or (k), with respect to Letters of Credit issued by such
Lender, or (d) collectively, all the foregoing. Each Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 and/or 1.01(a) (other than any such financial institution that has ceased
to be a party hereto pursuant to an Assignment and Acceptance) and (b) any
financial institution that has become a party hereto pursuant to an Assignment
and Acceptance, an Incremental Revolving Credit Assumption Agreement or an
Incremental Term Loan Assumption Agreement. Unless the context clearly indicates
otherwise, the term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 and the Existing Letters of Credit.
"Leverage Ratio" shall mean, on any date, the ratio of Net Debt on such
date to EBITDA for the period of four consecutive fiscal quarters of the
Borrower most recently ended as of such date. Solely for purposes of this
definition, if, at any time the Leverage Ratio is being determined, the Borrower
or any Subsidiary shall have completed a Permitted Acquisition or Asset Sale
since the beginning of the relevant four fiscal quarter period, the Leverage
Ratio shall be determined on a pro forma basis as if such Permitted Acquisition
or Asset Sale, and any related incurrence or repayment of Indebtedness, had
occurred at the beginning of such period and taking into account any
identifiable cost savings documented to the reasonable satisfaction of the
Administrative Agent.
18
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m. (London time) on the date that is two Business Days
prior to the beginning of the relevant Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
(as set forth by the Bloomberg Information Service or any successor thereto or
any other service selected by the Administrative Agent that has been nominated
by the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
interest rate per annum determined by the Administrative Agent to be the average
of the rates per annum at which deposits in dollars are offered for such
relevant Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such
Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Subsidiary Guarantee
Agreement, the Security Documents, the Indemnity, Subrogation and Contribution
Agreement, each Incremental Term Loan Assumption Agreement and each Incremental
Revolving Credit Assumption Agreement.
"Loan Parties" shall mean the Borrowers and the Subsidiary Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean a materially adverse effect on (a)
the business, results of operations, condition (financial or otherwise) or
prospects of the Borrower and the Subsidiaries, taken as a whole, or (b) the
validity or enforceability of any of the Loan Documents or the rights, remedies
or benefits available to the Lenders thereunder.
"Material Contract" shall mean any and all Government Contracts and/or
other contracts or agreements of the Borrower or any Subsidiary involving
amounts in excess of $2,000,000.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of noncash consideration initially received), net of (i)
selling expenses (including reasonable broker's fees or commissions, legal fees,
transfer and similar taxes and the Borrower's good faith estimate of income
taxes paid or payable in connection with such sale), (ii) amounts provided
19
as a reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations or purchase price adjustment associated with such
Asset Sale (provided that, to the extent and at the time any such amounts are
released from such reserve, such amounts shall constitute Net Cash Proceeds) and
(iii) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is repaid with such proceeds (other than any
such Indebtedness assumed by the purchaser of such asset); provided, however,
that, if (x) the Borrower shall deliver a certificate of a Financial Officer to
the Agents at the time of receipt thereof setting forth the Borrower's intent to
reinvest such proceeds in productive assets of a kind then used or usable in the
business of the Borrower and its Subsidiaries within 270 days of receipt of such
proceeds and (y) no Default or Event of Default shall have occurred and shall be
continuing at the time of such certificate or at the proposed time of the
application of such proceeds, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used or contractually committed to be used
at the end of such 270-day period, at which time such proceeds shall be deemed
to be Net Cash Proceeds; and (b) with respect to any issuance or disposition of
Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all taxes
and customary fees, commissions, costs and other expenses incurred in connection
therewith.
"Net Debt" at any time shall mean (a) the total Indebtedness of the
Borrower and the Subsidiaries at such time (excluding Indebtedness of the type
described in clause (i) of the definition of such term and, except to the extent
of any unreimbursed drawings, clause (j) of the definition of such term), less
(b) the sum of (i) the amount at such time of all cash and Permitted Investments
of the Borrower and the Subsidiaries and (ii) the Eligible Margin Stock Amount.
"Net Income" shall mean, for any period, net income or loss of the
Borrower and the Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP; provided that there shall be excluded (a) the income of
any Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by the Subsidiary of that income is prohibited by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, statute, rule or governmental regulation applicable to the Subsidiary,
and (b) the income (or loss) of any person accrued prior to the date it becomes
a Subsidiary or is merged into or consolidated with the Borrower or any of the
Subsidiaries or the date that person's assets are acquired by the Borrower or
any of the Subsidiaries.
"Net Senior Debt" at any time shall mean the Net Debt at such time
less, to the extent included therein, the amount of any Indebtedness that is
subordinated to the Obligations pursuant to the subordination provisions
contained in Exhibit K or subordination provisions no less favorable to the
Lenders than those contained in the Senior Subordinated Note Indenture.
"Noncash Nonrecurring Charges" shall mean charges to income (a) that
are not expected to occur in the future and (b) whereby the underlying asset was
not created at least 12 months before the period end in which the charge is
reflected in the Borrower's financial statements.
"Non-Extending Lender" shall have the meaning assigned to such term in
Section 2.26(b).
"Obligations" shall mean all obligations defined as "Obligations" in
the Subsidiary Guarantee Agreement and the Security Documents.
20
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Other Term Loans" shall have the meaning assigned to such term in
Section 2.24(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Exhibit N.
"Permitted Acquisition" shall have the meaning assigned to such term in
Section 6.04(i).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any Lender or any commercial bank organized under the laws of the
United States of America or any State thereof that has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria of
clause (c) above;
(e) investments in municipal securities maturing within one
year from the date of acquisition thereof and having, at such date of
acquisition, a rating of at least "AA" by S&P or at least "Aa" by
Moody's; and
(f) other short-term investments utilized by Foreign
Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing.
"Permitted Investors" shall mean (a) Caxton Corporation, ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and any other
person who is a Controlled Affiliate of any of the foregoing and any member of
senior management of the Borrower on the Restatement Date and (b) any Related
Party of any of the foregoing.
21
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Amended and Restated Pledge
Agreement, substantially in the form of Exhibit E, among the Borrower, the
Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Properties" shall have the meaning specified in Section 3.17.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Purchase Agreement" shall mean the Stock Purchase Agreement to be
entered into on or around October 31, 2002, by and among the Borrower, the
Target and the existing stockholders of the Target.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Related Party" shall mean (a) any controlling stockholder, general
partner, wholly owned Subsidiary, or spouse or immediate family member (in the
case of an individual) of any Permitted Investor or (b) any trust, corporation,
partnership or other entity, all the beneficiaries, stockholders, partners or
owners of which consist solely of one or more Permitted Investors and/or such
other persons referred to in the immediately preceding clause (a).
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any
22
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
▇▇▇▇▇ or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit and Term Loan Commitments representing greater than 50% of the
sum of all outstanding Loans (excluding Swingline Loans), L/C Exposure,
Swingline Exposure and unused Revolving Credit and Term Loan Commitments at such
time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restatement Date" shall mean October 21, 2002.
"Restatement Required Lenders" shall mean the Tranche B Lenders, the
Swingline Lender and the Required Lenders under the Existing Credit Agreement
immediately prior to the effectiveness of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 or Section 2.21(a), (b)
increased by the amount of such Lender's Incremental Revolving Credit Commitment
and (c) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. Unless the context shall otherwise
require, after the effectiveness of any Incremental Revolving Credit Commitment,
the term "Revolving Credit Commitment" shall include such Incremental Revolving
Credit Commitment.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean June 30, 2005, or such
later date to which the Revolving Credit Maturity Date may be extended pursuant
to Section 2.26.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrowers pursuant to clause (b) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
23
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Amended and Restated Security
Agreement, substantially in the form of Exhibit F, among the Borrower, the
Subsidiaries party thereto and the Collateral Agent for the benefit of the
Secured Parties.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 5.12.
"Senior Leverage Ratio" shall mean, on any date, the ratio of Net
Senior Debt on such date to EBITDA for the period of four consecutive fiscal
quarters of the Borrower most recently ended as of such date. Solely for
purposes of this definition, if, at any time the Senior Leverage Ratio is being
determined, the Borrower or any Subsidiary shall have completed a Permitted
Acquisition or Asset Sale since the beginning of the relevant four fiscal
quarter period, the Senior Leverage Ratio shall be determined on a pro forma
basis as if such Permitted Acquisition or Asset Sale, and any related incurrence
or repayment of Indebtedness, had occurred at the beginning of such period and
taking into account any identifiable cost savings documented to the reasonable
satisfaction of the Administrative Agent.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated
Notes, the Senior Subordinated Note Indenture and all other documents executed
and delivered with respect to the Senior Subordinated Notes or the Senior
Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the indenture dated as
of May 11, 1999, between the Borrower, the Subsidiary Guarantors and IBJ
Whitehall Bank and Trust Company, as trustee.
"Senior Subordinated Notes" shall mean the Borrower's 12% Senior
Subordinated Notes Due 2009 in the initial principal amount of $100,000,000
issued pursuant to the Senior Subordinated Note Indenture and any notes issued
by the Borrower in exchange for, and as contemplated by, the Senior Subordinated
Notes with substantially identical terms as the Senior Subordinated Notes.
"S&P" shall mean Standard and Poor's Ratings Service.
"SPC" shall have the meaning specified in Section 9.04(i).
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. Eurodollar Loans shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
24
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power are, at the time
any determination is being made, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Amended and Restated
Subsidiary Guarantee Agreement, substantially in the form of Exhibit G, made by
the Subsidiary Guarantors in favor of the Collateral Agent for the benefit of
the Secured Parties.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower
listed on Schedule 1.01(b), and each other Subsidiary that is or becomes a party
to a Subsidiary Guarantee Agreement.
"Supermajority Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit and Term Loan Commitments representing at least two-thirds of
the sum of all outstanding Loans (excluding Swingline Loans), L/C Exposure,
Swingline Exposure and unused Revolving Credit and Term Loan Commitments at such
time.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09 or Section 2.22.
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Synthetic Lease" shall mean any synthetic lease, tax retention
operating lease, off- balance sheet loan or similar off-balance sheet financing
product where the transaction is considered indebtedness for borrowed money for
Federal income tax purposes but is classified as an operating lease in
accordance with GAAP for financial reporting purposes.
"Target" shall have the meaning given such term in the preamble to this
Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges, liabilities or withholdings imposed by any
Governmental Authority.
"Tax Payments" shall mean payments in cash in respect of Federal,
state, local and foreign income taxes and assessments, including all interest,
penalties and additions imposed with respect to such amounts, paid or payable by
or on behalf of the Borrower and its consolidated Subsidiaries.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
25
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. Unless the context shall otherwise require, after the effectiveness of any
Incremental Term Loan Commitment, the term "Term Loan Commitment" shall include
such Incremental Term Loan Commitment.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans. Unless the context shall otherwise require, the term "Term Loans" shall
include any Incremental Term Loans.
"Third Party Financing" shall mean the purchase on a nonrecourse basis
from the Borrower or any Subsidiary of Third Party Government Receivables by a
person that is not an Affiliate of the Borrower.
"Third Party Government Receivables" shall mean all Accounts of the
Borrower or any Subsidiary with respect to which the Account Debtor is the
Government, which arise pursuant to a Third Party Sale and which are sold
pursuant to a Third Party Financing.
"Third Party Sale" shall mean the sale to the Government by the
Borrower or any Subsidiary of products and/or services acquired from or to be
provided by, respectively, a person that is not the Borrower or an Affiliate of
the Borrower, so long as the Account arising therefrom is promptly sold pursuant
to a Third Party Financing.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Lenders" shall mean Lenders having outstanding Tranche A
Term Loans.
"Tranche A Maturity Date" shall mean June 30, 2005.
"Tranche A Repayment Date" shall have the meaning given such term in
Section 2.11(a).
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower as described in Section 2.01(a). Each Tranche A Term Loan shall be
a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Credit Facility" shall mean the Term Loan Commitments and
extensions of credit thereunder.
"Tranche B Funding Date" shall mean the date of the Borrowing of the
Tranche B Term Loans.
"Tranche B Lenders" shall mean Lenders having a Term Loan Commitment or
outstanding Tranche B Term Loans.
26
"Tranche B Maturity Date" shall mean November 15, 2008.
"Tranche B Repayment Date" shall have the meaning given such term in
Section 2.11(b).
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrowers pursuant to Section 2.01(b). Each Tranche B Term Loan shall be a
Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power are, at the time any determination is being made, owned, controlled
or held by such person or one or more wholly owned subsidiaries of such person
or by such person and one or more wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall"; and the words "asset" and "property" shall be construed as having
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any document
shall mean such document as amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof and of this
Agreement and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the
27
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Required Lenders.
SECTION 1.03. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.04. Joint and Several Obligations. The obligations of the
Borrowers hereunder, including with respect to the payment of all principal of,
and interest on, all Loans and L/C Disbursements, whether outstanding prior to
or on and after the Restatement Date, and all fees, expenses, indemnities and
other amounts payable hereunder, shall be joint and several.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Tranche A Term Loans. The Borrowers and
the Lenders acknowledge the making of Tranche A Term Loans in the aggregate
principal amount of $60,000,000 on the Closing Date in accordance with the terms
of the Existing Credit Agreement. Prior to the Restatement Date, the Borrower
has repaid or prepaid $37,848,774.71 aggregate principal amount of the Tranche A
Term Loans and, accordingly, the Borrowers and the Lenders acknowledge and agree
that Tranche A Term Loans in an aggregate principal amount of $22,151,225.29
shall continue to be outstanding as of the Restatement Date pursuant to the
terms and conditions of this Agreement and the other Loan Documents. Amounts
paid or prepaid in respect of Tranche A Term Loans may not be reborrowed.
(b) Tranche B Term Loans and Revolving Loans. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, (i) to make a Tranche B Term Loan
to the Borrowers on or after the Acquisition Closing Date in a principal amount
not to exceed its Term Loan Commitment, and (ii) to make Revolving Loans to the
Borrowers, at any time and from time to time on or after the Restatement Date,
and until the earlier of the Revolving Credit Maturity Date and the termination
of the Revolving Credit Commitment of such Lender in accordance with the terms
hereof, in an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure exceeding the lesser of (x)
such Lender's Revolving Credit Commitment and (y) such Lender's Pro Rata
Percentage of the Borrowing Base, each as in effect at such time. Within the
limits set forth in clause (ii) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Borrowers may borrow,
prepay and reborrow Revolving Loans. The Tranche B Term Loans shall be made in a
single drawing on or after the Acquisition Closing Date. Amounts paid or prepaid
in respect of Tranche B Term Loans may not be reborrowed. The Borrowers and the
Lenders acknowledge the making of Revolving Loans that are outstanding on the
Restatement Date in accordance with the terms of the Existing Credit Agreement
and agree that such Revolving Loans shall continue to be outstanding pursuant to
the terms and conditions of this Agreement and the other Loan Documents.
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(c) Without limiting Anteon's obligations under the Subsidiary
Guarantee Agreement with respect to the Obligations outstanding under the
Existing Credit Agreement, Anteon hereby assumes, jointly and severally with the
Borrower, all liability as a Borrower with respect to such outstanding
Obligations.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 or
(ii) equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrowers may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrowers to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrowers shall not be entitled to request any
Borrowing that, if made, would result in more than eight Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Eurodollar
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, in the case of a Eurodollar Borrowing, or 1:00 p.m., New
York City time, in the case of an ABR Borrowing, and the Administrative Agent
shall promptly credit the amounts so received to an account in the name of a
Borrower, maintained with the Administrative Agent and designated by the
Borrowers in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's 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 paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrowers on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrowers severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrowers until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrowers, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of
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overnight or short-term funds (which determination shall be conclusive absent
manifest error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request any Revolving Credit Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrowers the
payment required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 11:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrowers pursuant to Section 2.23(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any
such amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to the Issuing Bank, as their interests may appear.
If any Revolving Credit Lender shall not have made its Pro Rata Percentage of
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrowers severally agree to pay interest on such amount,
for each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrowers, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such
Lender, for the first such day, the Federal Funds Effective Rate, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the Borrowers shall hand deliver
or fax to the Administrative Agent a duly completed Borrowing Request (a) in the
case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall
be signed by or on behalf of the Borrowers and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Tranche B
Term Borrowing, an Incremental Term Borrowing or a Revolving Credit Borrowing,
and whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing;
(ii) the date of such Borrowing (which shall be a Business Day), (iii) the
number and location of the account to which funds are to be disbursed (which
shall be an account that complies with the requirements of Section 2.02(c));
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a
Eurodollar Borrowing, the Interest Period with respect thereto;
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provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrowers shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrowers
hereby unconditionally promise to pay to (i) the Administrative Agent (x) for
the account of each Lender holding Term Loans, the principal amount of each Term
Loan of such Lender as provided in Section 2.11, and (y) for the account of each
Revolving Credit Lender, the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Credit Maturity Date, and (ii) the Swingline
Lender, the then unpaid principal amount of each Swingline Loan on the Revolving
Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrowers to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrowers or any Subsidiary Guarantor and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrowers to repay
the Loans in accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced
by a promissory note. In such event, the Borrowers shall execute and deliver to
such Lender a promissory note payable to such Lender and its registered assigns
and in a form and substance reasonably acceptable to the Administrative Agent
and the Borrowers. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrowers agree to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year and on each date on which any Revolving Credit Commitment
of such Lender shall expire or be terminated as provided herein, a commitment
fee (a "Commitment Fee") equal to the Applicable Percentage per annum in effect
from time to time on the daily unused amount of the Revolving Credit Commitment
of such Lender during the preceding quarter (or other
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period ending with the Revolving Credit Maturity Date or the date on which the
Revolving Credit Commitment of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the Restatement Date and shall cease to accrue on the date
on which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein. For purposes of calculating Commitment Fees only,
no portion of the Revolving Credit Commitments shall be deemed utilized under
Section 2.17 as a result of outstanding Swingline Loans.
(b) The Borrowers agree to pay to the Administrative Agent, for its own
account, the administration fees set forth in the Fee Letters at the times and
in the amounts specified therein (the "Administrative Agent Fees"). The
Borrowers agree to pay to the Collateral Agent, for its own account, the
collateral agent's fees set forth in the Collateral Agent's Fee Letter at the
times and in the amounts specified therein (the "Collateral Agent's Fees").
(c) The Borrowers agree to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December of each year and on the date on which the Revolving
Credit Commitment of such Lender shall be terminated as provided herein, a fee
(an "L/C Participation Fee") calculated on such Lender's Pro Rata Percentage of
the average daily aggregate L/C Exposure (excluding the portion thereof
attributable to unreimbursed L/C Disbursements) during the preceding quarter (or
shorter period ending with the Revolving Credit Maturity Date or the date on
which all Letters of Credit have been canceled or have expired and the Revolving
Credit Commitments of all Lenders shall have been terminated) at a rate equal to
the Applicable Percentage from time to time used to determine the interest rate
on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section
2.06, and (ii) to the Issuing Bank with respect to each Letter of Credit the
standard fronting, issuance and drawing fees specified from time to time by the
Issuing Bank (the "Issuing Bank Fees"). All L/C Participation Fees and Issuing
Bank Fees shall be computed on the basis of the actual number of days elapsed in
a year of 360 days.
(d) The Borrowers agree to pay, through the Administrative Agent, to
each Lender that executes and delivers to the Administrative Agent a counterpart
of this Agreement signed on behalf of such party (or written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this agreement) on or prior to the Restatement Date a
fee (an "Amendment Fee") on the Restatement Date in an amount equal to 0.25% of
the sum of such Lender's outstanding Term Loans and Revolving Credit Commitments
(whether used or unused) under the Existing Credit Agreement immediately prior
to the effectiveness of this Agreement.
(e) The Borrowers agree to pay to each Incremental Revolving Credit
Lender, through the Administrative Agent, the fees (the "Incremental Revolving
Credit Commitment Fees") in the amounts and on the dates provided for in such
Incremental Revolving Credit Lender's Incremental Revolving Credit Assumption
Agreement.
(f) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
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SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times and calculated from and including the date of such
Borrowing to but excluding the date of repayment thereof) at a rate per annum
equal to the Alternate Base Rate plus the Applicable Percentage in effect from
time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable to the Administrative Agent
on the Interest Payment Dates applicable to such Loan except as otherwise
provided in this Agreement. The applicable Alternate Base Rate or Adjusted LIBO
Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrowers shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrowers shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the rate that would be applicable to an
ABR Revolving Loan plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to a majority in interest of the Lenders
making or maintaining such Eurodollar Loans during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
fax notice of such determination to the Borrowers and the Lenders. In the event
of any such determination, until the Administrative Agent shall have advised the
Borrowers and the Lenders that the circumstances giving rise to such notice no
longer exist (which the Administrative Agent agrees to do as soon as practicable
after such circumstances cease to exist), any request by the Borrowers for a
Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments (other than any Incremental Term Loan Commitments, which shall
terminate in accordance with the applicable Incremental Term Loan Assumption
Agreement) shall automatically terminate at 5:00 p.m., New York City time, on
the Tranche B Funding Date.
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The Revolving Credit Commitments, the Swingline Commitment and the L/C
Commitment shall automatically terminate on the Revolving Credit Maturity Date.
Notwithstanding the foregoing, the Term Loan Commitments shall automatically
terminate at 5:00 p.m., New York City time, on December 31, 2002, or such later
date as may be agreed to by the Borrowers and each of the Tranche B Lenders, if
the Tranche B Funding Date shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or fax
notice to the Administrative Agent, the Borrowers may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the Term
Loan Commitments or the Revolving Credit Commitments; provided, however, that
(i) each partial reduction of the Term Loan Commitments or the Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and (ii) the Total
Revolving Credit Commitment shall not be reduced to an amount that is less than
the sum of the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrowers shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrowers
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, on the
day of conversion, to convert any Eurodollar Borrowing into an ABR Borrowing,
(b) not later than 10:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Type and/or Interest Period for such Borrowing resulting from such
conversion; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrowers at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrowers
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
34
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar
Term Borrowing that would end later than a Tranche A Repayment Date, a
Tranche B Repayment Date or an Incremental Term Loan Repayment Date, as
applicable, occurring on or after the first day of such Interest Period
if, after giving effect to such selection, the aggregate outstanding
amount of (A) the Eurodollar Term Borrowings comprised of Tranche A
Term Loans, Tranche B Term Loans and Incremental Term Loans, as
applicable, with Interest Periods ending on or prior to such Tranche A
Repayment Date, Tranche B Repayment Date or Incremental Term Loan
Repayment Date, respectively, and (B) the ABR Term Loan Borrowings
comprised of Tranche A Term Loans, Tranche B Term Loans and Incremental
Term Loans, as applicable, would not be at least equal to the principal
amount of Term Borrowings to be paid on such Tranche A Repayment Date,
Tranche B Repayment Date or Incremental Tem Loan Repayment Date,
respectively; and
(viii) upon notice to the Borrowers from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrowers request be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrowers shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrowers shall not have given notice in accordance
with this Section 2.10 to continue any Eurodollar Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end
of the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be converted into an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Tranche A Term
Borrowings shall be payable as to principal in 17 consecutive installments
payable on the last Business Day of March, June, September and December of each
year, commencing on the last Business Day in June 2001 and ending on the Tranche
A Maturity Date (each such date being called a "Tranche A Repayment Date"). Each
of the first 16 installments shall be in an amount equal to 4.6875% of the
initial aggregate principal amount of the Tranche A Term Borrowings, with the
balance due and payable on the Tranche A Maturity Date.
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(b) The Tranche B Term Borrowings (other than Term Borrowings
consisting of Other Term Loans) shall be payable as to principal in 25
consecutive installments payable on the last Business Day of March, June,
September and December of each year, commencing on the last Business Day in
December 2002 and ending on the Tranche B Maturity Date (each such date being
called a "Tranche B Repayment Date"). Each of the first 21 installments shall be
in an amount equal to 0.25% of the initial aggregate principal amount of the
Tranche B Term Borrowings, and each of the final 4 installments shall be in an
amount equal to 23.6875% of the initial aggregate principal amount of the
Tranche B Term Borrowings, with the balance due and payable on the Tranche B
Maturity Date.
(c) The Borrowers shall pay to the Administrative Agent, for the
account of the Lenders, on each Incremental Term Loan Repayment Date, a
principal amount of the Other Term Loans (as adjusted from time to time pursuant
to Sections 2.12 and 2.13(g)) equal to the amount set forth for such date in the
applicable Incremental Term Loan Assumption Agreement. To the extent not
previously paid, all Incremental Term Loans shall be due and payable on the
Incremental Term Loan Maturity Date.
(d) Each payment of Term Borrowings pursuant to this Section 2.11 shall
be accompanied by accrued interest on the principal amount paid to but excluding
the date of payment.
SECTION 2.12. Prepayment. (a) The Borrowers shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or
written or fax notice (or telephone notice promptly confirmed by written or fax
notice) on or prior to the date of prepayment in the case of ABR Loans, to the
Administrative Agent before 11:00 a.m., New York City time; provided, however,
that each partial prepayment shall be in an amount that is an integral multiple
of $1,000,000.
(b) Optional prepayments of Term Loans made by the Borrowers pursuant
to paragraph (a) above shall be allocated among the Tranche A Term Loans, the
Tranche B Term Loans and any Other Term Loans (and to the remaining scheduled
installments of principal due in respect of any such Term Loans) in a manner
determined at the discretion of the Borrowers.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrowers to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.16 but otherwise without premium or
penalty. All prepayments of Eurodollar Loans under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment. Interest on ABR Loans prepaid under this Section 2.12 shall be
paid in accordance with Section 2.06(c).
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrowers shall, on the
date of such termination, repay or prepay all their outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace all outstanding
Letters of Credit and/or deposit an amount equal to the L/C Exposure in cash in
a cash collateral account established with the Collateral Agent for the benefit
of the Secured Parties. In the event of any partial reduction of the Revolving
Credit Commitments, then (i) at or prior to the effective date of such
reduction, the
36
Administrative Agent shall notify the Borrowers and the Revolving Credit Lenders
of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii)
if the Aggregate Revolving Credit Exposure would exceed the Total Revolving
Credit Commitment after giving effect to such reduction or termination, then the
Borrowers shall, on the date of such reduction or termination, repay or prepay
Revolving Credit Borrowings or Swingline Loans (or a combination thereof) and/or
replace or cash collateralize outstanding Letters of Credit in an amount
sufficient to eliminate such excess.
(b) If on any date the Aggregate Revolving Credit Exposure shall exceed
the Borrowing Base, the Borrowers shall on such date repay or prepay Revolving
Credit Borrowings or Swingline Loans (or a combination thereof) and/or replace
or cash collateralize outstanding Letters of Credit in an amount sufficient to
eliminate such excess.
(c) Not later than the third Business Day following the completion of
any Asset Sale, the Borrowers shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with Section
2.13(g).
(d) In the event and on each occasion that an Equity Issuance occurs,
the Borrowers shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply the lesser of (i) 50% of the Net Cash Proceeds therefrom and
(ii) the amount required to achieve a Senior Leverage Ratio that is at least
0.25 to 1.0 less than the maximum Senior Leverage Ratio permitted under Section
6.12 applicable at the time of, and after giving effect to, such Equity
Issuance, to prepay outstanding Term Loans in accordance with Section 2.13(g).
(e) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
31, 2002, and (ii) the date on which the financial statements with respect to
such period are delivered pursuant to Section 5.04(a), the Borrowers shall
prepay outstanding Term Loans in accordance with Section 2.13(g) in an aggregate
principal amount equal to 50% of Excess Cash Flow for the fiscal year then ended
only if the Senior Leverage Ratio at the end of such year shall have been
greater than 0.25 to 1.0 less than the maximum Senior Leverage Ratio permitted
under Section 6.12 at the end of such fiscal year.
(f) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted pursuant to Section
6.01), the Borrowers shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the receipt of such Net
Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance
with Section 2.13(g).
(g) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be applied pro rata between the then-outstanding Tranche A Term
Loans, Tranche B Term Loans and Other Term Loans, and subject to paragraph (i)
below, applied pro rata against the remaining scheduled installments of
principal due in respect of Tranche A Term Loans, Tranche B Term Loans and Other
Term Loans under Sections 2.11 (a), (b) and (c), respectively.
(h) The Borrowers shall deliver to the Administrative Agent, at the
time of each pre payment required under this Section 2.13, (i) a certificate
signed by a Financial Officer of the
37
Borrowers setting forth in reasonable detail the calculation of the amount of
such prepayment and (ii) to the extent practicable, at least three days prior
written notice of such prepayment. Each notice of prepayment shall specify the
prepayment date, the Type of each Loan being prepaid and the principal amount of
each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings
under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be
without premium or penalty.
(i) Any Tranche B Lender and, to the extent so provided in the
applicable Incremental Term Loan Assumption Agreement, any Incremental Term
Lender, so long as any Tranche A Term Loans shall remain outstanding, may elect,
by notice to the Administrative Agent in writing no later than 3:00 p.m., New
York City time, at least two Business Days prior to any prepayment of Tranche B
Term Loans or Incremental Term Loans, as the case may be, required to be made by
the Borrowers for the account of such Lender pursuant to this Section 2.13, to
cause all or a portion of such prepayment to be applied instead to prepay
Tranche A Term Loans in accordance with paragraph (g) above.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case, by an amount deemed by such Lender or the Issuing Bank to be material,
then the Borrowers will pay to such Lender or the Issuing Bank, as the case may
be, upon demand in accordance with paragraph (c) below such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any
Change in Law regarding capital adequacy has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made or participations in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of Credit issued
by the Issuing Bank pursuant hereto to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change In Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender or the Issuing Bank to be material, then from time to time
in accordance with paragraph (c) below the Borrowers shall pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above,
together with supporting
38
documentation or computations in each case in reasonable detail, shall be
delivered to the Borrowers and shall be conclusive absent manifest error. The
Borrowers shall pay such Lender or the Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrowers shall not be under any obligation to compensate any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 120-day period.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the Closing Date, any change in any law
or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrowers and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such or to convert a Eurodollar Loan into an
ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn (which such Lender agrees to do as promptly as
practicable after circumstances allow); and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrowers by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrowers.
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SECTION 2.16. Indemnity. The Borrowers shall indemnify each Lender
against any loss or expense (other than any loss of margin over funding cost or
anticipated profit) that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrowers hereunder (any of the events
referred to in this clause (a) being called a "Breakage Event") or (b) any
default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over
(ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender in reasonable detail with supporting
calculations setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 2.16 shall be delivered to the Borrowers and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Section 2.15,
each Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). For purposes of determining the
available Revolving Credit Commitments of the Lenders at any time, each
outstanding Swingline Loan shall be deemed to have utilized the Revolving Credit
Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Revolving Credit
Commitments. Each Lender agrees that in computing such Lender's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender's percentage of such Borrowing to the next higher or lower
whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrowers or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Obligation as a result of which the unpaid portion of its Obligations shall be
proportionately less than the unpaid portion of the Obligations of any other
Lender, it shall be deemed simultaneously to have purchased from such other
Lender at face value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Obligations of such other Lender, so that the
aggregate unpaid amount of the Obligations and participations in Obligations
held by each Lender shall be in the same proportion to the aggregate unpaid
40
amount of all Obligations then outstanding as the amount of its Obligations
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the amount of all Obligations outstanding prior to such exercise of
banker's lien, setoff or counterclaim or other event; provided, however, that if
any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.18 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrowers expressly consent to the foregoing arrangements and
agrees that any Lender holding a participation in an Obligation deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrowers to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrowers in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrowers shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim; provided, however,
that the Borrowers shall make each payment of principal of or interest on
Swingline Loans not later than 12:00 (noon), New York City time . Each such
payment (other than (i) Issuing Bank Fees, which shall be paid directly to the
Issuing Bank, and (ii) principal of and interest on Swingline Loans, which shall
be paid directly to the Swingline Lender except as otherwise provided in Section
2.22(e)) shall be made to the Administrative Agent at its offices at Eleven
Madison Avenue, New York, New York.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrowers or any Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrowers or any Loan
Party shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or such Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrowers or such Loan Party shall make such
deductions and (iii) the Borrowers or such Loan Party shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrowers or any Loan Party hereunder or under any
other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
41
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender, or by the Administrative Agent on its behalf or on behalf
of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers or any other Loan Party to a Governmental
Authority, the Borrowers shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of a jurisdiction in which a Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrowers (with a copy to the
Administrative Agent), on or prior to the Restatement Date, or in the case of a
Lender that is an assignee or transferee of an interest under this Credit
Agreement pursuant to Section 9.04 (unless the Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, such accurate, properly completed and
executed documentation prescribed by applicable law or reasonably requested by
the Borrowers as will permit such payments to be made without withholding or at
a reduced rate. In addition, each Lender agrees that from time to time after the
Closing Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrowers and the Administrative Agent new accurate, properly
completed and executed documentation prescribed by applicable law or as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Credit Agreement and any Revolving Loan, or it
shall immediately notify the Borrowers and the Administrative Agent of its
inability to deliver any such documentation, in which case such Lender shall not
be required to deliver any such documentation, pursuant to this Section 2.20(e).
Notwithstanding anything to the contrary contained in Section 2.20 but subject
to Section 9.04 and the immediately succeeding sentence, (x) each Borrower shall
be entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other
amounts payable hereunder for the account of any Lender which is a Foreign
Lender to the extent that such Lender has not provided to the Borrowers
accurate, properly completed and executed documentation that establishes a
complete exemption from such deduction or withholding and (y) the Borrowers
shall not be obligated pursuant to Section 2.20 to make any additional payments
to a Lender pursuant to Section 2.20(b) or 2.20(c), as the case may be (the
"Gross-Up Payments") if such Lender has not provided to the Borrowers the
documentation required to be provided to the Borrowers pursuant to this Section
2.20(e). Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 2.20 and except as set forth in Section
9.04, the Borrowers agree to pay additional amounts and to indemnify each Lender
in the manner set forth in Sections 2.20(b) and 2.20(c) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Closing Date in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in
the interpretation thereof, relating to the deducting or withholding of such
Taxes.
42
(f) If the Borrowers pay any additional amount under this Section 2.20
to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax Liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrowers an amount that the Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15, (iii) the
Borrowers are required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20 or (iv) any Lender refuses to consent to any amendment,
waiver or other modification of any Loan Document requested by the Borrowers
that requires the consent of a greater percentage of the Lenders than the
Required Lenders and such amendment, waiver or other modification is consented
to by the Required Lenders, the Borrowers may, at their sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrowers shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) the Borrowers or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder (including any amounts under Section 2.14
and Section 2.16); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or the
Issuing Bank's claim for compensation under Section 2.14 or notice under Section
2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to
cause such Lender or the Issuing Bank to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.15, or cease to result in amounts
being payable under Section 2.20, as the case may be (including as a result of
any action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrowers are required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
43
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrowers or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender or
the Issuing Bank in connection with any such filing or assignment, delegation
and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrowers at any
time and from time to time on and after the Restatement Date and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans exceeding $20,000,000 in
the aggregate, (ii) the Revolving Credit Exposure of any Lender, after giving
effect to any Swingline Loan, exceeding such Lender's Revolving Credit
Commitment or (iii) the Aggregate Revolving Credit Exposure, after giving effect
to any Swingline Loan, exceeding the lesser of (x) the Total Revolving Credit
Commitment and (y) the Borrowing Base in effect at such time. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $100,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrowers may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. The Borrowers shall notify the Swingline Lender by
fax, or by telephone (confirmed by fax), with a copy of such notice to the
Administrative Agent, not later than 12:00 (noon), New York City time, on the
day of a proposed Swingline Loan. Such notice shall be delivered on a Business
Day, shall be irrevocable and shall refer to this Agreement and shall specify
the requested date (which shall be a Business Day) and amount of such Swingline
Loan. The Swingline Lender shall make each Swingline Loan available to the
Borrowers by means of a credit to the general deposit account of a Borrower with
the Swingline Lender by 3:00 p.m. on the date such Swingline Loan is so
requested. Pursuant to Section 5.01(c) of the Security Agreement, the Swingline
Lender may apply the funds on deposit in the Concentration Account (as such term
is defined in the Security Agreement) on any Business Day to repay outstanding
Swingline Loans.
(c) Prepayment. The Borrowers shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or fax notice (or telephone notice promptly confirmed by written, or fax
notice) to the Swingline Lender and to the Administrative Agent before 1:00
p.m., New York City time on the date of prepayment at the Swingline Lender's
address for notices specified on Schedule 2.01. All principal payments of
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest at the rate provided for ABR
Revolving Loans in accordance with Section 2.06(a).
44
(e) Participations. The Swingline Lender may by written notice given to
the Administrative Agent not later than 11:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the
Revolving Credit Lenders will participate. The Administrative Agent will,
promptly upon receipt of such notice, give notice to each Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. In furtherance of the foregoing, each Revolving Credit
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
Swingline Lender, such Revolving Credit Lender's Pro Rata Percentage of such
Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis mutandis, to the payment obligations of the Lenders) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrowers of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrowers (or other party on behalf of
the Borrowers) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrowers (or other party liable for obligations of the Borrowers) of any
default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. Each of the Borrowers may
request the issuance of a Letter of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time while the Revolving Credit Commitments remain in
effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrowers shall hand deliver
or fax to the Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrowers
45
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed
$25,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed
the lesser of (x) the Total Revolving Credit Commitment and (y) the Borrowing
Base in effect at such time.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided that a Letter of Credit may provide for
automatic extension of any expiration date for additional periods of up to one
year, subject to a right on the part of the Issuing Bank to prevent any such
automatic extension from occurring by giving reasonable notice to the
beneficiary during a period satisfactory to the Administrative Agent.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit (or, in the case of the Existing Letters of Credit,
effective upon the Restatement Date). In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrowers (or, if applicable, another party
pursuant to its obligations under any other Loan Document) forthwith on the date
due as provided in Section 2.02(f). Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph 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 an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrowers shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrowers shall have received notice from the Issuing Bank that payment of
such draft will be made, or, if the Borrowers shall have received such notice
later than 10:00 a.m., New York City time, on any Business Day, not later than
10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrowers' obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
46
(iii) the existence of any claim, setoff, defense or other
right that the Borrowers, any other party guaranteeing, or otherwise
obligated with, the Borrowers, any Subsidiary or other Affiliate
thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or 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;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrowers' obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrowers hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by the Borrowers that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that 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 and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by fax, to the Administrative Agent and
the Borrowers of such demand for payment and whether the Issuing Bank has made
or will make an L/C Disbursement thereunder; provided that any failure to give
or delay in giving such notice shall not relieve
47
the Borrowers of their obligation to reimburse the Issuing Bank and the
Revolving Credit Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Revolving Credit Lender notice
thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrowers shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrowers or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 30 days' prior written notice to the Administrative
Agent, the Lenders and the Borrowers, and may be removed at any time by the
Borrowers by notice to the Issuing Bank, the Administrative Agent and the
Lenders. Subject to the next succeeding paragraph, upon the acceptance of any
appointment as the Issuing Bank hereunder by a Lender that shall agree to serve
as successor Issuing Bank, such successor shall succeed to and become vested
with all the interests, rights and obligations of the retiring Issuing Bank and
the retiring Issuing Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrowers shall pay all accrued and unpaid fees
pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the
Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrowers and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of the Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrowers shall, on the Business Day they receive notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrowers for the L/C
Exposure at such time and (iii) if the maturity of the Loans has
48
been accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrowers are required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrowers within three Business Days after all Events of Default have
been cured or waived.
(k) Additional Issuing Banks. The Borrowers may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in
addition to being a Lender) to be the Issuing Bank with respect to Letters of
Credit issued or to be issued by such Lender, and all references herein and in
the other Loan Documents to the term "Issuing Bank" shall, with respect to such
Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing
Bank.
SECTION 2.24. Increase in Term Loan Commitments. (a) The Borrowers may,
by written notice to the Administrative Agent from time to time, request
Incremental Term Loan Commitments in an amount not to exceed the Incremental
Term Loan Amount from one or more Incremental Term Lenders, which may include
any existing Lender; provided that each Incremental Term Lender, if not already
a Lender hereunder, shall be subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld). Each such notice shall set
forth (i) the amount of the Incremental Term Loan Commitments being requested
(which shall be in minimum increments of $5,000,000 and a minimum amount of
$10,000,000 or equal to the remaining Incremental Term Loan Amount), (ii) the
date on which such Incremental Term Loan Commitments are requested to become
effective (which shall not be less than 10 Business Days nor more than 60 days
after the date of such notice), and (iii) whether such Incremental Term Loan
Commitments are to be Term Loan Commitments, commitments to make term loans with
the same economic terms as the Tranche A Term Loans or commitments to make term
loans with economic terms (such as interest rates, maturities and amortization
schedules) that are different from the Term Loans ("Other Term Loans").
(b) The Borrowers and each Incremental Term Lender shall execute and
deliver to the Administrative Agent an Incremental Term Loan Assumption
Agreement and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Incremental Term Loan Commitment of such
Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall
specify the terms of the Incremental Term Loans to be made thereunder; provided
that, without the prior written consent of the Required Lenders, (i) the final
maturity date of any Other Term Loans shall be no earlier than the Tranche B
Maturity Date and (ii) the average life to maturity of any Other Term Loans
shall be no shorter than the average life to maturity of the Tranche B Term
Loans. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Incremental
Term Loan Assumption Agreement, this Agreement shall be deemed amended to the
extent (but only to the extent) necessary to reflect the existence and terms of
the Incremental Term Loan Commitment evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.24 unless (i) on the date of such
effectiveness, the
49
conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be
satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the Borrowers, and
(ii) the Administrative Agent shall have received (with sufficient copies for
each of the Incremental Term Lenders) legal opinions, board resolutions and an
officer's certificate consistent with those delivered on the Restatement Date
under paragraphs (a) and (c) of Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative
Agent may take any and all action as may be reasonably necessary to ensure that
all Incremental Term Loans (other than Other Term Loans), when originally made,
are included in each Borrowing of outstanding Tranche A Term Loans or Tranche B
Term Loans, as the case may be, on a pro rata basis. This may be accomplished at
the discretion of the Administrative Agent by requiring each outstanding
Eurodollar Tranche A Term Borrowing or Eurodollar Tranche B Term Borrowing, as
the case may be, to be converted into an ABR Term Borrowing on the date of each
Incremental Term Loan, or by allocating a portion of each Incremental Term Loan
to each outstanding Eurodollar Tranche A Term Borrowing or Eurodollar Tranche B
Term Borrowing, as applicable, on a pro rata basis, even though as a result
thereof such Incremental Term Loan may effectively have a shorter Interest
Period than the Term Loans included in the Borrowing of which they are a part
(and notwithstanding any other provision of this Agreement that would prohibit
such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR
Term Loans required by the preceding sentence shall be subject to Section 2.16.
If any Incremental Term Loan is to be allocated to an existing Interest Period
for a Eurodollar Term Borrowing then, subject to Section 2.07, the interest rate
applicable to such Incremental Term Loan for the remainder of such Interest
Period shall equal the Adjusted LIBO Rate for a period approximately equal to
the remainder of such Interest Period (as determined by the Administrative Agent
two Business Days before the date such Incremental Term Loan is made) plus the
Applicable Percentage. In addition, to the extent any Incremental Term Loans are
not Other Term Loans, the scheduled amortization payments under Section
2.11(a)(i) or (ii), as applicable, required to be made after the making of such
Incremental Term Loans shall be ratably increased to reflect the aggregate
principal amount of such Incremental Term Loans. In such event, the
Administrative Agent shall prepare and distribute to the Borrowers and the
Lenders an updated amortization schedule which shall be conclusive absent
manifest error.
SECTION 2.25. Increase in Revolving Credit Commitments. (a) The
Borrowers may, by written notice to the Administrative Agent from time to time
after the Restatement Date, request Incremental Revolving Credit Commitments in
an amount not to exceed the Incremental Revolving Credit Commitment Amount from
one or more Incremental Revolving Credit Lenders, which may include any existing
Lender; provided that each Incremental Revolving Credit Lender, if not already a
Revolving Credit Lender hereunder, shall be subject to the approval of the
Administrative Agent, the Issuing Bank and the Swingline Lender (which approvals
shall not be unreasonably withheld). Each such notice shall set forth (i) the
amount of the Incremental Revolving Credit Commitments being requested (which
shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000
or equal to the remaining Incremental Revolving Credit Commitment Amount) and
(ii) the date on which such Incremental Revolving Credit Commitments are
requested to become effective (which shall not be less than 10 Business Days nor
more than 60 days after the date of such notice).
(b) The Borrowers and each Incremental Revolving Credit Lender shall
execute and deliver to the Administrative Agent an Incremental Revolving Credit
Assumption Agreement and such other documentation as the Administrative Agent
shall reasonably specify to
50
evidence the Incremental Revolving Credit Commitment of such Incremental
Revolving Credit Lender. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Incremental Revolving Credit Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness
of any Incremental Revolving Credit Assumption Agreement, this Agreement shall
be deemed amended to the extent (but only to the extent) necessary to reflect
the existence and terms of the Incremental Revolving Credit Commitment evidenced
thereby.
(c) Each of the parties hereto hereby agrees that the Administrative
Agent may take any and all actions as may be reasonably necessary to ensure
that, after giving effect to any Incremental Revolving Credit Commitment
pursuant to this Section 2.25, the outstanding Revolving Loans (if any) are held
by the Revolving Credit Lenders in accordance with their new Pro Rata
Percentages. This may be accomplished at the discretion of the Administrative
Agent (i) by requiring the outstanding Revolving Loans to be prepaid with the
proceeds of a new Revolving Credit Borrowing, (ii) by causing the existing
Revolving Credit Lenders to assign portions of their outstanding Revolving Loans
to Incremental Revolving Credit Lenders, (iii) by permitting the Revolving
Credit Borrowings outstanding at the time of any increase in the Total Revolving
Credit Commitment pursuant to this Section 2.25 to remain outstanding until the
last days of the respective Interest Periods therefor, even though the Revolving
Credit Lenders would hold such Revolving Credit Borrowings other than in
accordance with their new Pro Rata Percentages, or (iv) by any combination of
the foregoing. Any prepayment or assignment described in this paragraph (c)
shall be subject to indemnification by the Borrowers pursuant to Section 2.16,
but otherwise without premium or penalty.
(d) Notwithstanding the foregoing, no Incremental Revolving Credit
Commitment shall become effective under this Section 2.25 unless on the date of
such effectiveness, the conditions set forth in paragraphs (b) and (c) of
Section 4.01 shall be satisfied and the Administrative Agent shall have received
a certificate to that effect dated such date and executed by a Financial Officer
of the Borrowers.
SECTION 2.26. Extension of Revolving Credit Maturity Date. (a) The
Borrowers may, by notice (an "Extension Request") to the Administrative Agent
(which shall promptly deliver a copy to each of the Revolving Credit Lenders)
not less than 30 days prior to the Revolving Credit Maturity Date then in effect
(the "Existing Revolving Credit Maturity Date"), request that the Revolving
Credit Lenders extend the Existing Revolving Credit Maturity Date to a date no
later than the Tranche B Maturity Date and specified by the Borrowers in such
notice. Each Revolving Credit Lender shall, by notice to the Borrowers and the
Administrative Agent given not more than 15 days after receipt by it of the
Extension Request, advise the Borrowers whether or not such Lender agrees to
such extension (and any Lender that does not so advise the Borrowers on or prior
to such date shall be deemed not to have agreed to such extension). The decision
to agree or withhold agreement to any extension of the Existing Revolving Credit
Maturity Date hereunder shall be at the sole discretion of each Revolving Credit
Lender.
(b) If any Extension Request shall not have been approved by each
Revolving Credit Lender (each such Lender, a "Non-Extending Lender") but shall
have been approved by Revolving Credit Lenders holding a majority of the Total
Revolving Credit Commitment (whether used or unused), then the Borrowers may (i)
cause one or more Non-Extending Lenders to assign their Revolving Credit
Commitments in accordance with Section 2.21(a) and/or (ii) prepay the
outstanding Revolving Loans of one or more Non-Extending Lenders, together with
accrued and unpaid interest thereon, and permanently terminate the Revolving
51
Credit Commitment of such Non-Extending Lenders (provided that the Borrowers may
not so terminate Revolving Credit Commitments to the extent that, after giving
effect thereto, the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment).
(c) If (and only if) each of the Revolving Credit Lenders (after giving
effect to any assignments and terminations of Commitments pursuant to paragraph
(b) above) shall have agreed to extend the Existing Revolving Credit Maturity
Date, then the Revolving Credit Maturity Date shall be extended to the date so
requested by the Borrowers in the Extension Request.
(d) The proposed effectiveness of any extension of the Revolving Credit
Maturity Date provided for in this Section 2.26 shall be deemed to be a Credit
Event for all purposes of this Agreement and it shall be a further condition
precedent to such effectiveness that the Administrative Agent shall have
received a certificate, dated the Existing Revolving Credit Maturity Date and
signed by a Financial Officer of the Borrowers, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
ARTICLE III
Representations and Warranties
The Borrowers represent and warrant to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated hereby or thereby
to which it is or will be a party and, in the case of the Borrowers, to borrow
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
(a) the Borrower of the Purchase Agreement and (b) each Loan Party of each of
the Loan Documents and the consummation of the transactions contemplated by the
Purchase Agreement and the Loan Documents (including the borrowings hereunder)
(collectively, the "Transactions") (i) have been duly authorized by all
requisite corporate and, if required, stockholder action and (ii) will not (x)
violate (A) any material provision of law, statute, rule or regulation, or of
the certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any Subsidiary, (B) any order of any Governmental
Authority or (C) any provision of any indenture or any other material agreement
or other instrument to which the Borrower or any Subsidiary is a party or by
which any of them or any of their property is or may be bound, (y) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (z) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by the
52
Borrower or any Subsidiary (other than any Lien created hereunder or under the
Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrowers and constitutes, and each other Loan Document when
executed and delivered by each Loan Party thereto will constitute, a legal,
valid and binding obligation of such Loan Party enforceable against such Loan
Party in accordance with its terms except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization and other
similar laws relating to or affecting creditors' rights generally and general
equitable principles.
SECTION 3.04. Governmental Approvals; Contracts. (a) No action, consent
or approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions, except for (i) the filing of Uniform Commercial Code financing
statements, filings pursuant to the Assignment of Claims Act and filings with
the United States Copyright Office, in each case with respect to the personal
property to be acquired in the Acquisition, (ii) such as have been made or
obtained and are in full force and effect and (iii) such actions, consents,
approvals, registrations or filings, the failure of which to make or obtain
could not reasonably be expected to result in a Material Adverse Effect.
(b) No notice of suspension, debarment of termination for default has
been received by the Borrower or any Subsidiary and no cure notice (other than
any immaterial cure notice under any General Services Administration contract)
has been received by the Borrower or any Subsidiary in connection with any
Government Contract or other contract pursuant to which the Borrower or any
Subsidiary is directly or indirectly acting as a subcontractor under or in
connection with a Government Contract. All Government Contracts that as of the
Restatement Date constitute Material Contracts are listed on Schedule 3.04, and
documentation necessary for compliance with the Assignment of Claims Act has
been executed and delivered by the Borrower or any Subsidiary, as applicable,
with respect to each Government Contract for which Assignment of Claims Act
perfection is currently being required by the Lenders (as noted on Schedule
3.04).
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its consolidated balance sheets and statements of
income, stockholder's equity and cash flows (i) as of and for the fiscal year
ended December 31, 2001, audited by and accompanied by the opinion of KPMG LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2002, certified by its chief
financial officer. Such financial statements present fairly in all material
respects the financial condition and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof. Such financial statements were prepared in
accordance with GAAP applied on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and statements of income, stockholder's
equity and cash flows as of June 30, 2002, prepared giving effect to the
Transactions as if they had occurred, with respect to such balance sheet, on
such date and, with respect to such other financial statements, on the first day
of the 12-month period ending on such date. Such pro forma financial statements
have been prepared in good faith by the Borrower, based on the assumptions used
to prepare the pro forma financial information contained in the
53
Confidential Information Memorandum (which assumptions at the time made were
believed by the Borrower to be reasonable), were based on the best information
available to the Borrower as of the date of delivery thereof, accurately reflect
all adjustments required to be made to give effect to the Transactions and
present fairly in all material respects on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated
Subsidiaries as of such date and for such period, assuming that the Transactions
had actually occurred at such date or at the beginning of such period, as the
case may be.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, results of operations, property, condition
(financial or otherwise) or prospects of the Borrower and the Subsidiaries,
taken as a whole, since December 31, 2001.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
the Borrower and the Subsidiaries has good and marketable title to, or valid
leasehold interests in, all its material properties and assets, except for minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties and assets for their
intended purposes. All such material properties and assets are free and clear of
Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and the Subsidiaries has complied with all
obligations under all material leases to which it is a party and all such leases
are in full force and effect. Each of the Borrower and the Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Restatement Date a list of all Subsidiaries and the percentage ownership
interest of the Borrower therein. The shares of capital stock or other ownership
interests so indicated on Schedule 3.08 and, on and after the Acquisition
Closing Date the shares of capital stock or other ownership interests of the
Target and its subsidiaries are fully paid and non-assessable and are owned by
the Borrower, directly or indirectly, free and clear of all Liens (other than
Liens created pursuant to the Loan Documents).
SECTION 3.09. Litigation; Compliance with Laws. Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
SECTION 3.10. Agreements. None of the Borrower or any of the
Subsidiaries is in default in any manner under any provision of any indenture or
other agreement or instrument evidencing Indebtedness, or any Material Contract,
where such default could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of the Borrower or
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose
54
that entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation T, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of the Borrower or any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrowers will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal, state, local and foreign tax
returns or materials required to have been filed by it and has paid or caused to
be paid all material taxes due and payable by it and all material assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are or will be made,
not misleading; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Borrower or
any of its ERISA Affiliates. The present value of all benefit liabilities under
each Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more than $3,000,000
the fair market value of the assets of such Plan, and the present value of all
benefit liabilities of all underfunded Plans (based on those assumptions used to
fund each such Plan) did not, as of the last annual valuation dates applicable
thereto, exceed by more than $3,000,000 the fair market value of the assets of
all such underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Borrower, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction that subjects the Borrower or any of its Subsidiaries, directly or
indirectly, to a material tax or civil penalty. With respect to each Foreign
Pension Plan,
55
reserves have been established in the financial statements furnished to the
Lenders in respect of any unfunded liabilities in accordance with applicable law
and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is
maintained. The aggregate unfunded liabilities, with respect to such Foreign
Pension Plans could not reasonably be expected to result in a Material Adverse
Effect. There are no actions, suits or claims (other than routine claims for
benefits) pending or threatened against the Borrower or any of its Affiliates
with respect to any Foreign Pension Plan that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last six years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of the Borrower or any of the Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters the Borrower or the Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, nor do the Borrower or the Subsidiaries have reason to
believe that any such notice will be received or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or the Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the Restatement Date. As of the Restatement
Date, such insurance is in full force and effect and all premiums have been duly
paid. The Borrower and its
56
Subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, (i) assuming that financing statements in appropriate form have
been filed in the offices specified in Section 3.19(b) of the Existing Credit
Agreement, and (ii) when financing statements in appropriate form are filed in
the offices specified on Schedule 3.19(b), the Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property, as defined in the Security Agreement), in each case prior
and superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02.
(c) Assuming that the Security Agreement has been filed in the United
States Patent and Trademark Office and the United States Copyright Office, the
Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in the
Intellectual Property (as defined in the Security Agreement), in each case prior
and superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the grantors after
the date hereof).
SECTION 3.20. Location of Real Property. Schedule 3.20 lists completely
and correctly as of the Restatement Date all real property owned by the Borrower
and the Subsidiaries and the addresses thereof. The Borrower and the
Subsidiaries own in fee all the real property set forth on Schedule 3.20.
SECTION 3.21. Labor Matters. As of the Restatement Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. The hours worked by and
payments made to employees of the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All payments due from the
Borrower or any Subsidiary, or for which any claim may be made against the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of the Borrower or such Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which the
Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Restatement Date and immediately following the
making of each Loan and after giving effect to the application of the proceeds
of each Loan, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities,
57
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Restatement Date.
SECTION 3.23. Ranking. The Obligations constitute "Bank Indebtedness",
"Senior Indebtedness" and "Designated Senior Indebtedness" under and as defined
in the Senior Subordinated Note Indenture.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan but excluding the conversion of a
Eurodollar Borrowing to an ABR Borrowing or vice versa or the continuation or
conversion of the Interest Period of a Eurodollar Borrowing into another
permitted Interest Period, and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline
Lender and the Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof
and in each other Loan Document shall be true and correct in all material
respects on and as of the date of such Credit Event with the same effect as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Credit Event, no Event of
Default or Default shall have occurred and be continuing.
(d) If, after giving effect to such Borrowing or the issuance of any
Letter of Credit, the Aggregate Revolving Credit Exposure would exceed
$110,000,000, the Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower in form and substance satisfactory to the
Administrative Agent demonstrating that either (i) on the date of such Borrowing
or upon the issuance of any Letter of Credit, as the case may be, the
Consolidated Coverage Ratio exceeds 2.25 to 1.00 and the Consolidated Leverage
Ratio is
58
less than 5.50 to 1.00, in each case, as calculated in accordance with Section
4.03(a) of the Senior Subordinated Note Indenture or (ii) the Aggregate
Revolving Credit Exposure would not exceed 90% of accounts receivable of the
Borrower and its Subsidiaries as calculated in accordance with Section
4.03(b)(1) of the Senior Subordinated Note Indenture.
(e) If such Credit Event is the making of a Revolving Credit Borrowing
or a Swingline Loan then, after giving effect to such Credit Event and the
proposed use of the proceeds thereof, the amount of all cash and Permitted
Investments of the Borrower and the Subsidiaries shall not exceed $20,000,000.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrowers on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) and, if such Credit Event is the making of a
Revolving Credit Borrowing or a Swingline Loan, paragraph (e) of this Section
4.01.
SECTION 4.02. First Credit Event. On the Restatement Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of (i) ▇▇▇▇,
Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Borrowers, substantially to
the effect set forth in Exhibit H-1 and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General
Counsel of the Borrowers, substantially to the effect set forth in Exhibit H-2,
in each case (A) dated the Restatement Date, (B) addressed to the Issuing Bank,
the Administrative Agent and the Lenders, and (C) covering such other matters
relating to the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request, and the Borrowers hereby request such counsel to
deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be reasonably
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of each
Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Restatement
Date and certifying (A) that attached thereto is a true and complete copy of the
by-laws of such Loan Party as in effect on the Restatement Date and at all times
since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is a party
and, in the case of the Borrowers, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment thereto shown
on the certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf
of such Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other documents as the
Lenders, the Issuing Bank or the Administrative Agent may reasonably request.
59
(d) The conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01 shall be satisfied and the Administrative Agent shall have received
a certificate to that effect dated the Restatement Date and signed by a
Financial Officer of the Borrowers.
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Restatement Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrowers hereunder or under any other Loan
Document.
(f) Each of the Indemnity, Subrogation and Contribution Agreement, the
Pledge Agreement, the Security Agreement and the Subsidiary Guarantee Agreement
shall have been duly executed by the parties thereto and delivered to the
Administrative Agent, and shall be in full force and effect.
(g) The Lenders shall have received financial projections of the
Borrower covering a period of four years subsequent to the Restatement Date,
which projections shall not be materially inconsistent with the forecasts
previously provided to the Administrative Agent.
SECTION 4.03. Tranche B Funding Date. The obligations of the Tranche B
Lenders to make Tranche B Term Loans hereunder shall be subject to the
satisfaction of the following additional conditions precedent:
(a) A Borrowing Request shall have been delivered by the Borrowers to
the Administrative Agent in accordance with Section 2.03.
(b) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of (i) ▇▇▇▇,
Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Borrowers, substantially to
the effect set forth in Exhibit H-3, (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General
Counsel of the Borrowers, substantially to the effect set forth in Exhibit H-4,
and (iii) each local counsel listed on Schedule 4.03(b), substantially to the
effect set forth in Exhibit H-5, in each case (A) dated the Tranche B Funding
Date, (B) addressed to the Issuing Bank, the Administrative Agent and the
Lenders, and (C) covering such other matters relating to the Loan Documents and
the Transactions as the Administrative Agent shall reasonably request, and the
Borrowers hereby request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party (after giving effect to the Acquisition), certified as of a
recent date by the Secretary of State of the state of its organization (or, in
the case of persons that were Loan Parties prior to the Acquisition Closing
Date, a certificate of a Responsible Officer of the Borrower to the effect that
there has been no change to such documents since the last such documents
previously delivered to the Administrative Agent), and a certificate as to the
good standing of each Loan Party as of a recent date, from such Secretary of
State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan
Party dated the Tranche B Funding Date and certifying (A) that attached thereto
is a true and complete copy of the by-laws of such Loan Party as in effect on
the Tranche B Funding Date and at all times since a date prior to the date of
the resolutions described in clause (B) below (or a certificate of a Responsible
Officer of the Borrower to the effect that there has been no change to such
documents since the last such documents previously delivered to the
Administrative Agent), (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Loan Party
authorizing the execution, delivery and performance of the Loan Documents to
which
60
such person is a party and, in the case of the Borrowers, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate or articles
of incorporation of such Loan Party have not been amended since the date of the
last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above; and (iv) such other documents as the Lenders, the Issuing
Bank or the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated
the Tranche B Funding Date and signed by a Financial Officer of the Borrowers,
confirming compliance with the conditions precedent set forth in paragraphs (b)
and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Tranche B Funding Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrowers hereunder or under any other
Loan Document.
(f) Supplements to the Pledge Agreement shall have been duly executed
by the Loan Parties acquired or organized in connection with or as a result of
the Acquisition and delivered to the Collateral Agent and shall be in full force
and effect, and (i) all the outstanding capital stock of each Domestic
Subsidiary then owned by the Borrower and each other Domestic Subsidiary and
(ii) 65% of the voting capital stock and 100% of the nonvoting capital stock (if
any) of each Foreign Subsidiary listed on Schedule 4.03(f), shall have been duly
and validly pledged thereunder to the Collateral Agent for the ratable benefit
of the Secured Parties and certificates representing such shares, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in the
actual possession of the Collateral Agent.
(g) Supplements to the Security Agreement shall have been duly executed
by the Loan Parties acquired or organized in connection with or as a result of
the Acquisition and shall have been delivered to the Collateral Agent and shall
be in full force and effect on such date and each document (including each
Uniform Commercial Code financing statement and each Assignment of Claims Act
notice) required by law or reasonably requested by the Agents to be filed,
registered or recorded in order to create in favor of the Collateral Agent for
the benefit of the Secured Parties a valid, legal and perfected first-priority
security interest in and lien on the Collateral (subject to any Lien expressly
permitted by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Agents shall have received the results of a search of the
Uniform Commercial Code filings (or equivalent filings) made with respect to the
Loan Parties acquired or organized in connection with or as a result of the
Acquisition in the states (or other jurisdictions) of organization of such
persons, in which the chief executive office of each such person is located and
in the other jurisdictions in which such persons maintain property, in each case
as indicated on the Perfection Certificate, together with copies of the
financing statements (or similar documents) disclosed by such search, and
accompanied by evidence reasonably satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document) would be
permitted under Section 6.02 or have been or will be contemporaneously released
or terminated. The Agents shall have also received (i) a schedule of all
Material Contracts of the Target and its subsidiaries and (ii) all
61
information required for the proper assignment under the Assignment of Claims
Act of all such Material Contracts for which the Agents or the Required Lenders
shall have requested.
(i) The Collateral Agent shall have received a Perfection Certificate
with respect to the Loan Parties (including those acquired or organized in
connection with or as a result of the Acquisition) dated the Tranche B Funding
Date and duly executed by a Responsible Officer of the Borrower.
(j) Supplements to each of the Subsidiary Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement shall have been duly executed
by the Loan Parties acquired or organized in connection with or as a result of
the Acquisition and shall have been delivered to the Collateral Agent and shall
be in full force and effect.
(k) The Agents shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section 5.02 and the
applicable provisions of the Security Documents, each of which shall be endorsed
or otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement and to name the Collateral Agent as additional insured, in form and
substance satisfactory to the Agents.
(l) The Acquisition shall have been consummated or shall be consummated
simultaneously with the making of the Tranche B Term Loans on the Tranche B
Funding Date, in each case in all material respects in accordance with the terms
of the relevant documentation therefor, including the Purchase Agreement and the
related schedules and attachments thereto; and the Agents shall be reasonably
satisfied with the material terms of all such documentation.
(m) All requisite Governmental Authorities and third parties shall have
approved or consented to the Transactions and the other transactions
contemplated hereby to the extent required, in each case to the extent failure
to obtain such consent or approval will or is reasonably likely to have a
Material Adverse Effect and there shall be no governmental or judicial action,
actual or threatened, that has or would have, singly or in the aggregate, a
reasonable likelihood of restraining, preventing or imposing burdensome
conditions on the Transactions or the other transactions contemplated hereby.
(n) The Lenders shall have received a certificate substantially in the
form of Exhibit L from the chief financial officer of the Borrower to the effect
that, after giving effect to the Transactions, the Borrower and the Subsidiaries
taken as a whole will not (i) be insolvent, (ii) be rendered insolvent by the
Indebtedness incurred in connection therewith, (iii) be left with unreasonably
small capital with which to engage in its business or (iv) have incurred debts
beyond its ability to pay such debts as they mature.
(o) The Tranche B Credit Facility provided for by this Agreement shall
be rated not lower than BB- by S&P and not lower than Ba3 by ▇▇▇▇▇'▇, and the
Administrative Agent shall have received satisfactory evidence thereof.
(p) The Lenders shall have received a certificate of a Financial
Officer of the Borrower in form and substance satisfactory to the Administrative
Agent demonstrating that, after giving effect to the Transactions (including the
borrowing of the Tranche B Term Loans and the use of the proceeds thereof), the
Consolidated Coverage Ratio exceeds 2.25 to 1.00 and the Consolidated Leverage
Ratio is less than 5.50 to 1.00, in each case as calculated in accordance with
Section 4.03(a) of the Senior Subordinated Note Indenture.
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(q) Each of the conditions precedent to funding set forth or referred
to in the Commitment Letter shall have been satisfied or waived in writing by
the Lenders party thereto, and the Borrowers shall have complied with all of
their obligations thereunder and under the Fee Letters.
ARTICLE V
Affirmative Covenants
The Borrowers covenant and agree with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrowers will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
in all material respects with all applicable laws, rules, regulations, decrees
and orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or
otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance reasonably satisfactory to the Administrative
Agent and the Collateral Agent, which endorsement shall provide that, from and
after the Closing Date, if the insurance carrier shall have received written
notice from the Administrative Agent or the Collateral Agent of the occurrence
of an Event of Default, the insurance carrier shall pay all proceeds otherwise
payable to the Borrower or the Loan Parties under such policies directly to the
Collateral Agent; cause all such policies to provide that neither the Borrowers,
the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer
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thereunder and to contain a "Replacement Cost Endorsement", without any
deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all such
policies to the Collateral Agent; cause each such policy to provide that it
shall not be canceled, modified or not renewed (i) by reason of nonpayment of
premium upon not less than 10 days' prior written notice thereof by the insurer
to the Administrative Agent and the Collateral Agent (giving the Administrative
Agent and the Collateral Agent the right to cure defaults in the payment of
premiums) or (ii) for any other reason upon not less than 30 days' prior written
notice thereof by the insurer to the Administrative Agent and the Collateral
Agent; deliver to the Administrative Agent and the Collateral Agent, prior to
the cancelation, modification or nonrenewal of any such policy of insurance, a
copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Administrative Agent and the Collateral
Agent) together with evidence satisfactory to the Administrative Agent and the
Collateral Agent of payment of the premium therefor.
(c) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its material Indebtedness and
other obligations promptly and in accordance with their terms and pay and
discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that (a) such payment and discharge shall not be required
with respect to any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest operates to
suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and (b) failure to pay any Indebtedness shall not be a
breach of this covenant unless such failure would give rise to an Event of
Default under paragraph (f) of Article VII.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent, the Collateral Agent and each
Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, all audited by KPMG LLP or other
independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP;
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(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of income, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP, subject to normal year-end audit adjustments;
(c) [Intentionally Omitted];
(d) at the time of delivery of the financial statements
referred to in paragraph (a) or (b) above, the unaudited consolidating
balance sheet and related statements of income and cash flows, showing
the financial position of the Borrower and each of its Subsidiaries as
of the close of, and the results of operations of the Borrower and each
of its Subsidiaries during, the relevant period referred to in
paragraph (a) or (b) above, as the case may be, all certified by one of
its Financial Officers as fairly presenting in all material respects
the financial condition and results of operations of the Borrower and
each of its Subsidiaries in accordance with GAAP (except for
consolidation), subject in the case of monthly and quarterly reports,
to normal year- end audit adjustments;
(e) within 45 days after the end of each fiscal year,
consolidated and consolidating projections of revenues, expenditures
and results of operations and cash positions of the Borrower and each
Subsidiary as of the end of each fiscal quarter in the forthcoming
year, together with a statement of assumptions and estimates upon which
such projections are based, all in detail reasonably satisfactory to
the Administrative Agent;
(f) within 90 days after the end of each fiscal year,
projections of backlog and rolloff of the Borrower and each Subsidiary
as of the end of each calendar quarter in the forthcoming year,
together with a statement of assumptions and estimates upon which such
projections are based, all in detail reasonably satisfactory to the
Administrative Agent;
(g) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate in the form of Exhibit
I (a "Compliance Certificate") of (i) the accounting firm (in the case
of paragraph (a)) or Financial Officer (in the case of paragraph (b))
opining on or certifying such statements (which certificate, when
furnished by an accounting firm, may be limited to accounting matters
and disclaim responsibility for legal interpretations) (A) certifying
that no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto and (B) setting forth computations in detail reasonably
satisfactory to the Agents demonstrating compliance with the covenants
contained in Sections 6.08 (in the case of paragraph (a)), 6.09, 6.10,
6.11 and 6.12, and (ii) the Financial Officer in the case of paragraph
(a) or (b) setting forth compliance with the covenants contained in
Sections 6.01(c), 6.01(f), 6.01(g), 6.01(h), 6.01(i), 6.01(j), 6.01(k),
6.04(d), 6.04(h), 6.04(k), 6.04(p), 6.05(b), 6.06, 6.07(d) and 6.14(b),
and, in the case of a certificate delivered with the financial
65
statements required by paragraph (a) above, setting forth the
Borrower's calculation of Excess Cash Flow;
(h) from time to time at the discretion of the Borrower and,
in any event, within 37 days after the end of each calendar quarter a
certificate in the form of Exhibit J (a "Borrowing Base/Non-Default
Certificate") showing the Borrowing Base as of the close of business on
a recent date (not to exceed 37 days) prior to the delivery of such
Borrowing Base/Non-Default Certificate or the last day of such calendar
quarter, as applicable, each such Borrowing Base/Non-Default
Certificate to be certified as complete and correct on behalf of the
Borrower by a Financial Officer of the Borrower;
(i) promptly upon their becoming available, and in any event
within 30 days following the end of each calendar quarter, (i) a
quarterly report, in form and detail reasonably satisfactory to the
Agents, setting forth the current billed accounts receivable agings
reports, as well as a detailed subcontractor invoice report, of the
Borrower and each Subsidiary Guarantor as of the end of the preceding
calendar quarter, and (ii) a contract status backlog report of the
Borrower and each Subsidiary Guarantor prepared as of the last day of
the calendar quarter most recently ended;
(j) within 6 weeks following the end of each calendar quarter,
a quarterly report, in form and detail reasonably satisfactory to the
Agents, setting forth unbilled active accounts relating to Material
Contracts of the Borrowers as of the end of such calendar quarter;
(k) promptly after the same become publicly available, copies
of all periodic and other reports, final proxy statements and, upon
notice of filing to the Administrative Agent and upon the request of
the Administrative Agent, other materials filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be, and all press
releases;
(l) promptly after the receipt thereof by the Borrower or any
of its Subsidiaries, a copy of any "management letter" in final form
(or if such final letter has not been delivered to the Borrower or any
of its Subsidiaries by the date that is 8 months after the Borrower's
fiscal year end, the then current draft of any "management letter")
received by any such person from its certified public accountants and
the management's responses thereto;
(m) each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause
(a) above, the Borrower shall deliver to the Agents a certificate of a
Financial Officer of the Borrower (i) setting forth the information
required pursuant to Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the
date of the Perfection Certificate delivered on the Tranche B Funding
Date or the date of the most recent certificate delivered pursuant to
this Section, as applicable, and (ii) certifying that all Uniform
Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a
description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the
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extent necessary to protect and perfect the security interests under
the Security Documents for a period of not less than 18 months after
the date of such certificate (except as noted therein with respect to
any continuation statements to be filed within such period);
(n) within 45 days after the end of the first and third fiscal
quarters of the Borrower, a certificate of a Financial Officer of the
Borrower listing all new Government Contracts since the date of the
last perfection certificate which constitute Material Contracts and
which are required by this Agreement to be assigned to the Collateral
Agent, on behalf of the Lenders, in accordance with the Assignment of
Claims Act; and
(o) promptly, from time to time, subject to any restrictions
requiring confidentiality or secrecy, such other information regarding
the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written
notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 10
days after any Responsible Officer of the Borrower or any ERISA Affiliate knows
or has reason to know that, any ERISA Event has occurred that, alone or together
with any other ERISA Event could reasonably be expected to result in liability
of the Borrower in an aggregate amount exceeding $1,000,000, a statement of a
Financial Officer of the Borrower setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, subject to any
restrictions requiring confidentiality or secrecy, permit any representatives
designated by the Agents or any Lender to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary at reasonable times
and as often as reasonably requested and to make extracts from and copies of
such financial records, and permit any representatives designated by the Agents
or any Lender to discuss the affairs, finances and
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condition of the Borrower or any Subsidiary with the officers thereof and
independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all material Environmental Permits
necessary for its operations and Properties; and conduct any Remedial Action in
accordance with Environmental Laws; provided, however, that none of the Borrower
or any of the Subsidiaries shall be required to undertake any Remedial Action 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.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such Default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance or
Remedial Action in connection with such Properties.
SECTION 5.11. Audits. Upon the occurrence and continuance of an Event
of Default, permit the Collateral Agent or the Required Lenders through the
Administrative Agent or professionals (including investment bankers,
consultants, accountants, lawyers and appraisers) retained by the Collateral
Agent or the Required Lenders to conduct evaluations and appraisals of (a) the
Borrower's practices in the computation of the Borrowing Base and (b) the assets
included in the Borrowing Base, and pay the reasonable fees and expenses of such
professionals.
SECTION 5.12. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust and preparing all documentation
relating to filings under the Assignment of Claims Act) that may be required
under applicable law, or that the Required Lenders, the Administrative Agent or
the Collateral Agent may reasonably request, in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant, preserve,
protect and perfect the validity and first priority of the security interests
created or intended to be created by the Security Documents. The Borrower will
cause any subsequently acquired or organized Domestic Subsidiary (other than any
Inactive Subsidiary) or any Domestic Subsidiary that ceases to be an Inactive
Subsidiary to execute a Subsidiary Guarantee Agreement, Indemnity, Subrogation
and Contribution Agreement, Pledge Agreement, Security Agreement and each other
applicable Security Document in favor of the Collateral Agent. In addition, from
time to time, the Borrower will, at its cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as either Agent or the Required Lenders shall designate (it being understood
that it is the intent of the parties that the Obligations shall be secured by
substantially all the assets of the Borrower and its Subsidiaries (including
real and
68
other properties acquired subsequent to the Closing Date)). Such security
interests and Liens will be created under the Security Documents and other
security agreements, mortgages, deeds of trust and other instruments and
documents in form and substance reasonably satisfactory to the Collateral Agent,
and the Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. The Borrower agrees to provide such evidence as
the Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien. In furtherance of the foregoing,
the Borrower will give prompt notice to the Agents of the acquisition by the
Borrower or any Domestic Subsidiary of any real property (or any interest in
real property) having a value in excess of $750,000.
ARTICLE VI
Negative Covenants
The Borrowers covenant and agree with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrowers will not, nor will they cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the Closing
Date and set forth in Schedule 6.01, and any extensions, renewals or
replacements of such Indebtedness to the extent the principal amount of
such Indebtedness is not increased, the weighted average life to
maturity of such Indebtedness is not decreased, such Indebtedness, if
subordinated to the Obligations, remains so subordinated on terms not
less favorable to the Lenders and the original obligors in respect of
such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) Indebtedness evidenced by Capital Lease Obligations, or
secured pursuant to Section 6.02(h), in each case so long as (i) the
related Capital Expenditure is permitted by Section 6.08 and (ii) the
aggregate principal amount of all Indebtedness permitted to be
outstanding under this paragraph (c) shall not exceed $2,000,000;
(d) Indebtedness in favor of a Lender (or an Affiliate
thereof) under one or more Hedging Agreements approved by the
Administrative Agent (such approval not to be unreasonably withheld);
(e) intercompany Indebtedness of the Borrower and its
Subsidiaries to the extent permitted by Sections 6.04(f) and (h);
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(f) Indebtedness with respect to any surety bonds required in
the ordinary course of business of the Borrower and the Subsidiaries,
provided that such Indebtedness shall not at any time exceed $750,000
in the aggregate;
(g) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount not to exceed $7,500,000 at any time outstanding; and
(h) unsecured Indebtedness of the Borrower incurred in
connection with a Permitted Acquisition subordinated to the Obligations
on terms and conditions no less favorable to the Lenders than those
contained in Exhibit K in an aggregate principal amount not to exceed
$7,500,000 at any time outstanding;
(i) other unsecured Indebtedness of the Borrower and the
Subsidiaries in an aggregate principal amount not to exceed $2,500,000
at any time outstanding;
(j) Indebtedness to Citizens Bank in connection with purchase
cards issued by Citizens Bank in an aggregate amount not to exceed
$3,000,000 at any time outstanding;
(k) Indebtedness of any Subsidiary that exists at the time
such person becomes a Subsidiary and that was not incurred in
contemplation of or in connection with the acquisition by the Borrower
or a Subsidiary of such person in an aggregate principal amount not to
exceed $4,000,000 at any time outstanding;
(l) unsecured Indebtedness of the Borrower incurred in
connection with a Permitted Acquisition subordinated to the Obligations
on terms and conditions no less favorable to the Lenders than those
contained in Exhibit K in an aggregate principal amount not to exceed
$5,500,000 at any time outstanding; provided that notwithstanding
Section 1(b) of Exhibit K, Indebtedness incurred pursuant to this
paragraph (l) may have a stated maturity date and, so long as no
Default or Event of Default has occurred and is continuing or would
result therefrom, such Indebtedness may be paid or prepaid, on a date
that is prior to the Tranche B Maturity Date; and
(m) Unsecured Guarantees by the Borrower of loans made by
third parties to members of senior management of the Borrower and the
Subsidiaries in an aggregate principal amount not to exceed $3,000,000
at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Closing Date and set forth in Schedule
6.02; provided that such Liens shall secure only those obligations
which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
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(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(e) Liens (other than any Lien imposed by ERISA), pledges and
deposits made in the ordinary course of business in compliance with
workmen's compen sation, unemployment insurance and other social
security laws or regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(h) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 100% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) and (iv) such security interests do not
apply to any other property or assets of the Borrower or any
Subsidiary;
(i) Liens on assets of Foreign Subsidiaries; provided that (i)
such Liens do not extend to, or encumber, assets of the Borrower or any
of its Domestic Subsidiaries and (ii) such Liens secure only
Indebtedness incurred by such Foreign Subsidiaries pursuant to Section
6.01(g);
(j) Liens that are contractual rights of setoff (i) relating
to the establishment of depository relations with any Lender or any
bank with which the Borrower may maintain accounts in accordance with
Section 6.19 and which are not given in connection with the issuance of
Indebtedness or (ii) pertaining to pooled deposit and/or sweep accounts
of the Borrower or any Subsidiary with any Lender to permit
satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Borrower and the Subsidiaries;
(k) judgment liens securing judgments that have not resulted
in an Event of Default under paragraph (i) of Article VII;
(l) any Lien existing on any property or asset of any person
that exists at the time such person becomes a Subsidiary and that
secured Indebtedness permitted by Section 6.01(k); provided that (i)
such Lien was not created in contemplation of or in connection with
such acquisition and (ii) such Lien does not apply to any property or
assets of the Borrower or any other Subsidiary; and
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(m) any Lien on Third Party Government Receivables purporting
to be sold pursuant to a Third Party Financing in favor of the provider
thereof.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale of such
property is permitted by Section 6.05 and (b) the Capital Lease Obligations
arising therefrom are permitted by Section 6.01(c).
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any Equity Interests, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower existing on the date hereof in
the Equity Interests of the Subsidiaries and additional investments in
the Equity Interests of domestic Subsidiary Guarantors;
(b) Permitted Investments;
(c) Accounts owing to the Borrower or any of its Subsidiaries
arising from sales of inventory under usual and customary terms in the
ordinary course of business;
(d) advances to officers and employees of the Borrower or any
of its Subsidiaries to meet expenses incurred by such officers and
employees in the ordinary course of business, in an aggregate amount
not to exceed $500,000 at any time outstanding;
(e) securities of any customer of the Borrower or any
Subsidiary received in lieu of cash payment, if the Borrower reasonably
deems such customer to be in a reorganization or unable to make a
timely cash payment on Indebtedness of such customer owing to it,
provided that the Borrower or such Subsidiary, as the case may be, has
paid no new consideration (other than forgiveness of Indebtedness)
therefor;
(f) any Subsidiary may make intercompany loans to the Borrower
or any Subsidiary Guarantor and the Borrower may make intercompany
loans and advances to any Subsidiary Guarantor; provided that any
promissory notes evidencing such intercompany loans shall be pledged
(and delivered) by the Borrower or the respective Domestic Subsidiary
Guarantor that is the lender of such intercompany loan as Collateral
pursuant to the Pledge Agreement; provided further that (i) neither the
Borrower nor any Domestic Subsidiaries may make loans to any Foreign
Subsidiaries of the Borrower pursuant to this paragraph (f) and (ii)
any loans made by any Foreign Subsidiaries to the Borrower or any of
its Domestic Subsidiaries pursuant to this paragraph (f) shall be
subordinated to the obligations of the Loan Parties pursuant to
subordination provisions in substantially the form of Exhibit K;
(g) the Borrower may establish Subsidiaries to the extent
permitted by Section 6.15;
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(h) the Borrower and its Domestic wholly owned Subsidiaries
may make loans and advances to, or other investments in, Foreign
Subsidiaries of the Borrower so long as the aggregate amount of any
loans, advances or other investments at any time outstanding
(determined without regard to any write-downs or write-offs thereof)
pursuant to this paragraph (h) shall not exceed $6,000,000;
(i) the Borrower may acquire all or substantially all the
assets of a person or line of business of such person, or not less than
80% of the Equity Interests of a person (referred to herein as the
"Acquired Entity"); provided that (i) the Acquired Entity shall be a
going concern and shall be in a similar line of business as that of the
Borrower and its Subsidiaries as conducted during the current and most
recent calendar year; (ii) at the time of such transaction (A) both
before and after giving effect thereto, no Event of Default or Default
shall have occurred and be continuing or shall exist; (B) the Borrower
would be in compliance with the covenants set forth in Sections 6.09,
6.10, 6.11 and 6.12 as of the most recently completed period of four
consecutive fiscal quarters ending prior to such transaction for which
the financial statements and certificates required by Section 5.04(a)
or 5.04(b) have been delivered or for which comparable financial
statements have been filed with the Securities and Exchange Commission,
after giving pro forma effect to such transaction and to any other
event occurring after such period as to which pro forma recalculation
is appropriate (including any other transaction described in this
Section 6.04(i) occurring after such period) as if such transaction had
occurred as of the first day of such period; (C) based on projections
of the Borrower after giving pro forma effect to such transaction and
such other events or transactions, the Borrower would be in compliance
with the covenants set forth in Sections 6.09, 6.10, 6.11 and 6.12 for
each of the four succeeding calendar quarters; (D) after giving effect
to such acquisition, there must be at least $10,000,000 of unused and
available Revolving Credit Commitments; and (E) the Senior Leverage
Ratio, after giving pro forma effect to such transaction and any
Indebtedness permitted by Section 6.01 incurred in connection with such
transaction, shall be at least 0.25 to 1.0 less than the maximum Senior
Leverage Ratio permitted under Section 6.12 applicable at such time;
(iii) the Acquired Entity shall have had a positive EBITDA for the
12-month period immediately preceding the transaction; (iv) the
Borrower shall assume no Indebtedness in connection with such
acquisition, except as permitted by Section 6.01; (v) the Acquired
Entity shall not be subject to any material pending litigation or
material contingent liabilities (any acquisition of an Acquired Entity
meeting all the criteria of this Section 6.04(i) being referred to
herein as a "Permitted Acquisition") and (vi) if the Acquired Entity
would not constitute a wholly owned Subsidiary, each holder of an
Equity Interest therein (other than the Borrower or any wholly owned
Subsidiary) shall have executed and delivered to the Collateral Agent
an acknowledgment, waiver and consent substantially in the form of
Exhibit M. All pro forma calculations required to be made pursuant to
this Section 6.04(i) shall (i) include only those adjustments that (A)
except with respect to the projections referred to in clause (C) of the
preceding sentence, would be permitted or required by Regulation S-X,
and (B) are based on reasonably detailed written assumptions reasonably
acceptable to the Administrative Agent and (ii) be certified to by a
Financial Officer as having been prepared in good faith based upon
reasonable assumptions;
(j) the Borrower may enter into Hedging Agreements to the
extent permitted in Section 6.01(d);
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(k) the Borrower or any Subsidiary Guarantor may acquire
Margin Stock of entities in a similar line of business as that of the
Borrower and its Subsidiaries as conducted during the current and most
recent calendar year; provided, however, that (i) the Borrower or any
Subsidiary Guarantor must notify the Agents promptly after any such
acquisition, (ii) after giving effect to such acquisition, there must
be at least $10,000,000 of unused and available Revolving Credit
Commitments and (iii) the Borrower and the Subsidiaries shall not hold
Margin Stock with a cost basis in excess of $25,000,000 in the
aggregate at any time (any Margin Stock acquired and held by the
Borrower or any Subsidiary Guarantor in accordance with this Section
6.04(k) being referred to herein as "Approved Margin Stock");
(l) the Borrower and the Subsidiaries may consummate the
Transactions (including the Acquisition);
(m) investments existing on the Closing Date and set forth on
Schedule 6.04;
(n) investments consisting of non-cash proceeds of Asset Sales
for which the consideration consists of at least 75% cash as required
under Section 6.05;
(o) the Borrower may make loans or advances permitted by
clause (ii) of the first proviso of Section 6.06(a); and
(p) other investments, loans and advances (other than
investments in and loans and advances to Foreign Subsidiaries) in an
aggregate amount (valued at cost or outstanding principal amount, as
the case may be) not greater than $15,000,000 at any time outstanding.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of the assets of the Borrower (whether now owned or
hereafter acquired) or less than all the Equity Interests of any Subsidiary, or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person,
except that (i) the Borrower and any Subsidiary may purchase and sell inventory
in the ordinary course of business, (ii) the Borrower or any wholly owned
Subsidiary may make Permitted Acquisitions, (iii) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing (x) any wholly owned Subsidiary may merge into
the Borrower in a transaction in which the Borrower is the surviving corporation
and (y) any wholly owned Subsidiary may merge into or consolidate with any other
wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any
other person) in a transaction in which the surviving entity is a wholly owned
Subsidiary and (except in the case of Permitted Acquisitions) no person other
than the Borrower or a wholly owned Subsidiary receives any consideration,
provided that if any such merger described in this clause (y) shall involve a
Domestic Subsidiary, the surviving entity of such merger shall be a Domestic
Subsidiary, and (iv) the Borrower or any wholly owned Subsidiary may consummate
the Acquisition.
(b) Engage in any Asset Sale otherwise permitted under paragraph (a)
above unless (i) such Asset Sale is for consideration at least 75% of which is
cash (provided that such 75% requirement shall not apply to any Asset Sale
constituting the sale of a business unit if the cash portion of the
consideration received therefor is no less than an amount equal to the
74
product of (A) six and (B) the amount of EBITDA for the preceding fiscal year
directly attributable to the assets included in such Asset Sale), (ii) such
consideration is at least equal to the fair market value of the assets being
sold, transferred, leased or disposed of and (iii) the fair market value of all
assets sold, transferred, leased or disposed of after the Restatement Date
pursuant to this paragraph (b) shall not exceed (i) $10,000,000 in any fiscal
year or (ii) $15,000,000 in the aggregate.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any of its Equity Interests or directly or indirectly redeem, purchase, retire
or otherwise acquire for value (or permit any Subsidiary to purchase or acquire)
any of its Equity Interests or set aside any amount for any such purpose;
provided, however, that (i) any Subsidiary may declare and pay dividends or make
other distributions ratably to the holders of its Equity Interests, (ii) so long
as no Event of Default or Default shall have occurred and be continuing or would
result therefrom, the Borrower may repurchase its Equity Interests owned by
employees of the Borrower or make payments to employees of the Borrower or any
of its Subsidiaries, in each case upon termination of employment in connection
with the exercise of stock options, stock appreciation rights or similar equity
incentives or equity based incentives pursuant to incentive plans or in
connection with the death or Disability of such employees in an aggregate amount
not to exceed $10,000,000 in any fiscal year and (iii) so long as no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower may use the Borrower's Portion of Excess Cash Flow to
repurchase Borrower Common Stock, provided that the amount so expended pursuant
to this clause (iii) shall not exceed (x) $10,000,000 in any fiscal year or (y)
$25,000,000 in the aggregate (in each case, as the same may be reduced pursuant
to Section 6.14(b)).
(b) Permit its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its Equity Interests or (ii) make or repay any
loans or advances to the Borrower or the parent of such Subsidiary except (v)
for such encumbrances or restrictions existing under or by reason of (A)
applicable law, (B) this Agreement and the other Loan Documents, (C) the Senior
Subordinated Note Documents or (D) with respect to Foreign Subsidiaries only,
Indebtedness of such Foreign Subsidiaries permitted to be incurred hereunder,
(w) customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or a Subsidiary of the Borrower,
(x) customary provisions restricting assignment of any agreement entered into by
the Borrower or a Subsidiary in the ordinary course of business, (y) any holder
of a Lien permitted by Section 6.02 may restrict the transfer of the asset or
assets subject thereto and (z) subordination provisions in favor of the Lenders
and required by Section 6.04(f).
SECTION 6.07. Transactions with Affiliates. Except for transactions by
or among Loan Parties, sell or transfer any property or assets to, or purchase
or acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that:
(a) the Borrower or any Subsidiary may engage in any of the
foregoing transactions in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties;
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(b) dividends may be paid to the extent provided in Section
6.06;
(c) loans may be made and other transactions may be entered
into between and among the Borrower, the Subsidiaries and their
respective Affiliates to the extent permitted by Sections 6.01 and
6.04; and
(d) so long as no Event of Default or Default shall have
occurred and be continuing or would result therefrom, customary fees
may be paid to non-officer directors of the Borrower in an aggregate
amount not to exceed $250,000 in any fiscal year.
SECTION 6.08. Capital Expenditures. Make any Capital Expenditures,
except that during each fiscal year (in each case, taken as one accounting
period), the Borrower and its Subsidiaries may make Capital Expenditures in an
aggregate amount not to exceed 1.25% of the consolidated net sales of the
Borrower and its consolidated Subsidiaries for the preceding fiscal year, as
shown on the consolidated financial statements for such year delivered pursuant
to Section 5.04(a) after giving pro forma effect to the Acquisition and
Permitted Acquisitions consummated in such preceding fiscal year as if the
Acquisition or such Permitted Acquisitions, as the case may be, had occurred as
of the first day of such fiscal year.
SECTION 6.09. Interest Coverage Ratio. Permit the Interest Coverage
Ratio for any period of four consecutive fiscal quarters, in each case taken as
one accounting period, ending on a date or during any period set forth below to
be less than the amount set forth opposite such date or period below:
Date or Period Ratio
March 31, 2002 through December 31, 2002 2.25:1.0
January 1, 2003 through December 31, 2003 2.50:1.0
January 1, 2004 and thereafter 3.00:1.0
SECTION 6.10. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters, in each case
taken as one accounting period, to be less than 1.05 to 1.0.
SECTION 6.11. Maximum Leverage Ratio. Permit the Leverage Ratio for any
period of four consecutive fiscal quarters, in each case taken as one accounting
period, to be greater than 4.0 to 1.0.
SECTION 6.12. Senior Leverage Ratio. Permit the Senior Leverage Ratio
at any time during a period set forth below to be greater than the ratio set
forth opposite such period below:
Date or Period Ratio
January 1, 2002 through December 31, 2003 2.50:1.0
January 1, 2004 and thereafter 2.25:1.0
SECTION 6.13. [Intentionally Omitted].
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SECTION 6.14. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-laws and Certain Other
Agreements, etc. (a) Amend or modify, or permit the amendment or modification
of, any provision of existing Indebtedness or of any agreement (including any
purchase agreement, indenture, loan agreement or security agreement) relating
thereto other than any amendments or modifications to Indebtedness which do not
in any way materially adversely affect the interests of the Lenders, (b) make
(or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of,
any Senior Subordinated Notes; provided that the Borrower may use (i) the
Borrower's Portion of Excess Cash Flow and (ii) the Net Cash Proceeds of any
Equity Issuance occurring after the Restatement Date that were not required to
be applied to the prepayment of Term Loans as described in Section 2.13(d), to
optionally prepay, repurchase, redeem, defease or otherwise retire any Senior
Subordinated Notes, so long as (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (ii) the amount so
expended shall not exceed $30,000,000 in the aggregate and (iii) any amounts so
expended in excess of $20,000,000 shall be deemed to reduce the ability of the
Borrower to repurchase Borrower Common Stock pursuant to Section 6.06(a)(iii) by
the amount of such excess for the fiscal year in which made and in the
aggregate, (c) amend or modify, or permit the amendment or modification of, the
Purchase Agreement or any of the operating agreements entered into in connection
therewith or any tax sharing agreement, in each case except for amendments or
modifications which are not in any way adverse in any material respect to the
interests of the Lenders, (d) amend, modify or change its Certificate of
Incorporation (including by the filing or modification of any certificate of
designation) or By-laws, or any agreement entered into by it, with respect to
its Equity Interests (including any shareholders' agreement), or enter into any
new agreement with respect to its Equity Interests, other than any amendments,
modifications or changes pursuant to this clause (d) or any such new agreements
pursuant to this clause (d) which do not in any way materially adversely affect
the interests of the Lenders; provided that nothing in this clause (d) shall
prevent the Borrower or any of its Subsidiaries from amending its Certificate of
Incorporation or By-laws to provide indemnification to any officer or director
of the Borrower or any such Subsidiary to the maximum extent permitted by the
law of its jurisdiction of incorporation or (e) amend, modify or change, or
permit the amendment, modification or change of, the charter, by-laws or other
organizational documents of each of Anteon VDS Foreign Enterprises LLC and
Anteon VDS Foreign Investments LLC, each a Delaware limited liability company
and wholly owned subsidiary of the Borrower, to permit such companies to engage
in any activity other than owning all the outstanding shares of capital stock of
Yuhan Hoeysa Anteon VDS-Korea.
SECTION 6.15. Limitation on Creation of Subsidiaries. Establish or
create any additional Subsidiaries; provided that the Borrower may establish or
create one or more Subsidiaries of the Borrower so long as (a) at least 80% of
the Equity Interests of such Subsidiary is owned by the Borrower or a wholly
owned Subsidiary, (b) 100% of the Equity Interests so owned by Borrower or such
Subsidiary of any new Subsidiary (except that not more than 65% of the voting
Equity Interests of any Foreign Subsidiary owned by a Loan Party shall be
required to be so pledged) is upon the creation or establishment of any such new
Subsidiary pledged and delivered to the Collateral Agent for the benefit of the
Secured Parties under the Pledge Agreement and (c) upon the creation or
establishment of any such new Domestic Subsidiary such Domestic Subsidiary
becomes a party to the applicable Security Documents in accordance with Section
5.12 and the other Loan Documents (and if such new Domestic Subsidiary is not a
wholly owned Subsidiary of Borrower, each owner of any minority Equity Interest
in such new Domestic Subsidiary shall have consented to such new Domestic
Subsidiary becoming party to the applicable Security Documents and
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other Loan Documents and executed an acknowledgment, waiver and consent
substantially in the form of Exhibit M).
SECTION 6.16. Business. Engage (directly or indirectly) in any
business other than the business in which the Borrower and its Subsidiaries are
engaged on the Restatement Date and other businesses reasonably related thereto.
SECTION 6.17. Designated Senior Indebtedness. Designate any
indebtedness as "Designated Senior Indebtedness" for purposes of the Senior
Subordinated Note Indenture unless the Required Lenders specifically consent
thereto in writing.
SECTION 6.18. Fiscal Year. With respect to the Borrower, change its
fiscal year end to a date other than December 31.
SECTION 6.19. Maintenance of Accounts. With respect to the Borrower and
the Domestic Subsidiaries, maintain any bank account, other than payroll and
▇▇▇▇▇ cash accounts, with any financial institution that is not a Lender.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Fee or L/C Disbursement or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a) insofar as it relates to the existence of the Borrowers, 5.05 or
5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
any Loan Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 20 days after notice thereof
from the Administrative Agent or any Lender to the Borrower;
78
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any one or more items of
Indebtedness in a principal amount in excess of $3,000,000 in the aggregate,
when and as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any Subsidiary, or of a substantial part of the
property or assets of the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
the property or assets of the Borrower or a Subsidiary or (iii) the winding-up
or liquidation of the Borrower or any Subsidiary; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(h) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
or for a substantial part of the property or assets of the Borrower or any
Subsidiary, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events, could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $5,000,000;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to the
extent that any such loss of perfection or priority results from the failure of
the Collateral Agent to maintain possession of certificates representing
securities pledged under
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the Pledge Agreement and except to the extent that such loss is covered by a
lender's title insurance policy and the related insurer promptly after such loss
shall have acknowledged in writing that such loss is covered by such title
insurance policy;
(l) any of the Obligations shall cease to constitute "Senior
Indebtedness" under and as defined in the Senior Subordinated Note Indenture;
(m) there shall have occurred a Change in Control; or
(n) (i) A notice of debarment, notice of suspension or notice of
termination for default shall have been issued under any Government Contract;
(ii) the Borrower is barred or suspended from contracting with any part of the
Government; (iii) a Government investigation shall have resulted in a criminal
or civil liability in excess of $5,000,000; (iv) the actual termination of any
Material Contract due to alleged fraud, wilful misconduct, neglect, default or
any other wrongdoing; or (v) a cure notice (other than any immaterial cure
notice under any General Services Administration contract) issued under any
Government Contract shall remain uncured (subject to expiration of extensions
that may have been received) beyond (A) the expiration of the time period
available to the Borrower pursuant to such Government Contract and/or such cure
notice, to cure the noticed default, or (B) the date on which the other
contracting party is entitled to exercise its rights and remedies under the
Government Contract as a consequence of such default;
then, and in every such event (other than an event with respect to a Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrowers, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to a Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrowers accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrowers, anything contained herein or in any other
Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
Credit Suisse First Boston is hereby appointed to act as Administrative Agent
and Citizens Bank is hereby appointed to act as Collateral Agent, each on behalf
of the Lenders and the Issuing Bank. Each of the Lenders and each assignee of
any such Lender, hereby irrevocably authorizes the Agents to take such actions
on behalf of such Lender or assignee or the Issuing Bank and to exercise such
powers as are specifically delegated to the Agents by the terms and provisions
80
hereof and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and the Issuing Bank, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders and the Issuing Bank
all payments of principal of and interest on the Loans, all payments in respect
of L/C Disbursements and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender or the Issuing Bank its proper share of
each payment so received; (b) to give notice on behalf of each of the Lenders to
the Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower or any other Loan Party
pursuant to this Agreement or the other Loan Documents as received by the
Administrative Agent. Without limiting the generality of the foregoing, the
Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or the Issuing Bank of any of its obligations hereunder or to any Lender
or the Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agree ment unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrowers. Upon any such resignation, the Required Lenders shall have the
right (with the consent of the Borrowers, not to be unreasonably withheld) to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment
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within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
(with the consent of the Borrowers, not to be unreasonably withheld) which shall
be a bank with an office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on the aggregate amount of its outstanding
Term Loans and Revolving Credit Commitments hereunder) of any expenses incurred
for the benefit of the Lenders by the Agents, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, that shall not have been reimbursed by the Borrowers and (b) to
indemnify and hold harmless each Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, 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 it in
its capacity as Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower or any other Loan Party,
provided that no Lender shall be liable to an Agent or any such other
indemnified person for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Agent or any of its directors, officers, employees or agents. Each Revolving
Credit Lender agrees to reimburse the Issuing Bank and its directors, employees
and agents, in each case, to the same extent and subject to the same limitations
as provided above for the Agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by fax, as follows:
(a) if to the Borrowers, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(Fax No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Madison Avenue, New York, New York 10010, Attention of
▇▇▇▇▇ ▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Credit Suisse First
Boston, at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Collateral Agent, to Citizens Bank of
Pennsylvania, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to a Lender, to it at its address (or fax number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by fax
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
Any party may change its address for notices by giving notice of such change to
each party in accordance with this Section 9.01
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation
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made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of the Restatement Required Lenders,
and thereafter shall be binding upon and inure to the benefit of the Borrowers,
the Agents, the Issuing Bank, the Swingline Lender and the Lenders and their
respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrowers, the Administrative
Agent, the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of a Lender, (x) the Borrowers and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Bank and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed);
provided, however, that the consent of the Borrowers shall not be required to
any such assignment during the continuance of any Event of Default described in
subsection (g) or (h) of Article VII, and (y) the amount of the Commitment or
Loan of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $2,500,000, if in
respect of a Revolving Credit Commitment or a Revolving Loan, or $1,000,000, if
in respect of a Term Loan Commitment or a Term Loan (or, if less, the entire
remaining amount of such Lender's applicable Commitment) or such lesser amount
as the Borrowers and the Administrative Agent may from time to time agree (such
agreement to be conclusively evidenced by the execution of the related
Assignment and Acceptance by all the parties thereto), (ii) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together (except in the case of any assignment to an
Affiliate or a Related Fund) with a processing and recordation fee of $3,500 and
(iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with
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each other and the other parties hereto as follows: (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and that its Term Loan
Commitment and Revolving Credit Commitment, and the outstanding balances of its
Term Loans and Revolving Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto, or
the financial condition of the Borrower or any Subsidiary or the performance or
observance by the Borrower or any Subsidiary of any of its obligations under
this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) 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 3.05(a) or
delivered pursuant to Section 5.04 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; (v) such assignee will independently and
without reliance upon the Administrative Agent, the Collateral Agent, such
assigning Lender or any other Lender 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; (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrowers, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank, the Collateral
Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrowers, the Swingline
Lender, the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance and (ii)
record the information contained therein in the Register. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
85
(f) Each Lender may without the consent of the Borrowers, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 and shall be bound by the confidentiality provisions
contained in Section 9.16 to the same extent as if they were Lenders and (iv)
the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrowers relating to
the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
increasing or extending the Commitments or releasing all or substantially all
the Guarantors or the Collateral). All amounts payable by the Borrowers to any
Lender hereunder in respect of any Loan and the applicability of the cost
protection provisions contained in Section 2.14, 2.16 and 2.20 shall be
determined as if such Lender had not sold or agreed to sell any participation in
such Loan, and as if such Lender were funding the participated portion of such
Loan the same way that it is funding the portion of such Loan in which no
participation has been sold.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender or in support
of obligations owed by such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrowers, the option to provide to the
Borrowers all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrowers pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall
86
remain with the Granting Lender). 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 indebtedness
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 proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 9.04, any SPC may (i) with notice to, but without the prior
written consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by the Borrowers and Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC.
(j) The Borrowers shall not assign or delegate any of their rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank and each Lender, and any attempted assignment without such
consent shall be null and void.
(k) In the event that S&P, ▇▇▇▇▇'▇, and ▇▇▇▇▇▇▇▇'▇ BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Revolving Credit Lender, downgrade the long-term certificate deposit
ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and
C (or BB, in the case of a Lender that is an insurance company (or B, in the
case of an insurance company not rated by InsuranceWatch Ratings Service)), then
the Issuing Bank shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its reasonable efforts to replace) such Lender
with an assignee (in accordance with and subject to the restrictions contained
in paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
(l) Notwithstanding the foregoing, the processing and recordation fee
payable to the Administrative Agent pursuant to paragraph (b) above shall be
waived in connection with any assignment made to either (i) a person that is not
a bank, an investment bank or an Affiliate of a bank or an investment bank or
(ii) a bank, an investment bank or an Affiliate of a bank or an investment bank
(a "Financial Institution") which has, to the satisfaction of the Administrative
Agent, announced and adopted a general policy that (x) is in effect on the date
of the proposed assignment, (y) is binding on such Financial Institution and (z)
provides that such Financial Institution has agreed to waive its rights to
receive all similar processing, recordation or assignment fees which would be
payable as a result of an assignment by any person of any commitments, loans or
other extensions of credit under a syndicated leveraged credit facility.
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SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree to pay all
out-of- pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Swingline Lender in connection with the
syndication of the credit facilities provided for herein and the preparation and
administration of this Agreement and the other Loan Documents or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions hereby or thereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Collateral Agent or
any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the fees,
charges and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrowers agree to indemnify the Administrative Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, officers, trustees,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way to the Borrower or
the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrowers against any of and all the
obligations of the Borrowers now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in
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addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY
THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrowers or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrowers in any case
shall entitle the Borrowers to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) decrease other than on a pro rata basis or
increase or extend the Commitment or decrease or extend the date for payment of
the Commitment Fees of any Lender without the prior written consent of such
Lender, (iii) amend or modify the pro rata requirements of Section 2.17, the
provisions of Section 9.04(j), the provisions of this Section, the definition of
the term "Required Lenders" or release any Guarantor (other than pursuant to a
permitted sale or liquidation of a Subsidiary Guarantor) or all or any
substantial part of the Collateral, without the prior written consent of each
Lender, (iv) amend or modify the protections afforded to an SPC pursuant to the
provisions of Section 9.04(i) without the written consent of such SPC or (v)
increase the advance rates set forth in the definition of the term "Borrowing
Base" in Section 1.01 or change the definition of the term "Eligible Billed
Borrowing Base Receivables", "Eligible Unbilled Borrowing Base Receivables" or
"Eligible Margin Stock Amount" without the prior written consent of the
Supermajority Lenders; provided further that no such agreement shall
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amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder
or under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender, respectively. Notwithstanding the foregoing, if the Borrower shall
request the release of any Collateral to be sold as part of any Asset Sale
permitted under Section 6.05 and shall deliver to the Collateral Agent a
certificate to the effect that such Asset Sale and the disposition of the
proceeds thereof will comply with the terms of this Agreement, the Collateral
Agent, if satisfied that the applicable certificate is correct, shall and is
hereby authorized to, without the consent of any Lender, execute and deliver all
such instruments as may be required to effect the release of such Collateral.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letters, the
Collateral Agent's Fee Letter, the other Loan Documents and, prior to the
Tranche B Funding Date, the Commitment Letter, constitute the entire contract
between the parties relative to the subject matter hereof. Any other previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any person (other than the parties hereto and thereto, their
respective successors and assigns permitted hereunder (including any Affiliate
of the Issuing Bank that issues any Letter of Credit) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Collateral Agent, the Issuing Bank and the Lenders) any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents. Pursuant to the Fee Letter dated October 15, 2002, the
Borrower has given Credit Suisse First Boston the right to change certain of the
terms of the Tranche B Credit Facility in connection with the syndication
thereof. Prior to the Tranche B Funding Date, any such changes may be effected
pursuant to an amendment to this Agreement that is executed by the Borrower and
Lenders holding a majority of the Term Loan Commitments.
SECTION 9.11. 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
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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 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforce able provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
the Borrowers 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 the Borough of
Manhattan 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 the other
Loan Documents, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrowers or their respective properties in the courts of any jurisdiction.
(b) Each of the Borrowers hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or here after 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 such 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.
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(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its reasonable best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and all
copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to a potential assignee or
participant of such Lender or any direct or indirect contractual counterparty in
any swap agreement relating to the Loans or such potential assignee's or
participant's or counterparty's advisors who need to know such Information
(provided that any such potential assignee or participant or counterparty shall,
and shall use its reasonable best efforts to cause its advisors to, keep
confidential all such Information on the terms set forth in this Section 9.16),
(c) to the extent requested by any regulatory authority, (d) to the extent
otherwise required by applicable laws and regulations or by any subpoena or
similar legal process, (e) in connection with any suit, action or proceeding
relating to the enforcement of its rights hereunder or under the other Loan
Documents or (f) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section 9.16 or (ii) becomes
available to the Administrative Agent, the Issuing Bank, any Lender or the
Collateral Agent on a nonconfidential basis from a source other than the
Borrowers. For the purposes of this Section, "Information" shall mean all
financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender based on any of the
foregoing) that are received from the Borrowers and related to the Borrowers,
any shareholder of the Borrowers or any employee, customer or supplier of the
Borrowers, other than any of the foregoing that were available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrowers, and
which are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential or of such a nature that a
prudent person would expect such Information to be confidential. The provisions
of this Section 9.16 shall remain operative and in full force and effect
regardless of the expiration and term of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ANTEON INTERNATIONAL
CORPORATION,
by:
-------------------------
Name:
Title:
ANTEON CORPORATION,
by:
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman
Islands branch, individually and as
Administrative Agent and Issuing Bank,
by:
-------------------------
Name:
Title:
by:
--------------------------
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA,
individually and as Collateral Agent
and Swingline Lender,
by:
-------------------------
Name:
Title:
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SIGNATURE PAGE TO THE
ANTEON INTERNATIONAL
CORPORATION AMENDED
AND RESTATED CREDIT
AGREEMENT DATED AS OF
THE DAY AND YEAR FIRST
ABOVE WRITTEN
Name of Lender: ________________________________
by:________________________________
Name:
Title:
