EXHIBIT 10.20
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REVOLVING CREDIT AGREEMENT
dated as of December 29, 2004
among
CHOICEPOINT INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
SUNTRUST BANK,
as Syndication Agent,
and
BNP PARIBAS,
as Documentation Agent
WACHOVIA CAPITAL MARKETS, LLC and SUNTRUST CAPITAL MARKETS, INC.,
as Co-Lead Arrangers
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Book Runner
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SCHEDULES
SCHEDULE 1.1(a) - Syndicated Lenders and Syndicated Loan Commitments
SCHEDULE 1.1(b) - Existing Letters of Credit
SCHEDULE 1.1(c) - Mandatory Cost Formulae
SCHEDULE 5.13 - Organization and Ownership of Subsidiaries
SCHEDULE 5.22 - Outstanding Indebtedness
EXHIBITS
EXHIBIT A - Form of Syndicated Note
EXHIBIT B - Form of Swing Line Note
EXHIBIT C - Form of Guaranty Agreement
EXHIBIT D - Form of Contribution Agreement
EXHIBIT E - Form of Closing Certificate
EXHIBIT F-1 - Form of Opinion of ▇▇▇▇▇ Day
EXHIBIT F-2 - Form of Opinion of in-house general counsel
EXHIBIT G - Form of Assignment and Acceptance Agreement
EXHIBIT H - Form of Compliance Certificate
EXHIBIT I - Form of Notice of Borrowing
EXHIBIT J - Form of Notice of Conversion/Continuation
EXHIBIT K - Form of Notice of Account Designation
EXHIBIT L - Form of Notice of Prepayment
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT made and entered into as of December 29,
2004, by and among CHOICEPOINT INC., a Georgia corporation ("Borrower"),
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
("Wachovia"), the other banks and lending institutions listed on the signature
pages hereof, and any assignees of Wachovia, or such other banks and lending
institutions which become "Lenders" as provided herein (Wachovia, and such other
banks, lending institutions and assignees are referred to collectively herein as
the "Lenders"), and Wachovia, in its capacity as Administrative Agent for the
Lenders and each successor Administrative Agent for such Lenders as may be
appointed from time to time pursuant to Article IX hereof (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders extend to Borrower
certain credit facilities, amend and restate the Existing Credit Agreement and
the Lenders are willing to do so, on the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, Borrower, the Lenders and the Administrative Agent agree as
follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" shall mean Wachovia in its capacity as
Administrative Agent hereunder, and any successor Administrative Agent appointed
pursuant to Section 9.10.
"Administrative Agent's Correspondent" shall mean Wachovia Bank, National
Association, London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternative Currency Loans.
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under (i) the Syndicated Loans, which Advances shall be
made or outstanding as Base Rate Advances or Eurodollar Advances, as the case
may be, and (ii) the Swing Line Loans, which Advances shall be made or
outstanding as Swing Line Advances.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by", and "under common control with") as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person.
"Agreement" shall mean this Revolving Credit Agreement, as amended,
modified, restated, or supplemented from time to time.
"Alternative Currency" shall mean (a) Euro, (b) Pounds Sterling and (c)
with the prior written consent of each Lender, any other lawful currency (other
than Dollars); provided that such currency is freely transferable and
convertible into Dollars in the United States currency market and freely
available to each Lender in the London interbank deposit market.
"Alternative Currency Amount" shall mean, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency at the most favorable spot exchange rate for the purchase
of such Alternative Currency with Dollars, as determined by the Administrative
Agent or the Issuing Lender, as applicable, at approximately 11:00 a.m. (the
time of the Administrative Agent's Correspondent) two (2) Business Days prior to
the date on which the foreign exchange computation is made.
"Alternative Currency Commitment" shall mean the lesser of (a)
$200,000,000 and (b) the total Syndicated Loan Commitments.
"Alternative Currency Letter of Credit" shall mean any Letter of Credit
denominated in an Alternative Currency.
"Alternative Currency Loan" shall mean any Syndicated Loan denominated in
an Alternative Currency.
"Applicable Commitment Percentage" shall mean the percentage designated on
the chart set forth below based on Borrower's ratio of Funded Debt to
Consolidated EBITDA, measured quarterly, effective in the second fiscal quarter
immediately following the date of delivery of the Compliance Certificate to the
Administrative Agent:
FUNDED DEBT TO CONSOLIDATED APPLICABLE COMMITMENT
LEVEL EBITDA RATIO PERCENTAGE
----- ---------------------------------------- ---------------------
I Greater than or equal to 2.00 to 1.00 0.250%
II Greater than or equal to 1.50 to 1.00, but 0.200%
less than 2.00 to 1.00
III Greater than or equal to 1.00 to 1.00, but 0.175%
less than 1.50 to 1.00
IV Greater than or equal to 0.50 to 1.00, but 0.150%
less than 1.00 to 1.00
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V Less than 0.50 to 1.00 0.125%
For purposes of the foregoing, (i) the Applicable Commitment Percentage on the
Closing Date shall be based on the certificate delivered pursuant to Section
4.01(xvi) until the first calculation date following the receipt of the
Compliance Certificate for the fiscal quarter ending December 31, 2004 and (ii)
if Borrower fails to provide the Compliance Certificate and related financial
statements required by Section 6.07 within the applicable time period set forth
therein, the Applicable Commitment Percentage shall be adjusted to Level I on
the first day of the following fiscal quarter until such Compliance Certificate
and related financial statements are delivered.
"Applicable Margin" shall mean the percentage designated on the chart set
forth below based on Borrower's ratio of Funded Debt to Consolidated EBITDA,
measured quarterly, effective in the second fiscal quarter immediately following
the date of delivery of the Compliance Certificate to the Administrative Agent:
FUNDED DEBT TO CONSOLIDATED
LEVEL EBITDA RATIO APPLICABLE MARGIN
----- ------------------------------------------ -----------------
I Greater than or equal to 2.00 to 1.00 1.000%
II Greater than or equal to 1.50 to 1.00, but 0.800%
less than 2.00 to 1.00
III Greater than or equal to 1.00 to 1.00, but 0.575%
less than 1.50 to 1.00
IV Greater than or equal to 0.50 to 1.00, but 0.475%
less than 1.00 to 1.00
V Less than 0.50 to 1.00 0.375%
For purposes of the foregoing, (i) the Applicable Margin on the Closing Date
shall be based on the certificate delivered pursuant to Section 4.01(xvi) until
the first calculation date following the receipt of the Compliance Certificate
for the fiscal quarter ending December 31, 2004 and (ii) if Borrower fails to
provide the Compliance Certificate and related financial statements required by
Section 6.07 within the applicable time period set forth therein, the Applicable
Margin shall be adjusted to Level I on the first day of the following fiscal
quarter until such Compliance Certificate and related financial statements are
delivered.
"Application" shall mean an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Asset Sale" shall mean any sale or other disposition (or a series of
related sales or other dispositions), including without limitation, loss,
damage, destruction or taking to the extent not covered by insurance, by any
Consolidated Company to any Person other than a Consolidated Company, of any
property or asset (including Capital Stock but excluding the issuance and sale
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by Borrower of its own Capital Stock), other than sales or other dispositions
made in the ordinary course of business of any Consolidated Company.
"Asset Securitization" shall mean the asset securitization program entered
into by the Receivable Subsidiaries and Three Pillars Funding Corporation;
provided that the outstanding attributed principal amount of such program shall
not at any time exceed $175,000,000.
"Asset Securitization Agreements" shall mean those documents which govern
the Asset Securitization (as the same may be amended, restated, supplemented or
otherwise modified from time to time as permitted by this Agreement).
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of EXHIBIT G.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as amended and
in effect from time to time (11 U.S.C. Section 101 et seq.).
"Base Rate" shall mean the higher of (with any change in the Base Rate to
be effective as of the date of change of either of the following rates):
(a) the rate which the Administrative Agent so denominates and
sets from time to time to be its prime lending rate, as in effect from time to
time, and
(b) the Federal Funds Rate, as in effect from time to time, plus
one-half of one percent (0.50%) per annum.
The Administrative Agent's prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate charged to customers; the
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as (i) a
Syndicated Loan bearing interest based on the Base Rate or (ii) an Advance
bearing interest at the rate agreed upon between Borrower and the Lenders
pursuant to Section 3.07, Section 3.08 or Section 3.09.
"Bond Obligations" shall mean all obligations of the Consolidated
Companies arising under or pursuant to that certain Lease Agreement (the
"Equipment Lease") dated as of December 1, 2001, by and between Development
Authority of ▇▇▇▇▇▇ County, as lessor of certain equipment described therein
(the "Lessor"), and Borrower, as lessee of such equipment (in such capacity, the
"Lessee"), and all other instruments, documents, and agreements relating to such
lease or that certain $30,000,000 Development Authority of ▇▇▇▇▇▇ County Taxable
Industrial Development Revenue Bond (ChoicePoint Inc. Project), Equipment Series
(the "Bond"), including, without limitation, that certain Bond Guaranty
Agreement dated as of December 31, 2001, issued by Borrower, in its capacity as
guarantor (in such capacity, the
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"Bond Guarantor") in favor of Borrower, in its capacity as purchaser of the Bond
(the "Bond Purchaser") pursuant to which the Bond Guarantor unconditionally
guaranteed payment and performance of the debt service on the Bond for the
benefit of the Bond Purchaser (the Bond Purchaser having financed the
acquisition by the Lessor of the equipment which was leased to the Lessee), and,
since Borrower is the Lessee, the Bond Purchaser and the Bond Guarantor, the
Bond Obligations are not required to be classified as a liability of Borrower in
accordance with GAAP.
"Borrower" shall mean ChoicePoint Inc., a Georgia corporation, and its
successors.
"Borrowing" shall mean the incurrence by Borrower under any Facility of
Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are required or authorized to close in
Charlotte, North Carolina and New York, New York.
"Capital Stock" shall mean, with respect to any Person, all capital stock
of such Person, whether voting or nonvoting, including common stock and
preferred stock of such Person.
"Change in Control Provision" shall mean any term or provision contained
in any indenture, debenture, note, or other agreement or document evidencing or
governing Indebtedness of Borrower evidencing debt or a commitment to extend
loans in excess of $5,000,000 which requires, or permits the holder(s) of such
Indebtedness of Borrower to require that such Indebtedness of Borrower be
redeemed, repurchased, defeased, prepaid or repaid, either in whole or in part,
or the maturity of such Indebtedness of Borrower to be accelerated in any
respect, as a result of a change in ownership of the Capital Stock of Borrower
or voting rights with respect thereto.
"Closing Date" shall mean the date of this Agreement or such later
Business Day upon which the conditions set forth in Section 4.01 are satisfied
or waived in accordance with Section 10.02.
"Commitment" shall mean (i) for any Syndicated Lender at any time, its
Syndicated Loan Commitment, (ii) for the Swing Line Lender at any time, its
Swing Line Commitment, and (iii) for the Issuing Lender at any time, its L/C
Commitment, in each case as the context may require.
"Compliance Certificate" shall have the meaning set forth in Section
6.07(c).
"Consolidated Companies" shall mean, collectively, Borrower and all of its
Subsidiaries other than the Receivables Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of Borrower, an
amount equal to (A) the sum for such fiscal period of Consolidated Net Income
(Loss) and, to the extent deducted in determining such Consolidated Net Income
(Loss), provisions for (i) taxes based on income
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and (ii) Consolidated Interest Expense, minus (B) any items of gain (or plus any
items of loss) which were included in determining such Consolidated Net Income
(Loss) and were (x) not realized in the ordinary course of business (whether or
not classified as "ordinary" by GAAP), (y) the result of any sale of assets, or
(z) resulting from minority investments, together in the case of (x), (y) or
(z), any related provision for taxes included in Consolidated Net Income (Loss)
with respect thereto, plus (C) non-recurring non-cash charges, including without
limitation, accruals related to any acquisition and earnouts incurred in
connection with any acquisition to the extent not paid in cash. For purposes of
this Agreement, Consolidated EBIT shall be adjusted on a pro forma basis, in a
manner reasonably acceptable to the Administrative Agent, to include, as of the
first day of any applicable period, any acquisition closed during such period,
including, without limitation, adjustments reflecting any non-recurring costs
and any extraordinary expenses of any acquisition closed during such period
calculated on a basis consistent with GAAP and Regulation S-X of the Securities
Exchange Act of 1934, as amended, or as approved by the Administrative Agent.
"Consolidated EBITDA" shall mean, for any four fiscal-quarter period of
Borrower, an amount equal to the sum of (A) Consolidated EBIT plus (B)
depreciation and amortization expense to the extent deducted in determining
Consolidated Net Income (Loss), plus (C) without duplication, the sum of the
following items to the extent not included in Consolidated EBITDA for such
period:
(1) the net income (or net loss) for such four fiscal-quarter
period of any Person which became a Subsidiary during such period (a "New
Subsidiary");
(2) the net income (or net loss) derived during such four
fiscal-quarter period from any assets acquired by any Consolidated Company
during such period ("New Assets");
(3) the sum of (x) taxes based on income, (y) Consolidated
Interest Expense and (z) depreciation and amortization expense, in each case to
the extent deducted in determining net income of any New Subsidiary or derived
from any New Assets during such four fiscal-quarter period, minus any items of
gain (or plus any items of loss) which were included in determining such net
income and were (aa) not realized in the ordinary course of business (whether or
not classified as "ordinary" by GAAP), (bb) the result of any sale of assets, or
(cc) resulting from minority investments, together in the case of (aa), (bb) or
(cc), any related provision for taxes included in such net income with respect
thereto; and
(4) non-recurring non-cash charges of any New Subsidiary or
derived from any New Assets during such four fiscal-quarter period, including
without limitation, accruals related to any acquisition and earnouts incurred in
connection with any acquisition to the extent not paid in cash.
"Consolidated Interest Expense" shall mean, for any fiscal period of
Borrower, total interest expense of the Consolidated Companies and the
Receivables Subsidiaries (including, without limitation, interest expense
attributable to capitalized leases, all net payment obligations pursuant to swap
agreements (as defined in 11 U.S.C. Section 101), all commissions, discounts and
other fees and charges owed with respect to bankers acceptance financing, and
total interest
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expense (whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility (including, without
limitation, the Asset Securitization)) determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period of
Borrower, the net income (or loss) of the Consolidated Companies and the
Receivables Subsidiaries for such period (taken as a single accounting period),
but excluding therefrom (to the extent otherwise included therein) the income of
any Consolidated Company or any Receivables Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Consolidated Company or Receivables Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation.
"Consolidated Net Worth" shall mean, without duplication, as of any date
of determination, shareholders' equity of the Consolidated Companies, determined
on a consolidated basis in conformity with GAAP.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Credit Documents" shall mean, collectively, this Agreement, the Notes,
the Applications, the Guaranty Agreements, and all other documents, instruments,
certificates and opinions executed and delivered in connection with the
foregoing.
"Credit Parties" shall mean, collectively, each of Borrower, the
Guarantors, and every other Person who from time to time executes a supplement
to the Guaranty Agreements with respect to all or any portion of the
Obligations.
"Default" shall mean any condition or event which, with notice or lapse of
time or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender that (a) has failed to fund any
portion of the Syndicated Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless such amount is the subject of a good faith dispute, or (c)
has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of the
United States of America.
"Dollar Amount" shall mean, at any time, (a) with respect to any amount
denominated in Dollars, such amount and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars at the most favorable spot exchange rate for
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the purchase of Dollars with such Alternative Currency, as determined by the
Administrative Agent or the Issuing Lender, as applicable, at approximately
11:00 a.m. (the time of the Administrative Agent's Correspondent) two (2)
Business Days prior to the date on which the foreign exchange computation is
made.
"Eligible Assignee" shall mean any of the following (i) a commercial bank
organized under the laws of the United States, or any State thereof, and having
total assets in excess of $100,000,000; (ii) a savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $100,000,000; (iii) a commercial
bank organized under the laws of any other country having total assets in excess
of $100,000,000, provided that such bank is acting through a branch or agency
located in the United States; (iv) a finance company, insurance company or other
financial institution, lender or fund (whether a corporation, partnership or
other entity) which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business, and having total assets
in excess of at least $100,000,000; (v) any Lender or any Affiliate of any
Lender; or (vi) any other Person consented to by Borrower and the Administrative
Agent, such consent not unreasonably to be withheld.
"EMU" shall mean economic and monetary union as contemplated in the Treaty
on European Union.
"EMU Legislation" shall mean legislative measures of the Council of
European Union for the introduction of, change over to or operation of the Euro.
"Environmental Laws" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material or exposure to
asbestos or asbestos containing material), relating to pollution or protection
of the environment and relating to public health and safety, relating to (i)
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks and
related piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. Section 7401 et seq.), (ii) the Clean Water Act (33 U.S.C.
Section 1251 et seq.), (iii) the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), (iv) the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), (v) the Comprehensive Environmental Response Compensation
and Liability Act, as amended by the Superfund Amendments and Reauthorization
Act (42 U.S.C. Section 9601 et seq.), and (vi) all applicable national and local
laws or regulations with respect to environmental control (including applicable
laws of the Federal Republic of Germany or any applicable international
agreements).
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each trade or
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"Euro" shall mean the single currency to which the Participating Member
States of the EMU have converted.
"Eurodollar Advance" shall mean an Advance made or outstanding as a
Syndicated Loan bearing interest based on LIBOR.
"Eurodollar Business Day" shall mean a Business Day (a) on which trading
is carried on by and between banks in deposits for the applicable Permitted
Currency in the London interbank market and (b) on which banks are open for the
conduct of their domestic and international banking business in the place where
the Administrative Agent or the Administrative Agent's Correspondent shall make
available Loans in such Permitted Currency. Notwithstanding the foregoing, with
respect to any amount denominated or to be denominated in the Euro, any
reference to a "Business Day" shall be construed as a reference to a TARGET Day.
"Eurodollar Reserve Percentage" shall mean, for any Lender which is a
member bank of the Federal Reserve System and with respect to any Eurodollar
Advance denominated in Dollars, on any day that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the reserve
requirement for such Lender in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Advances is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents).
"Event of Default" shall have the meaning provided in Article VIII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute thereto.
"Executive Officer" shall mean, with respect to any Person, Chief
Executive Officer, President, Chief Operating Officer, Chief Financial Officer,
the General Counsel, the Treasurer, any Assistant Treasurer and any Person
holding comparable offices or duties.
"Existing Credit Agreement" shall mean that certain Revolving Credit
Agreement dated as of May 10, 2002, by and among Borrower, the lenders party
thereto, SunTrust Bank, as administrative agent, and Wachovia Bank, National
Association, as syndication agent, as amended as of the date hereof.
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"Existing Letters of Credit" shall mean all letters of credit identified
on Schedule 1.1(b).
"Facility" or "Facilities" shall mean the credit facilities made available
to Borrower pursuant to the Syndicated Loan Commitments, the Swing Line
Commitment, and the L/C Facility, as the context may indicate.
"Facility Fee" shall have the meaning assigned to such term in Section
3.04.
"Federal Funds Rate" shall mean, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediately preceding Business Day.
"Foreign Plan" shall mean any pension, profit sharing, deferred
compensation, or other employee benefit plan, program or arrangement maintained
by any Foreign Subsidiary which, under applicable local law, is required to be
funded through a trust or other funding vehicle, but shall not include any
benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company that is
organized under the laws of a jurisdiction other than the United States of
America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money borrowed, Indebtedness
evidenced or secured by purchase money Liens, capitalized leases, outstandings
under asset securitization vehicles, conditional sales contracts and similar
title retention debt instruments, including any current maturities of the
foregoing, which by its terms matures more than one year from the date of any
calculation thereof or which is renewable or extendable at the option of the
obligor to a date beyond one year from such date. The calculation of Funded Debt
shall include (i) all Funded Debt of the Consolidated Companies and the
Receivables Subsidiaries, plus (ii) all Funded Debt of other Persons to the
extent guaranteed by a Consolidated Company or a Receivables Subsidiary, to the
extent supported by a letter of credit issued for the account of a Consolidated
Company or a Receivables Subsidiary, or as to which and to the extent which a
Consolidated Company or a Receivables Subsidiary or their respective assets
otherwise have become liable for payment thereof, plus (iii) the redemption
amount with respect to the stock of Borrower required to be redeemed during the
next succeeding twelve months at the option of the holder or its Subsidiaries.
Notwithstanding the foregoing, "Funded Debt" shall exclude (x) the Lease
Obligations, in an aggregate amount not to exceed $73,000,000 (but Lease
Obligations in excess of $73,000,000 shall be included in "Funded Debt"), and
(y) all operating lease obligations.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant
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segment of the accounting profession, which are applicable to the circumstances
as of the date of determination.
"Guarantors" shall mean, collectively, all Material Subsidiaries in
existence on the Closing Date and listed on Schedule 5.13, and all other
Material Subsidiaries formed, acquired or existing after the Closing Date, but
excluding all Foreign Subsidiaries and those Guarantors released from the
Guaranty Agreements pursuant to Section 10.13 or otherwise.
"Guaranty" shall mean any contractual obligation, contingent or otherwise,
of a Person with respect to any Indebtedness or other obligation or liability of
another Person, including without limitation, any such Indebtedness, obligation
or liability directly or indirectly guaranteed, endorsed, co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including contractual obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or any agreement to provide funds for the payment or discharge thereof
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make any payment other than for value received. The
amount of any Guaranty shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which guaranty is
made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Guaranty Agreements" shall mean, collectively, (i) the Guaranty
Agreement, dated as of even date herewith, executed by each of the Guarantors in
favor of the Lenders and the Administrative Agent, substantially in the form of
EXHIBIT C, as the same may be amended, restated or supplemented from time to
time and (ii) the Contribution Agreement, dated as of even date herewith,
executed by each of the Guarantors and Borrower in favor of the Lenders and the
Administrative Agent, substantially in the form of EXHIBIT D, as the same may be
amended, restated or supplemented from time to time.
"Hazardous Substances" shall have the meaning assigned to that term in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money and for the deferred purchase
price of property or services, and obligations evidenced by bonds, debentures,
notes or other similar instruments; (ii) all rental obligations under leases
required to be capitalized under GAAP; (iii) all Guaranties of such Person; (iv)
all obligations, contingent or otherwise, of such Person relative to the face
amount of letters of credit, whether or not drawn, including, without limitation
(but without duplication), any Reimbursement Obligations, and banker's
acceptances issued for the account of such Person; (v) Indebtedness of others
secured by any Lien upon property owned by such Person, whether or not assumed;
(vi) obligations or other liabilities under currency contracts, interest rate
hedging contracts, or similar agreements or combinations thereof to the extent
required to be disclosed in such Person's financial statements in accordance
with GAAP; (vii) the Lease
11
Obligations and (viii) the outstanding attributed principal amount under the
Asset Securitization or similar financing. Notwithstanding the foregoing,
"Indebtedness" shall exclude the Bond Obligations to the extent not required to
be classified as a liability in accordance with GAAP.
"Interest Period" shall mean as to any Eurodollar Advances, the interest
period selected by Borrower pursuant to Section 3.03(a).
"Investment" shall mean, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary course of business) or capital contribution by
such Person (by means of transfers of property to others or payments for
property or services for the account or use of others, or otherwise) to any
Person, or any direct or indirect purchase or other acquisition by such Person
of, or of a beneficial interest in, Capital Stock, partnership interests, bonds,
notes, debentures or other securities issued by any other Person. Each
Investment shall be valued as of the date made; provided that any Investment or
portion of an Investment consisting of Debt shall be valued at the outstanding
principal balance thereof as of the date of determination.
"ISP98" shall mean the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" shall mean (a) with respect to the Existing Letters of
Credit, SunTrust Bank, in its capacity as issuer thereof, and (b) with respect
to all Letters of Credit issued hereunder, Wachovia, in its capacity as issuer,
and any successor thereto.
"L/C Commitment" shall mean the lesser of (a) $25,000,000 and (b) the
total Syndicated Loan Commitments.
"L/C Facility" shall mean the letter of credit facility established
pursuant to Article IIA hereof.
"L/C Obligations" shall mean at any time, an amount equal to the sum of
(a) the aggregate undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 2A.05.
"L/C Participants" shall mean the collective reference to all the Lenders
other than the Issuing Lender.
"Lease Documents" shall mean, collectively, (i) that certain Lease
Agreement, dated as of July 31, 1997, by and between Borrower, as lessee, and
SunTrust Banks, Inc., as lessor, pursuant to which Borrower has leased its
office building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (ii)
that certain Master Agreement, dated as of July 31, 1997, by and among Borrower
as lessee, SunTrust Banks, Inc., as lessor and SunTrust Bank, Atlanta, as Agent,
(iii) that certain Lease Agreement, dated as of August 29, 2001, by and between
Borrower and certain of its Subsidiaries, as lessees, and Atlantic Financial
Group, Ltd., as lessor, as amended and restated by that certain Amended and
Restated Master Lease Agreement, dated
12
as of June 26, 2003, by and between Borrower, as lessee and SunTrust Equity
Funding, LLC, as lessor, pursuant to which Borrower has leased certain real
property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) that certain
Master Agreement, dated as of August 29, 2001, by and among Borrower and certain
of its Subsidiaries, as lessees, Borrower, as guarantor, Atlantic Financial
Group, Ltd., as lessor, and SunTrust Bank, as Agent, as amended and restated by
that certain Amended and Restated Master Agreement, dated as of June 26, 2003,
by and among Borrower as lessee, SunTrust Equity Funding, LLC, as lessor and
SunTrust Bank, as Agent, (v) Lease Agreement by the Development Authority of
▇▇▇▇▇▇ County, as lessor, and Atlantic Financial Group, Ltd., as lessee, dated
as of December 1, 2001, wherein, in connection with a Development Authority of
▇▇▇▇▇▇ County Taxable Industrial Development Revenue Bond (ChoicePoint Inc.
Project), Building Series, which bond is in the maximum principal amount of
$52,200,000, the property subject to the Master Agreement and the Lease
Agreement described in clauses (iii) and (iv) was transferred by Atlantic
Financial Group, Ltd. to Development Authority of ▇▇▇▇▇▇ County, leased back by
Atlantic Financial Group, Ltd. and subleased by Borrower from Atlantic Financial
Group, Ltd., still subject to such Master Agreement and the terms contained in
such Lease Agreement and (vi) all other documents, instruments and agreements
executed in connection therewith (as the same may be amended, restated,
supplemented or otherwise modified from time to time as permitted by this
Agreement).
"Lease Obligations" shall mean the obligations of Borrower under the Lease
Documents in an aggregate amount not to exceed $73,000,000, as such amount may
be increased pursuant to Section 7.12.
"Lender" or "Lenders" shall mean Wachovia, SunTrust Bank and the other
banks and lending institutions listed on the signature pages hereof, each other
bank or financial institution which becomes a Lender hereunder pursuant to
Section 2.05(c), and each assignee thereof, if any, pursuant to Section
10.06(c).
"Lending Office" shall mean for each Lender the office such Lender may
designate in writing from time to time to Borrower and the Administrative Agent
with respect to each Type of Loan.
"Letters of Credit" shall have the meaning assigned thereto in Section
2A.01 and shall include the Existing Letters of Credit.
"LIBOR" shall mean, for any Interest Period, with respect to Eurodollar
Advances under the Syndicated Loan Commitments, the offered rate for deposits in
the Permitted Currency in which such Eurodollar Advance is to be made, for a
period comparable to the Interest Period and in an amount comparable to the
Administrative Agent's portion of such Advances, appearing on Telerate Page 3750
(or the applicable Reuters Screen Page, as determined by the Administrative
Agent) as of 11:00 a.m. (London, England time) on the day that is two Eurodollar
Business Days prior to the first day of the Interest Period. If two or more of
such rates appear on such Telerate Page, the rate shall be the arithmetic mean
of such rates. If the foregoing rate is unavailable from Telerate for any
reason, then such rate shall be determined by the Administrative Agent from the
Reuters Screen LIBO Page or, if such rate is also unavailable on such service,
then on any other interest rate reporting service of recognized standing
designated in writing by the Administrative
13
Agent to Borrower and the other Lenders; in any such case rounded, if necessary,
to the next higher 1/100th of 1%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, lien, charge,
hypothecation, assignment, deposit arrangement, title retention, preferential
property right, trust or other arrangement having the practical effect of the
foregoing and shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
"Loans" shall mean, collectively, the Syndicated Loans and the Swing Line
Loans.
"Mandatory Cost" shall mean the percentage rate per annum calculated by
the Administrative Agent in accordance with Schedule 1.1(c).
"Margin Regulations" shall mean Regulation T, Regulation U and Regulation
X of the Board of Governors of the Federal Reserve System, as the same may be in
effect from time to time.
"Margin Stock" shall have the meaning set forth in the Margin Regulations.
"Materially Adverse Effect" shall mean any materially adverse change in
(i) the business, assets, liabilities, financial condition or results of
operations of the Consolidated Companies, taken as a whole, (ii) the ability of
Borrower to perform its obligations under this Agreement, or (iii) the ability
of the other Credit Parties (taken as a whole) to perform their respective
obligations under the Credit Documents.
"Material Subsidiary" shall mean each Subsidiary of Borrower, now existing
or hereafter established or acquired, that at any time prior to the Maturity
Date (i) has or acquires assets which constitute fifteen percent (15%) or more
of the Total Assets or (ii) accounts for or produces fifteen percent (15%) or
more of Consolidated EBITDA during any period of four (4) consecutive fiscal
quarters of Borrower; provided, that "Material Subsidiaries" (collectively with
Borrower) shall at all times constitute more than seventy-five percent (75%) of
Consolidated EBITDA for any period of four (4) consecutive fiscal quarters of
Borrower.
"Maturity Date" shall mean the earlier of (i) December 29, 2009, and (ii)
the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article VIII.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Syndicated Notes and the Swing Line
Note.
"Notice of Account Designation" shall have the meaning provided in Section
3.01(a).
"Notice of Borrowing" shall have the meaning provided in Section 2.06(a).
14
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 2.06(b).
"Notice of Prepayment" shall have the meaning provided in Section
3.05(a)(ii).
"Obligations" shall mean all amounts owing to the Administrative Agent or
any Lender pursuant to the terms of this Agreement or any other Credit Document,
including without limitation, all Loans (including all principal and interest
payments due thereunder), L/C Obligations, fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the Credit
Parties, direct or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof, and all existing and future obligations
of Borrower under any swap agreement (as defined in 11 U.S.C. Section 101) with
any Lender.
"Participant" shall have the meaning provided in Section 10.06(e).
"Participating Member State" shall mean each state so described in any EMU
Legislation.
"Payment Office" shall mean the office specified as the "Payment Office"
for the Administrative Agent on Schedule 1.1(a), or such other location as to
which the Administrative Agent shall have given written notice to Borrower and
the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Currency" shall mean Dollars or any Alternative Currency, or
each such currency, as the context requires.
"Permitted Liens" shall mean those Liens expressly permitted by Section
7.01.
"Person" shall mean any individual, limited liability company,
partnership, firm, corporation, association, joint venture, trust or other
entity, or any government or political subdivision or agency, department or
instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in Section 3(3)
of ERISA), including, but not limited to, any defined benefit pension plan,
profit sharing plan, money purchase pension plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits, but shall exclude any Foreign Plan.
"Pounds Sterling" shall mean, at any time of determination, the then
official currency of the United Kingdom of Great Britain and Northern Ireland.
"Pro Rata Share" shall mean, with respect to each of the Syndicated Loan
Commitments of each Syndicated Lender and each Syndicated Loan to be made by and
each payment (including, without limitation, any payment of principal, interest
or fees) to be made to each such
15
Lender, the percentage designated as such Lender's Pro Rata Share of such
Commitments, such Loans or such payments, as applicable, set forth on Schedule
1.1(a), as such percentage may change based upon amendments, assignments or
reductions made pursuant to this Agreement.
"Receivables Subsidiaries" shall mean, collectively, ChoicePoint Capital,
Inc., a Delaware corporation and ChoicePoint Financial, Inc., a Delaware
corporation.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time.
"Reimbursement Obligation" shall mean the obligation of Borrower to
reimburse the Issuing Lender pursuant to Section 2A.05 for amounts drawn under
Letters of Credit.
"Required Lenders" shall mean at any time prior to the termination of the
Syndicated Loan Commitments, Lenders holding more than 50% of the then aggregate
amount of the Syndicated Loan Commitments, or, following the termination of the
Syndicated Loan Commitments hereunder, Lenders holding more than 50% of the sum
of the aggregate outstanding Dollar Amount of Loans and L/C Obligations;
provided that the Commitment of, and the portion of the Loans and L/C
Obligations of, as applicable, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Requirement of Law" for any person shall mean the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Reuters Screen" shall mean, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuters Monitor Money
Rates Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"Revaluation Date" shall mean (a) with respect to any Alternative Currency
Loan, each of the following: (i) each date of a borrowing of such Alternative
Currency Loan, (ii) each date of a continuation of such Alternative Currency
Loan, and (iii) following the occurrence and during the continuance of an Event
of Default, such additional dates as the Administrative Agent shall determine or
the Required Lenders shall require; and (b) with respect to any Alternative
Currency Letter of Credit, each of the following: (i) each date of issuance of
such Alternative Currency Letter of Credit, (ii) each date of an amendment of
such Alternative Currency Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date of
any payment by the Issuing Lender of any drawing under any Alternative Currency
Letter of Credit, and (iv) following the occurrence and during the continuance
of an Event of Default, such additional dates as the Administrative Agent or the
Issuing Lender shall determine or the Required Lenders shall require.
16
"Solvent" shall mean, as to Borrower or any Guarantor at any time, that
(i) each of the fair value and the present fair saleable value of such Person's
assets (including any rights of subrogation or contribution to which such Person
is entitled, under any of the Credit Documents or otherwise) is greater than
such Person's debts and other liabilities (including contingent, unmatured and
unliquidated debts and liabilities) and the maximum estimated amount required to
pay such debts and liabilities as such debts and liabilities mature or otherwise
become payable; (ii) such Person is able and expects to be able to pay its debts
and other liabilities (including, without limitation, contingent, unmatured and
unliquidated debts and liabilities) as they mature; and (iii) such Person does
not have unreasonably small capital to carry on its business as conducted and as
proposed to be conducted.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of organization or formation, at
least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries; provided, that the
Receivables Subsidiaries shall not be deemed to be Subsidiaries of Borrower
hereunder.
"Swing Line Advance" shall mean a Borrowing pursuant to Section 2.07
consisting of a Swing Line Loan made by the Swing Line Lender to Borrower
bearing interest based on the Base Rate as provided in Section 3.02.
"Swing Line Borrowing" shall mean a Borrowing consisting or to consist of
a Swing Line Advance.
"Swing Line Commitment" shall mean the commitment of the Swing Line Lender
to make Swing Line Loans in an aggregate principal amount at any time
outstanding not to exceed the lesser of (a) $25,000,000 and (b) the total
Syndicated Loan Commitments.
"Swing Line Facility" shall mean the credit facility described in Section
2.07.
"Swing Line Lender" shall mean Wachovia in its capacity as Swing Line
Lender hereunder or any successor Lender extending to Borrower the Swing Line
Commitment hereunder.
"Swing Line Loans" shall mean, collectively, the loans made to Borrower by
the Swing Line Lender pursuant to Section 2.07.
"Swing Line Note" shall mean the promissory note evidencing the Swing Line
Loans substantially in the form of EXHIBIT B and duly completed in accordance
with the terms hereof.
"Syndicated Advance" shall mean a Borrowing pursuant to Section 2.02
consisting of the aggregate amount of Syndicated Loans made by the Syndicated
Lenders to Borrower at the same time, on the same interest rate basis and, if
made as a Eurodollar Advance, for the same Interest Period.
17
"Syndicated Borrowing" shall mean a Borrowing consisting or to consist of
a Syndicated Advance.
"Syndicated Facility" shall mean the credit facility made available by the
Syndicated Lenders to Borrower as described in Section 2.02(a).
"Syndicated Lenders" shall mean, collectively, the Lenders extending the
Syndicated Loan Commitments to Borrower pursuant to Section 2.02(a).
"Syndicated Loan Commitments" shall mean, at any time for any Syndicated
Lender, the amount of such commitment set forth on Schedule 1.1(a), as the same
may be increased or decreased from time to time as a result of any reduction
thereof pursuant to Section 2.04, any assignment thereof pursuant to Section
10.06, or any amendment thereof pursuant to Section 10.02. On the Closing Date,
the aggregate principal amount of all Syndicated Loan Commitments of the
Syndicated Lenders shall be $400,000,000.
"Syndicated Loans" shall mean, collectively, the loans made to Borrower by
the Syndicated Lenders pursuant to Section 2.02.
"Syndicated Notes" shall mean, collectively, the promissory notes
evidencing the Syndicated Loans in the form attached hereto as EXHIBIT A duly
completed in accordance with the terms hereof, either as originally executed or
as hereafter amended, modified or substituted.
"TARGET Day" shall mean any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such
payment system ceases to be operative, such other payment system (if any)
determined by the Administrative Agent to be a suitable replacement) is open for
the settlement of payments in Euro.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated page
and LIBOR, the display page so designated on the Dow ▇▇▇▇▇ Markets Screen (or
such other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the Consolidated Companies,
determined in accordance with GAAP.
18
"Treaty on European Union" shall mean the Treaty of Rome of March 25,
1957, as amended by the Single European Act of 1986 and the Maastricht Treaty
(signed February 7, 1992), as amended from time to time.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Eurodollar Advances, or Swing Line Advances.
"Uniform Customs" shall mean the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January 1994 International
Chamber of Commerce Publication No. 500.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise defined
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP, except that financial records of
Foreign Subsidiaries may be maintained in accordance with generally accepted
accounting principles in effect from time to time in the jurisdiction of
organization of such Foreign Subsidiary; provided, however, that compliance with
the financial covenants and calculations set forth in Section 6.08, Article VII
and elsewhere herein, and in the definitions used in such covenants and
calculations, shall be calculated, made and applied in accordance with GAAP and
such generally accepted accounting principles in such foreign jurisdictions, as
the case may be, as in effect on the date of this Agreement applied on a basis
consistent with the preparation of the financial statements referred to in
Section 5.14 unless and until Borrower and the Required Lenders enter into an
amendment with respect thereto in accordance with Section 10.02.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified. Any of the terms defined in Section
1.01 may, unless the context otherwise requires, be used in the singular or the
plural depending on the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
ARTICLE II.
SYNDICATED LOANS AND SWING LINE LOANS
SECTION 2.01. DESCRIPTION OF REVOLVING CREDIT FACILITIES; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, (i)
the Syndicated Lenders hereby establish in favor of Borrower a revolving credit
facility pursuant to which such Syndicated Lenders agree to make Syndicated
Loans to Borrower in accordance with Section
19
2.02, (ii) the Issuing Lender hereby establishes in favor of Borrower a letter
of credit facility pursuant to which the Issuing Lender agrees to issue Letters
of Credit on behalf of Borrower in accordance with Article IIA hereof, and (iii)
the Swing Line Lender hereby establishes in favor of Borrower a swing line
credit facility pursuant to which the Swing Line Lender agrees to make Swing
Line Loans to Borrower in accordance with Section 2.07; provided, however, that
(i) in no event may the aggregate principal Dollar Amount of all outstanding
Loans and L/C Obligations exceed at any time the total Syndicated Loan
Commitments from time to time in effect, (ii) in no event may the aggregate
principal Dollar Amount of all outstanding Alternative Currency Loans and L/C
Obligations with respect to Alternative Currency Letters of Credit exceed at any
time the Alternative Currency Commitment and (iii) in no event may the aggregate
outstanding principal Dollar Amount of the Syndicated Loans of each Syndicated
Lender plus such Syndicated Lender's Pro Rata Share of the outstanding principal
Dollar Amount of Swing Line Loans and outstanding L/C Obligations exceed such
Syndicated Lender's Syndicated Loan Commitment.
(b) The proceeds of the Syndicated Loans, the Letters of Credit and the
Swing Line Loans shall be used to refinance existing indebtedness of Borrower
under the Existing Credit Agreement, as working capital and for other general
corporate purposes of Borrower and its Consolidated Subsidiaries, including
without limitation, capital expenditures in the ordinary course of business
otherwise permitted hereunder, acquisitions of the assets of, or the Capital
Stock of, any other Person permitted hereunder and the payment of reasonable
fees and expenses related to the Facilities.
(c) At no time shall the number of outstanding Borrowings comprised of
Eurodollar Advances exceed ten (10).
SECTION 2.02. SYNDICATED LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in Section 2.01), each Syndicated Lender
severally agrees to make to Borrower, from time to time on and after the Closing
Date, but prior to the Maturity Date, Syndicated Loans in a Permitted Currency
in an aggregate principal Dollar Amount outstanding at any time not to exceed an
amount equal to such Syndicated Lender's Syndicated Loan Commitment less such
Syndicated Lender's Pro Rata Share of the outstanding principal Dollar Amount of
Swing Line Loans and outstanding L/C Obligations. Borrower shall be entitled to
repay and reborrow Syndicated Loans in accordance with the provisions, and
subject to the limitations, set forth herein (including the limitation set forth
in Section 2.01).
(b) Each Syndicated Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances or Eurodollar Advances; provided that all
Alternative Currency Loans shall be made as Eurodollar Advances only. The
aggregate principal amount of each Borrowing of Syndicated Loans shall be not
less than $5,000,000 or a greater integral multiple of $500,000 (or, in each
case, the Alternative Currency Amount thereof), provided that each Borrowing of
Syndicated Loans comprised of Base Rate Advances shall be not less than
$1,000,000 or a greater integral multiple of $100,000.
20
SECTION 2.03. SYNDICATED NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and interest on, the
Syndicated Loans to each Syndicated Lender shall be evidenced by the records of
the Administrative Agent and such Lender and by the Syndicated Note payable to
such Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Syndicated Loan
Commitments shall be due and payable in full on the Maturity Date.
SECTION 2.04. VOLUNTARY REDUCTION OF SYNDICATED LOAN COMMITMENTS. Upon at
least three (3) Business Days' prior written notice to the Administrative Agent,
Borrower shall have the right, without premium or penalty, to terminate the
unutilized Syndicated Loan Commitments, in part or in whole, provided that (i)
any such termination shall apply to proportionately and permanently reduce the
Syndicated Loan Commitments of each of the Syndicated Lenders, and (ii) any
partial termination pursuant to this Section 2.04 shall be in an amount of at
least $5,000,000 and integral multiples of $1,000,000. Any portion of the
Syndicated Loan Commitments terminated pursuant to this Section 2.04 may not be
reinstated.
SECTION 2.05. INCREASE OF SYNDICATED LOAN COMMITMENTS.
(a) At any time within four (4) years of the Closing Date and so long as
no Default or Event of Default has occurred and is continuing, the Borrower may,
by written notice to the Syndicated Lenders, request increases in the Syndicated
Loan Commitments (each, a "Requested Commitment Increase") up to an amount not
to exceed $500,000,000. Each Requested Commitment Increase shall be in a minimum
amount of $25,000,000. No Syndicated Lender (or any successor thereto) shall
have any obligation to increase its Syndicated Loan Commitment or its other
obligations under this Agreement and the other Credit Documents, and any
decision by a Syndicated Lender to increase its Syndicated Loan Commitment shall
be made in its sole discretion independently from any other Syndicated Lender.
Within fifteen (15) Business Days from each Syndicated Lender's receipt of such
request from Borrower, each Syndicated Lender shall notify the Administrative
Agent in writing of whether or not it will agree to increase its Syndicated Loan
Commitment and by what amount it will agree to increase its Syndicated Loan
Commitment, up to its Pro Rata Share of the Requested Commitment Increase.
Decisions to increase a Syndicated Loan Commitment must be affirmatively
communicated in writing and shall not be presumed based upon a failure to
respond to Borrower's request.
(b) In the event that the aggregate amount to which the Syndicated
Lenders are willing to increase their Syndicated Loan Commitments is less than
the Requested Commitment Increase based on the written notices delivered by the
Syndicated Lenders to the Administrative Agent pursuant to clause (a) above, the
Administrative Agent shall first offer to the Syndicated Lenders who have agreed
to increase their Syndicated Loan Commitments the opportunity to further
increase their Syndicated Loan Commitments up to an amount equal to the
Requested Commitment Increase. Such Syndicated Lenders shall promptly respond in
writing to the Administrative Agent (but, in any event, within five (5) Business
Days from each Syndicated
21
Lender's receipt of such notice) of whether or not it will agree to further
increase its Syndicated Loan Commitment and by what amount it will agree to
further increase its Syndicated Loan Commitment. Within five (5) Business Days
after receipt of all responses from such Syndicated Lenders, the Administrative
Agent shall inform Borrower and all Syndicated Lenders in writing of the amount
by which each Syndicated Lender will increase its Syndicated Loan Commitment.
(c) In the event that the aggregate amount to which the Syndicated
Lenders are willing to increase their Syndicated Loan Commitments is less than
the Requested Commitment Increase based on the notice from the Administrative
Agent to Borrower and all Syndicated Lenders pursuant to clause (b) above,
Borrower shall have the right, within sixty days (60) after receipt of such
notice from the Administrative Agent, to obtain commitments from new banks or
financial institutions in an aggregate amount such that the existing Syndicated
Loan Commitments, plus the aggregate principal amount by which the Syndicated
Lenders are willing to increase their Syndicated Loan Commitments, plus the
aggregate principal amount of the new commitments by the new banks or financial
institutions does not exceed the Requested Commitment Increase; provided,
however, that (i) the new banks or financial institutions must be acceptable to
the Administrative Agent in its sole discretion, which acceptance will not be
unreasonably withheld or delayed, and (ii) the new banks or financial
institutions must become parties to this Agreement pursuant to a joinder
agreement in form and substance satisfactory to the Administrative Agent and the
Required Lenders, pursuant to which (x) they shall be granted all of the rights
that existing Lenders have under this Agreement and the other Credit Documents
and (y) they shall assume the same liabilities and obligations that the existing
Lenders have under this Agreement.
(d) The outstanding Syndicated Loans will be reallocated on the
effective date of such increase among the Syndicated Lenders in accordance with
their revised Syndicated Loan Commitments and Pro Rata Shares (and the
Syndicated Lenders agree to make all payments and adjustments necessary to
effect the reallocation and Borrower shall pay any and all costs required
pursuant to Section 3.11 in connection with such reallocation as if such
reallocation were a repayment; provided, that the Administrative Agent and the
Borrower shall cooperate in scheduling the effective date of such increase so as
to eliminate or minimize the amount of any such funding losses to the extent
reasonably practicable).
SECTION 2.06. SYNDICATED LOAN FUNDING NOTICES.
(a) Whenever Borrower desires to obtain a Syndicated Loan with respect
to the Syndicated Loan Commitments (other than one resulting from a conversion
or continuation pursuant to Section 2.06(b)), it shall give the Administrative
Agent prior written notice of such Borrowing substantially in the form attached
hereto as EXHIBIT I (or telephonic notice promptly confirmed in writing) (a
"Notice of Borrowing"), such Notice of Borrowing to be given prior to 11:00 a.m.
(Charlotte, North Carolina time) at its Payment Office (x) four (4) Eurodollar
Business Days prior to the requested date of such Borrower in the case of
Eurodollar Advances denominated in an Alternative Currency, (y) three (3)
Eurodollar Business Days prior to the requested date of such Borrowing in the
case of Eurodollar Advances denominated in Dollars, and (z) on the date of such
Borrowing (which shall be a Business Day) in the case of a Borrowing consisting
of Base Rate Advances. Notices received after 11:00 a.m. shall be deemed
22
received on the next Business Day. Each Notice of Borrowing shall be irrevocable
and shall specify the aggregate principal amount of the Borrowing, the date of
Borrowing (which shall be a Business Day), and whether the Borrowing is to
consist of Base Rate Advances or Eurodollar Advances and (in the case of
Eurodollar Advances) the Permitted Currency in which such Borrowing is to be
denominated and the Interest Period to be applicable thereto.
(b) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Syndicated Loan Commitments, consisting of Base
Rate Advances into one or more Borrowings consisting of Eurodollar Advances, or
to continue outstanding a Borrowing consisting of Eurodollar Advances for a new
Interest Period, it shall give the Administrative Agent at least four (4)
Eurodollar Business Days' (with respect to an Alternative Currency Loan) and
three (3) Eurodollar Business Days' (with respect to a Loan denominated in
Dollars) prior written notice substantially in the form attached hereto as
EXHIBIT J (or telephonic notice promptly confirmed in writing) (a "Notice of
Conversion/Continuation"). Such notice shall be given prior to 11:00 a.m.
(Charlotte, North Carolina time) on the date specified at the Payment Office of
the Administrative Agent. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify the aggregate principal amount of the Advances to
be converted or continued, the date of such conversion or continuation, whether
the Advances are being converted into or continued as Eurodollar Advances, the
Permitted Currency in which such Advances are denominated and the Interest
Period applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Borrower shall have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances in
Dollars. So long as any Default or Event of Default shall have occurred and be
continuing, no Borrowing may be converted into or continued as (upon expiration
of the current Interest Period) Eurodollar Advances unless the Administrative
Agent and each of the Syndicated Lenders shall have otherwise consented in
writing. No conversion of any Borrowing of Eurodollar Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Administrative Agent may act without
liability upon the basis of telephonic notice believed by the Administrative
Agent in good faith to be from Borrower prior to receipt of written
confirmation. In each such case, Borrower hereby waives the right to dispute the
Administrative Agent's records of the terms of such telephonic notice, absent
manifest error.
(d) The Administrative Agent shall promptly give each Syndicated Lender
notice by telephone (confirmed in writing) or by telecopy or facsimile
transmission of the matters covered by the notices given to the Administrative
Agent pursuant to this Section 2.06 with respect to the Syndicated Loan
Commitments.
SECTION 2.07. SWING LINE LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in Section 2.01), the Swing Line Lender
agrees to make to Borrower, from time to time prior to the Maturity Date, Swing
Line Loans in Dollars for periods of up to ninety
23
(90) days in an aggregate principal amount outstanding at any time not to exceed
the Swing Line Commitment then in effect. Borrower shall be entitled to repay
and reborrow Swing Line Loans in accordance with the provisions, and subject to
the limitations, set forth herein (including the limitation set forth in Section
2.01). The aggregate principal amount of each Swing Line Loan shall be not less
than $100,000 or a greater integral multiple of $100,000.
(b) Each Swing Line Loan shall be made as a Swing Line Advance.
(c) Whenever Borrower desires to make a Swing Line Borrowing, it shall
give the Swing Line Lender (with a copy to the Administrative Agent, unless the
Administrative Agent is also the Swing Line Lender) prior written notice in the
form of a Notice of Borrowing (or telephonic notice promptly confirmed in
writing) of such Swing Line Borrowing prior to 11:00 a.m. (Charlotte, North
Carolina time) on the date of such Swing Line Borrowing, specifying the
aggregate principal amount of the Swing Line Borrowing and the date of such
Swing Line Borrowing (which shall be a Business Day).
(d) Borrower's obligations to pay the principal of, and interest on, the
Swing Line Loans shall be evidenced by the records of the Administrative Agent
and the Swing Line Lender and by the Swing Line Note payable to the Swing Line
Lender (or the assignor of such Swing Line Lender) completed in conformity with
this Agreement.
(e) The outstanding principal amount under each Swing Line Loan shall be
due and payable in full on the Maturity Date.
(f) At any time on the request of the Swing Line Lender, each Syndicated
Lender other than the Swing Line Lender shall purchase a participating interest
in all outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(based upon on its respective Syndicated Loan Commitment) of such Swing Line
Loans, and the Swing Line Lender shall furnish each Syndicated Lender with a
certificate evidencing such participating interest. Such purchase shall be made
on the third Business Day after such request is made; provided, however, that
unless an Event of Default has occurred and is continuing on the date such
request is made, the purchase of a participating interest in any Swing Line Loan
outstanding as a Swing Line Advance shall not be required to be made until the
expiration of the current interest period in effect for such Swing Line Loan. On
the date of such required purchase, each Syndicated Lender will immediately
transfer to the Swing Line Lender, in immediately available funds, the amount of
its participation. Whenever, at any time after the Swing Line Lender has
received from any such Syndicated Lender the funds for its participating
interest in a Swing Line Loan, the Administrative Agent receives any payment on
account thereof, the Administrative Agent will distribute to such Syndicated
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Syndicated Lender's participating interest was outstanding and funded);
provided, however, that if such payment received by the Administrative Agent is
required to be returned, such Syndicated Lender will return to the
Administrative Agent any portion thereof previously distributed by the
Administrative Agent to it. Each Syndicated Lender's obligation to purchase such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or
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other right that such Syndicated Lender or any other Person may have against the
Swing Line Lender requesting such purchase or any other Person for any reason
whatsoever, (ii) the occurrence or continuation of a Default or an Event of
Default or the termination of any of the Commitments, (iii) any adverse change
in the condition (financial or otherwise) of Borrower, any of its Consolidated
Subsidiaries, or any other Person, (iv) any breach of this Agreement by
Borrower, any other Borrower, or any other Lender, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided, however, that no such obligation shall exist (A) to the
extent that the aggregate Swing Line Loans were advanced in excess of the Swing
Line Commitment then in effect, or in excess of the limitation set forth in
Section 2.01, or (B) with respect to any Swing Line Loan where the Swing Line
Lender actually advanced to Borrower net proceeds from the Swing Line Loan (and
therefore was not refunding a previous Swing Line Loan) at a time when (x) the
Swing Line Lender had actual knowledge that an Event of Default had occurred and
then existed, and (y) the Required Lenders had not agreed to waive such Event of
Default for purposes of funding such Swing Line Loan.
ARTICLE IIA.
LETTERS OF CREDIT
SECTION 2A.01. L/C COMMITMENT.
(a) Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 2A.04,
agrees to issue standby letters of credit ("Letters of Credit") for the account
of Borrower on any Business Day from the Closing Date through but not including
the Maturity Date in such form as may be approved from time to time by the
Issuing Lender; provided, that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (a) the
aggregate outstanding principal Dollar Amount of the L/C Obligations would
exceed the L/C Commitment, (b) the aggregate outstanding principal Dollar Amount
of Alternative Currency Loans and L/C Obligations with respect to Alternative
Currency Letters of Credit would exceed the Alternative Currency Commitment, or
(c) the aggregate outstanding principal Dollar Amount of Loans and L/C
Obligations would exceed the total Syndicated Loan Commitments. Each Letter of
Credit shall (i) be denominated in a Permitted Currency in a minimum amount of
$100,000 (or the Alternative Currency Amount thereof, as applicable), (ii) be a
standby letter of credit issued to support obligations of Borrower or any of its
Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date satisfactory to the Issuing Lender, which date
shall be no later than the earlier of (i) one year after its date of issuance
and (ii) the fifth (5th) Business Day prior to the Maturity Date and (iv) be
subject to the Uniform Customs and/or ISP 98, as set forth in the Application or
as determined by the Issuing Lender and, to the extent not inconsistent
therewith, the laws of the State of Georgia. The Issuing Lender shall not at any
time be obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Requirement of Law. References herein to "issue" and
derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires. Each Existing Letter of Credit shall be deemed to be
a Letter of Credit issued and outstanding under this Agreement on and after the
Closing Date.
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SECTION 2A.02. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(a) Borrower may from time to time request that the Issuing Lender issue
a Letter of Credit by delivering to the Issuing Lender at the Administrative
Agent's Lending Office an Application therefor, completed to the satisfaction of
the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request (which information shall include
the Permitted Currency in which the Letter of Credit shall be denominated). Upon
receipt of any Application, the Issuing Lender shall process such Application
and the certificates, documents and other papers and information delivered to it
in connection therewith in accordance with its customary procedures and shall,
after approving the same and receiving confirmation from the Administrative
Agent that sufficient availability exists under the Syndicated Facility for the
issuance of such Letter of Credit, subject to Section 2A.01 and Article IV
hereof, promptly issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit earlier than
four (4) Business Days after its receipt of the Application therefor and all
such other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and Borrower. The
Issuing Lender shall promptly furnish to Borrower a copy of such Letter of
Credit and promptly notify each Lender of the issuance and upon request by any
Lender, furnish to such Lender a copy of such Letter of Credit and the amount of
such Lender's participation therein.
SECTION 2A.03. COMMISSIONS AND OTHER CHARGES.
(a) Borrower shall pay to the Administrative Agent, for the account of
the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in an amount equal to the face amount of such
Letter of Credit multiplied by the Applicable Margin with respect to Eurodollar
Advances (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Maturity Date. The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received pursuant to this Section 2A.03 in accordance with their
respective Commitments.
(b) In addition to the foregoing commission, Borrower shall pay the
Administrative Agent, for the account of the Issuing Lender, a fronting fee,
with respect to each Letter of Credit in an amount equal to the face amount of
such Letter of Credit multiplied by 0.125% per annum. Such issuance fee shall be
payable quarterly in arrears on the last Business Day of each calendar quarter
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Maturity Date and thereafter on demand of the Administrative
Agent.
(c) In addition to the foregoing fees and commissions, Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit.
(d) The commissions, fees, charges, costs and expenses payable pursuant
to this Section 2A.03 shall be payable in the Permitted Currency in which the
applicable Letter of Credit is
26
denominated.
SECTION 2A.04. L/C PARTICIPATIONS
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk,
an undivided interest equal to such L/C Participant's Pro Rata Share of the
Issuing Lender's obligations and rights under and in respect of each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by Borrower through a Syndicated Loan
or otherwise in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender in the applicable Permitted Currency
upon demand at the Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Pro Rata Share of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 2A.04(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender in the applicable Permitted Currency the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
in the applicable Permitted Currency on demand, in addition to such amount, the
product of (i) such amount, times (ii) the daily average Federal Funds Rate as
determined by the Administrative Agent during the period from and including the
date such payment is due to the date on which such payment is immediately
available to the Issuing Lender, times (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. A certificate of the Issuing Lender with respect to any amounts
owing under this Section 2A.04 shall be conclusive in the absence of manifest
error. With respect to payment to the Issuing Lender of the unreimbursed amounts
described in this Section 2A.04, if the L/C Participants receive notice that any
such payment is due (A) prior to 1:00 p.m. (Charlotte, North Carolina time) on
any Business Day, such payment shall be due that Business Day, and (B) after
1:00 p.m. (Charlotte, North Carolina time) on any Business Day, such payment
shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its Pro
Rata Share of such payment in accordance with this Section 2A.04, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from Borrower or otherwise), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its Pro Rata Share
thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
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SECTION 2A.05. REIMBURSEMENT OBLIGATION OF BORROWER.
(a) Reimbursement by Borrower. In the event of any drawing under any
Letter of Credit, Borrower agrees to reimburse (either with the proceeds of a
Syndicated Loan as provided for in this Section 2A.05 or with funds from other
sources), in same day funds in the applicable Permitted Currency in which such
Letter of Credit was denominated, the Issuing Lender on each date on which the
Issuing Lender notifies Borrower of the date and amount of a draft paid under
any Letter of Credit for the amount of (i) such draft so paid and (ii) any
amounts referred to in Section 2A.03(c) or Section 3.15(e) incurred by the
Issuing Lender in connection with such payment.
(b) Reimbursement from Syndicated Borrowing. Unless Borrower shall
immediately notify the Issuing Lender that Borrower intends to reimburse the
Issuing Lender for such drawing from other sources or funds, Borrower shall be
deemed to have timely given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make a Base Rate Advance on such date in the Dollar
Amount of (a) such draft so paid and (b) any amounts referred to in Section
2A.03(c) incurred by the Issuing Lender in connection with such payment, and the
Lenders shall make a Base Rate Advance in such Dollar Amount, the proceeds of
which shall be applied to reimburse the Issuing Lender for the amount of the
related drawing and costs and expenses. Each Lender acknowledges and agrees that
its obligation to fund a Syndicated Loan in accordance with this Section 2A.05
to reimburse the Issuing Lender for any draft paid under a Letter of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Section 2.06(a) or Article IV. If Borrower has elected to pay the
amount of such drawing with funds from other sources and shall fail to reimburse
the Issuing Lender as provided above, the unreimbursed amount of such drawing
shall bear interest at the rate which would be payable on any outstanding Base
Rate Advance which were then overdue from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full.
SECTION 2A.06. OBLIGATIONS ABSOLUTE
(a) Borrower's obligations under this Article IIA (including without
limitation the Reimbursement Obligation) shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which Borrower may have or have had against the Issuing
Lender or any beneficiary of a Letter of Credit or any other Person. Borrower
also agrees that the Issuing Lender and the L/C Participants shall not be
responsible for, and Borrower's Reimbursement Obligation under Section 2A.05
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
Borrower and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever of Borrower
against any beneficiary of such Letter of Credit or any such transferee. The
Issuing Lender shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or willful misconduct.
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct, shall
28
be binding on Borrower and shall not result in any liability of the Issuing
Lender or any L/C Participant to Borrower. The responsibility of the Issuing
Lender to Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit.
SECTION 2A.07. EFFECT OF LETTER OF CREDIT APPLICATION.
(a) To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Article IIA, the
provisions of this Article IIA shall apply.
ARTICLE III.
GENERAL LOAN TERMS
SECTION 3.01. DISBURSEMENT OF FUNDS.
(a) No later than 1:00 p.m. (Charlotte, North Carolina time) on the date
of each Syndicated Loan denominated in Dollars pursuant to the Syndicated Loan
Commitments (other than one resulting from a conversion or continuation pursuant
to Section 2.06(b)), each Lender will make available its Pro Rata Share of such
Syndicated Loan in Dollars in immediately available funds at the Payment Office
of the Administrative Agent. The Administrative Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Syndicated Lenders to the Administrative Agent by crediting or wiring such
amounts to an account specified by Borrower in the most recent notice
substantially in the form of EXHIBIT K (a "Notice of Account Designation"),
delivered by Borrower to the Administrative Agent or as may be otherwise agreed
upon by Borrower and the Administrative Agent, by the close of business on such
Business Day. In the event that the Syndicated Lenders do not make such amounts
available to the Administrative Agent by the time prescribed above, but such
amount is received later that day, such amount may be credited to Borrower in
the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(b) No later than 11:00 a.m. (the time of the Administrative Agent's
Correspondent) on the date of each Alternative Currency Loan pursuant to the
Syndicated Loan Commitments (other than one resulting from a conversion or
continuation pursuant to Section 2.06(b)), each Lender will make available its
Pro Rata Share of such Alternative Currency Loan in the requested Alternative
Currency in immediately available funds at the office of the Administrative
Agent's Correspondent. The Administrative Agent will make available to Borrower
the aggregate of the amounts (if any) so made available by the Syndicated
Lenders to the Administrative Agent by crediting or wiring such amounts to the
account specified by Borrower in the most recent Notice of Account Designation,
by the close of business on such Business Day. In the event that the Syndicated
Lenders do not make such amounts available to the Administrative Agent by the
time prescribed above, but such amount is received later that day, such amount
may be credited to Borrower in the manner described in the preceding sentence on
the next Business Day (with interest on such amount to begin accruing hereunder
on such next Business Day).
29
(c) No later than 2:00 p.m. (Charlotte, North Carolina time) on the date
of each Swing Line Loan, the Swing Line Lender will make available the principal
amount of the Swing Line Loan available to Borrower in Dollars by crediting or
wiring such amounts to the account specified by Borrower in the most recent
Notice of Account Designation.
(d) Unless the Administrative Agent shall have been notified by any
Syndicated Lender prior to the date of a Syndicated Loan Borrowing that such
Lender does not intend to make available to the Administrative Agent such
Lender's portion of such Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date and the Administrative Agent may make
available to Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify Borrower, and Borrower shall immediately pay such
corresponding amount to the Administrative Agent together with interest at the
rate specified for such Borrowing. Nothing in this subsection shall be deemed to
relieve any Syndicated Lender from its obligation to fund its Syndicated Loan
Commitment hereunder or to prejudice any rights which Borrower may have against
any Syndicated Lender as a result of any default by such Lender hereunder.
(e) All Syndicated Loans under the Syndicated Loan Commitments shall be
loaned by the Lenders on the basis of their Pro Rata Share of the Syndicated
Loan Commitments. All Swing Line Loans shall be loaned by the Swing Line Lender
in accordance with Section 2.07. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fund its Commitments hereunder.
SECTION 3.02. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of Syndicated Loans from the respective dates such principal amounts
were advanced to maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time;
(ii) For Eurodollar Advances--The relevant LIBOR plus the Applicable
Margin plus the Mandatory Cost; or
(b) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Swing Line Loans made to Borrower from the respective dates such
principal amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at the Base Rate in effect from time to time;
30
(c) Overdue principal and, to the extent not prohibited by applicable law,
overdue interest, in respect of the Loans, and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to
all Loans outstanding as Eurodollar Advances, at the rate otherwise applicable
for the then-current Interest Period plus an additional two percent (2.0%) per
annum; thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with respect to
all other Loans outstanding as Base Rate Advances and Swing Line Advances, and
all other Obligations hereunder (other than Loans), at a rate equal to the
applicable Base Rate plus an additional two percent (2.0%) per annum;
(d) Interest on each Loan shall accrue from and including the date of such
Loan to but excluding the date of any repayment thereof; provided, that if a
Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all Base Rate Advances and Swing Line Advances shall be
payable quarterly in arrears on the last calendar day of each calendar quarter
in each year. Interest on all outstanding Eurodollar Advances shall be payable
on the last day of each Interest Period applicable thereto, and, in the case of
Interest Periods in excess of three months (in the case of Eurodollar Advances),
on each day which occurs every three (3) months, as the case may be, after the
initial date of such Interest Period. Interest on all Loans shall be payable on
any conversion of any Advances comprising such Loans into Advances of another
Type, prepayment (on the amount prepaid), at maturity (whether by acceleration,
notice of prepayment or otherwise) and, after maturity, on demand; and
(e) The Administrative Agent, upon determining LIBOR for any Interest
Period, shall promptly notify by telephone (confirmed in writing) or in writing
Borrower and the other Syndicated Lenders. Any such determination shall, absent
manifest error, be final, conclusive and binding for all purposes.
SECTION 3.03. INTEREST PERIODS.
(a) In connection with the making or continuation of, or conversion into,
each Borrowing of Eurodollar Advances, Borrower shall select an Interest Period
to be applicable to such Eurodollar Advances, which Interest Period shall be
either a one (1), two (2), three (3) or six (6) month period.
(b) Notwithstanding paragraphs (a):
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing consisting of Base Rate Advances) and each Interest
Period occurring thereafter in respect of a continuation of such Borrowing shall
commence on the day on which the immediately preceding Interest Period expires;
31
(ii) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day, provided that if any Interest Period in respect of Eurodollar
Advances would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall, subject to part (iv)
below, expire on the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend
beyond the Maturity Date.
SECTION 3.04. FEES.
(a) Borrower shall pay to the Administrative Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender, a facility fee
(the "Facility Fee") for the period commencing on the Closing Date to and
including the Maturity Date, computed at a rate equal to the Applicable
Commitment Percentage per annum multiplied by the aggregate principal amount of
the Syndicated Loan Commitments of the Lenders, such fee being payable quarterly
in arrears on the date which is five (5) Business Days following the last day of
each fiscal quarter of Borrower and on the Maturity Date.
(b) Borrower shall pay to the Administrative Agent and the Lenders such
arrangement fees, up front fees and other fees for their respective services in
the respective amounts as previously agreed in writing by Borrower with the
Administrative Agent.
SECTION 3.05. PREPAYMENTS OF BORROWINGS.
(a) Voluntary Prepayments.
(i) Borrower may, at its option, prepay Borrowings at any time in
whole, or from time to time in part, in amounts aggregating $1,000,000 or any
greater integral multiple of $500,000 (or, in each case, the Alternative
Currency Amount thereof) with respect to Eurodollar Advances, $1,000,000 or any
greater integral multiple of $100,000 with respect to Base Rate Advances, and
$100,000 or any greater integral multiple of $100,000 with respect to Swing Line
Advances, by paying the principal amount to be prepaid (in the Permitted
Currency in which such Borrowings were initially funded) together with interest
accrued and unpaid thereon to the date of prepayment, together with, in the case
of Eurodollar Advances, all compensation payments pursuant to Section 3.11 if
such prepayment is made on a date other than the last day of the Interest Period
applicable thereto.
(ii) Borrower shall give written notice substantially in the form
attached hereto as EXHIBIT L (a "Notice of Prepayment") (or telephonic notice
confirmed in writing) to
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the Administrative Agent of any intended prepayment of the Loans not less than
(A) four (4) Business Days prior to any prepayment of Alternative Currency
Loans, (B) three (3) Business Days prior to any prepayment of Eurodollar
Advances denominated in Dollars and (C) one (1) Business Day prior to any
prepayment of Base Rate Advances and Swing Line Advances. Such notice, once
given, shall be irrevocable and shall specify (w) the date of repayment, (x) the
amount of repayment, (y) whether the repayment is of Syndicated Loans, Swing
Line Loans, or a combination thereof (including the amount allocable to each)
and (z) whether the repayment is of Eurodollar Advances denominated in an
Alternative Currency, Eurodollar Advances denominated in Dollars, Base Rate
Advances, Swing Line Loans or a combination thereof (including the amount
allocable to each). Upon receipt of such notice of prepayment, the
Administrative Agent shall promptly notify each Lender of the contents of such
notice and of such Lender's share of such prepayment.
(iii) In the absence of a designation by Borrower, the
Administrative Agent shall, subject to the foregoing, make such designation in
its sole discretion. All voluntary prepayments shall be applied to the payment
of interest on the Borrowings prepaid before application to principal.
(b) Mandatory Prepayments.
(i) If at any time (as determined by the Administrative Agent under
clause (ii) below), based upon the Dollar Amount of all outstanding Loans and
L/C Obligations, (A) solely as a result of currency fluctuation, (I) the
outstanding principal amount of all Syndicated Loans exceeds one hundred and
five percent (105%) of the Syndicated Loan Commitments less the sum of all
outstanding Swing Line Loans and L/C Obligations, or (II) the outstanding
principal amount of all Alternative Currency Loans and L/C Obligations with
respect to Alternative Currency Letters of Credit exceeds one hundred and five
percent (105%) of the Alternative Currency Commitment, and (B) for any other
reason, (I) the outstanding principal amount of all Syndicated Loans plus Swing
Line Loans plus L/C Obligations exceeds the Syndicated Loan Commitments, (II)
the outstanding principal amount of all Alternative Currency Loans and L/C
Obligations with respect to Alternative Currency Letters of Credit exceeds the
Alternative Currency Commitment, (III) the outstanding principal amount of all
Swing Line Loans exceeds the Swing Line Commitment, or (IV) the outstanding
amount of all L/C Obligations exceeds the L/C Commitment, then, in each such
case, Borrower shall immediately repay Loans, in the currency in which such
Loans were initially funded, in an amount necessary to eliminate such excess.
(ii) Borrowers' compliance with this Section 3.05(b) shall be tested
from time to time by the Administrative Agent at its sole discretion, but in any
event shall be tested on (A) the date on which a Borrower requests the Lenders
to make an Advance or the Issuing Lender to issue a Letter of Credit. Each such
repayment pursuant to this Section 3.05(b) shall be accompanied by any amount
required to be paid pursuant to Section 3.11.
SECTION 3.06. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all payments under
this Agreement and the other Credit Documents shall be made without defense,
set-off or counterclaim to the
33
Administrative Agent, (i) not later than 12:00 Noon (Charlotte, North Carolina
time) on the date when due with respect to any Loan or Letter of Credit,
denominated in Dollars (including any fee, commission or other amount with
respect thereto) or 11:00 a.m. (the time of the Administrative Agent's
Correspondent) on the date when due with respect to any Alternative Currency
Loan or Alternative Letter of Credit (including any fee, commission or other
amount with respect thereto) and (ii) shall be made in Dollars or such
Alternative Currency as applicable, in immediately available funds at its
Payment Office.
(b) (i) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the Notes
or other Credit Documents, or any payments of principal, interest, fees or other
amounts payable hereunder or thereunder (but excluding, except as provided in
paragraph (iii) hereof, any Taxes imposed on the overall net income of the
Lenders pursuant to the laws of the jurisdiction in which the principal
executive office or appropriate Lending Office of such Lender is located). If
any Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every net
payment of all amounts due hereunder and under the Notes and other Credit
Documents, after withholding or deduction for or on account of any such Taxes
(including additional sums payable under this Section 3.06), will not be less
than the full amount provided for herein had no such deduction or withholding
been required, (B) to make such withholding or deduction and (C) to pay the full
amount deducted to the relevant authority in accordance with applicable law.
Borrower will furnish to the Administrative Agent and each Lender, within 30
days after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by Borrower. Borrower
will indemnify and hold harmless the Administrative Agent and each Lender and
reimburse the Administrative Agent and each Lender upon written request for the
amount of any Taxes so levied or imposed and paid by the Administrative Agent or
Lender and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were correctly or
illegally asserted. A certificate as to the amount of such payment by such
Lender or the Administrative Agent, absent manifest error, shall be final,
conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Administrative Agent, on the Closing Date and otherwise prior to the time it
becomes a Lender hereunder, two copies of either U.S. Internal Revenue Service
Form W-8ECI or U.S. Internal Revenue Service Form W-8BEN or any successor forms
thereto (wherein such Lender claims entitlement to complete exemption from or
reduced rate of U.S. Federal withholding tax on interest paid by Borrower
hereunder) and to provide to Borrower and the Administrative Agent a new Form
W-8ECI or Form W-8BEN or any successor forms thereto if any previously delivered
form is found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form.
(iii) Borrower shall also reimburse the Administrative Agent and
each Lender, upon written request, for any Taxes imposed (including, without
limitation, Taxes imposed on the overall net income of the Administrative Agent
or Lender or its applicable Lending Office pursuant to the laws of the
jurisdiction in which the principal executive office or the applicable Lending
Office of the Administrative Agent or Lender is located) as the Administrative
Agent or Lender
34
shall determine are payable by the Administrative Agent or Lender in respect of
amounts paid by or on behalf of Borrower to or on behalf of the Administrative
Agent or Lender pursuant to paragraph (i) hereof.
(c) Subject to Section 3.03(ii), whenever any payment to be made hereunder
or under any Note shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at
the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed), except that
interest on Base Rate Advances and Alternative Currency Loans denominated in
Pounds Sterling shall be computed on the basis of a year of 365 days for the
actual number of days. Interest on Base Rate Advances shall be calculated based
on the Base Rate from and including the date of such Loan to but excluding the
date of the repayment or conversion thereof. Interest on Swing Line Advances
shall be calculated based on the Base Rate from and including the date of such
Loan to but excluding the date of the repayment or conversion thereof. Interest
on Eurodollar Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
(e) Payment by Borrower to the Administrative Agent in accordance with the
terms of this Agreement shall, as to Borrower, constitute payment to the Lenders
under this Agreement.
SECTION 3.07. INTEREST RATE NOT ASCERTAINABLE, ETC.
In the event that the Administrative Agent or any Lender shall have
determined (which determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties) that (a) on any
date for determining LIBOR for any Interest Period, by reason of any changes
arising after the date of this Agreement affecting the London interbank market,
or the Administrative Agent's or such Lender's position in such market, adequate
and fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of LIBOR, (b) a fundamental change has
occurred in the foreign exchange or interbank markets with respect to any
Alternative Currency (including, without limitation, changes in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls) that increases the costs of the Administrative Agent
or any Lender to make Loans in an Alternative Currency or (c) it has become
otherwise materially impractical for the Administrative Agent or any Lender to
make Loans in an Alternative Currency, then, and in any such event, the
Administrative Agent shall forthwith give notice (by telephone confirmed in
writing) to Borrower and to the Lenders, of such determination and a summary of
the basis for such determination. Until the Administrative Agent notifies
Borrower that the circumstances giving rise to the suspension described herein
no longer exist, the obligations of the Lenders to make Alternative Currency
Loans in such Alternative Currency or make or permit portions of the Loans to
remain outstanding past the last day of the then current Interest Periods as
Eurodollar Advances, as applicable, shall be
35
suspended, and such affected Advances shall be repaid or converted to a Base
Rate Advance in Dollars; provided that if Borrower elects to make such
conversion, Borrower shall pay any and all costs, fees and other expenses
incurred by the Administrative Agent and the Lenders in effecting such
conversion.
SECTION 3.08. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any Eurodollar Advance or any Alternative Currency Loan has
become unlawful by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Lender shall give prompt notice (by
telephone confirmed in writing) to Borrower and to the Administrative Agent of
such determination and a summary of the basis for such determination (which
notice the Administrative Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in subsection
(a) above, (i) Borrower's right to request and such Lender's obligation to make
Eurodollar Advances or such Alternative Currency Loan, as applicable, shall be
immediately suspended, and such Lender shall make a Base Rate Advance in Dollars
as part of the requested Borrowing of Eurodollar Advances, which Base Rate
Advance shall, for all other purposes, be considered part of such Borrowing, and
(ii) if the affected Eurodollar Advances or Alternative Currency Loans, as
applicable, are then outstanding, such Advances or Loans shall be repaid or
converted to a Base Rate Advance in Dollars; provided that if Borrower elects to
make such conversion, Borrower shall pay any and all costs, fees and other
expenses incurred by the Administrative Agent and the Lenders in effecting such
conversion; provided further that if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 3.08(b).
SECTION 3.09. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
the force of law):
(A) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its Eurodollar Advances
or Alternative Currency Loans, as applicable, or its obligation to make
Eurodollar Advances or Alternative Currency Loans, as applicable, or the basis
of taxation of payments to any Lender of the principal of or interest on its
Eurodollar Advances or Alternative Currency Loans, as applicable, or its
obligation to make Eurodollar Advances or Alternative Currency Loans, as
applicable, shall have changed (except for changes in the tax on the overall net
income of such Lender or its applicable Lending Office
36
imposed by the jurisdiction in which such Lender's principal executive office or
applicable Lending Office is located); or
(B) any reserve (including, without limitation, any imposed by
the Board of Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender's applicable Lending Office shall be imposed or
deemed applicable or any other condition affecting its Eurodollar Advances or
Alternative Currency Loans, as applicable, or its obligation to make Eurodollar
Advances or Alternative Currency Loans, as applicable, shall be imposed on any
Lender or its applicable Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances or
Alternative Currency Loans, as applicable, or there shall be a reduction in the
amount received or receivable by such Lender or its applicable Lending Office,
or
(ii) in the event that any Lender shall have determined that any
law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material;
then, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Borrower (with a copy of such notice and demand to the
Administrative Agent), Borrower shall pay to the Administrative Agent for the
account of such Lender within five (5) Business Days after the date of such
notice and demand, additional amounts sufficient to indemnify such Lender
against such increased cost or reduced yield. A certificate as to the amount of
such increased cost or reduced yield submitted to Borrower and the
Administrative Agent by such Lender in good faith and accompanied by a statement
prepared by such Lender describing in reasonable detail the basis for and
calculation of such increased cost, shall, except for manifest error, be final,
conclusive and binding for all purposes.
In addition, if at any time a Eurodollar Reserve Percentage greater than
0% is imposed on any Lender, Borrower shall pay to such Lender additional
interest on the unpaid principal amount of the Eurodollar Advances denominated
in Dollars of such Lender until such principal amount is paid in full at an
interest rate per annum equal at all times to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable LIBOR for such Eurodollar Advance for such Interest Period by (ii)
1.00 minus the Eurodollar Reserve Percentage, payable on each date on which
interest is payable on such Eurodollar Advance. Such additional
37
interest, if any, shall be determined by such Lender and notified to Borrower
through the Administrative Agent.
(b) If any Lender shall advise the Administrative Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Section 3.09(a)
or any other circumstances beyond such Lender's reasonable control arising after
the date of this Agreement affecting such Lender or the London interbank market
or such Lender's position in such markets, LIBOR as determined by the
Administrative Agent, will not adequately and fairly reflect the cost to such
Lender of funding its Eurodollar Advances, then, and in any such event:
(i) the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the other Lenders of such
advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be immediately
suspended; and
(iii) such Lender shall make a Base Rate Advance in Dollars as part
of the requested Borrowing of Eurodollar Advances, as the case may be, which
Base Rate Advance shall, for all other purposes, be considered part of such
Borrowing.
(c) Each Lender or Administrative Agent shall make written demand on
Borrower for indemnification or compensation pursuant to this Section 3.09 no
later than sixty (60) days after the event giving rise to the claim for
indemnification or compensation occurs. In the event that any Lender or
Administrative Agent fails to give Borrower notice within the time limitations
prescribed in the foregoing sentence, Borrower shall not have any obligation to
pay such claim for compensation or indemnification for such period of delay.
SECTION 3.10. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances or Alternative Currency Loans, as applicable, affected by the matters
or circumstances described in Sections 3.06(b), 3.07, 3.08 or 3.09 to reduce the
liability of Borrower or avoid the results provided thereunder, so long as such
designation is not materially disadvantageous to such Lender as determined by
such Lender, which determination if made in good faith, shall be conclusive and
binding on all parties hereto. Nothing in this Section 3.10 shall affect or
postpone any of the obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Borrower thereafter pursuant to Section 3.06(b), such Lender shall use
reasonable efforts to furnish Borrower notice thereof as soon as practicable
thereafter; provided, however, that no
38
delay or failure to furnish such notice shall in any event release or discharge
Borrower from its obligations to such Lender pursuant to Section 3.06(b) or
otherwise result in any liability of such Lender.
SECTION 3.11. FUNDING LOSSES. Borrower shall compensate each Lender, upon
its written request to Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Advances and any foreign
exchange costs), to the extent not recoverable by such Lender in connection with
a re-employment of such funds and including loss of anticipated profits, which
the Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of, Eurodollar Advances
to Borrower does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (ii)
if any repayment (including mandatory prepayments and any conversions pursuant
to Section 3.08(b)) of any Eurodollar Advances by Borrower occurs on a date
which is not the last day of an Interest Period applicable thereto, or (iii) if,
for any reason, Borrower defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement. In no circumstance will
Borrower be responsible for losses (other than administrative costs) where
interest rates have increased as of the date of determination of funding losses
hereunder.
SECTION 3.12. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this Article III shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market in the applicable
Permitted Currency bearing interest at the rate applicable to such Eurodollar
Advances in an amount equal to the amount of the Eurodollar Advances and having
a maturity comparable to the relevant Interest Period and through the transfer
of such Eurodollar Advances from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided however, that
each Lender may fund each of its Eurodollar Advances in any manner it sees fit
and the foregoing assumption shall be used only for calculation of amounts
payable under this Article III.
SECTION 3.13. APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Loans and payments in respect of any fee, commission or
other amount payable to the Lenders under this Agreement or any Note shall be
apportioned among all outstanding Commitments and Loans to which such payments
relate, proportionately to the Lenders' respective Pro Rata Share of such
Commitments and outstanding Loans. The Administrative Agent shall promptly
distribute to each Lender at its Payment Office or such other address as any
Lender may request its Pro Rata Share of all such payments received by the
Administrative Agent; provided that the Issuing Lender's fees and L/C
Participants' commissions shall be paid to the Issuing Lender and L/C
Participants, as applicable.
SECTION 3.14. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether
39
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its pro rata portion of payments or reductions on
account of such obligations obtained by all the Lenders, such Lender shall
forthwith (i) notify each of the other Lenders and Administrative Agent of such
receipt, and (ii) purchase from the other Lenders such participations in the
affected obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional costs,
but without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 3.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation.
SECTION 3.15. ALTERNATIVE CURRENCY MATTERS.
(a) Effectiveness of Euro Provisions. With respect to any state (or the
currency of such state) that is not a Participating Member State on the date of
this Agreement, the provisions of this Section 3.15 shall become effective in
relation to such state (and the currency of such state) at and from the date on
which such state becomes a Participating Member State.
(b) Basis of Accrual. Subject to clause (a) above, with respect to the
currency of any state that becomes a Participating Member State, the accrual of
interest or fees expressed in this Agreement with respect to such currency shall
be based upon the applicable convention or practice in the London Interbank
Market for the basis of accrual of interest or fees in respect of the Euro,
which such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a Participating Member
State; provided that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(c) Redenomination of Alternative Currency Loans.
(i) Conversion to the Alternate Base Rate. If any Alternative
Currency Loan is required to bear interest based on the Base Rate rather than
the Eurodollar Rate pursuant to Section 3.07, Section 3.08 or any other
applicable provision hereof, such Loan shall be funded in Dollars in an amount
equal to the Dollar Amount of such Loan, all subject to the provisions of
Section 3.05(b). The Borrower shall reimburse the Lenders upon any such
conversion for any amounts required to be paid under Section 3.11.
(ii) Redenomination of Loans. Subject to clause (a) above, any Loan
to be denominated in the currency of the applicable Participating Member State
shall be made in the Euro.
40
(iii) Redenomination of Obligations. Subject to clause (a) above
hereof, any obligation of any party under this Agreement or any other Credit
Document which has been denominated in the currency of a Participating Member
State shall be redenominated into the Euro.
(iv) Further Assurances. The terms and provisions of this Agreement
will be subject to such reasonable changes of construction as determined by the
Administrative Agent to reflect the implementation of the EMU in any
Participating Member State or any market conventions relating to the fixing
and/or calculation of interest being changed or replaced and to reflect market
practice at that time, and subject thereto, to put the Administrative Agent, the
Lenders and the Borrower in the same position, so far as possible, that they
would have been if such implementation had not occurred. In connection
therewith, the Borrower agrees, at the request of the Administrative Agent, at
the time of or at any time following the implementation of the EMU in any
Participating Member State or any market conventions relating to the fixing
and/or calculation of interest being changed or replaced, to enter into an
agreement amending this Agreement in such manner as the Administrative Agent
shall reasonably request.
(d) Regulatory Limitation. In the event, as a result of increases in the
value of Alternative Currencies against the Dollar or for any other reason, the
obligation of any of the Lenders to make or continue Loans or issue or extend
Letters of Credit (taking into account the Dollar Amount of the Obligations and
all other indebtedness required to be aggregated under 12 U.S.C.A. Section 84,
as amended, the regulations promulgated thereunder and any other Requirement of
Law) is determined by such Lender to exceed its then applicable legal lending
limit under 12 U.S.C.A. Section 84, as amended, and the regulations promulgated
thereunder, or any other Requirement of Law, the amount of additional Loans or
Letters of Credit such Lender shall be obligated to make or issue or participate
in hereunder shall immediately be reduced to the maximum amount which such
Lender may legally advance (as determined by such Lender), the obligation of
each of the remaining Lenders hereunder shall be proportionately reduced, based
on their applicable Pro Rata Share and, to the extent necessary under such laws
and regulations (as determined by each of the Lenders, with respect to the
applicability of such laws and regulations to itself), and the Borrower shall
reduce, or cause to be reduced, complying to the extent practicable with the
remaining provisions hereof, the Loans and Letters of Credit outstanding
hereunder by an amount sufficient to comply with such maximum amounts.
(e) Exchange Indemnification and Increased Costs. The Borrower shall, upon
demand from the Administrative Agent, pay to the Administrative Agent, any
Issuing Lender or any applicable Lender, the amount of (i) any loss or cost or
increased cost incurred by the Administrative Agent, any Issuing Lender or any
applicable Lender, (ii) any reduction in any amount payable to or in the
effective return on the capital to the Administrative Agent, any Issuing Lender
or any applicable Lender, (iii) any interest or any other return, including
principal, foregone by the Administrative Agent or any applicable Lender as a
result of the introduction of, change over to or operation of the Euro, or (iv)
any currency exchange loss that the Administrative Agent, any Issuing Lender or
any applicable Lender sustains as a result of any payment being made by the
Borrower in a currency other than that originally extended to the Borrower or as
a result of any other currency exchange loss incurred by the Administrative
41
Agent or any applicable Lender under this Agreement. A certificate of the
Administrative Agent, such Issuing Lender or such applicable Lender setting
forth the basis for determining such additional amount or amounts necessary to
compensate the Administrative Agent, such Issuing Lender or the applicable
Lender shall be conclusively presumed to be correct save for manifest error.
(f) Exchange Rates. For purposes of determining the Borrower's compliance
with Section 3.05(b)(i)(A) or the borrowing limits set forth in Section 2.01 and
Section 2A.01, the Dollar Amount of any Alternative Currency Loan or Alternative
Currency Letter of Credit to be made, continued, converted or issued shall be
determined in accordance with the terms of this Agreement by the Administrative
Agent (in respect of the most recent Revaluation Date). Such Dollar Amount shall
become effective as of such Revaluation Date for such Alternative Currency Loan
or Alternative Currency Letter of Credit and shall be the Dollar Amount employed
in converting any amounts between the applicable currencies until the next
Revaluation Date to occur for such Alternative Currency Loan or Alternative
Currency Letter of Credit.
(g) Rounding and Other Consequential Changes. Subject to clause (a) above,
without prejudice and in addition to any method of conversion or rounding
prescribed by any EMU Legislation and without prejudice to the respective
obligations of the Borrower to the Administrative Agent and the Lenders and the
Administrative Agent and the Lenders to the Borrower under or pursuant to this
Agreement, except as expressly provided in this Agreement, each provision of
this Agreement, including, without limitation, the right to combine currencies
to effect a set-off, shall be subject to such reasonable changes of
interpretation as the Administrative Agent may from time to time specify to be
necessary or appropriate to reflect the introduction of or change over to the
Euro in Participating Member States.
(h) Continuity of Contract. The parties hereto agree that the occurrence
or non-occurrence of EMU, any event or events associated with EMU and/or the
introduction of the Euro in all or any part of the European Union (a) will not
result in the discharge, cancellation, rescission or termination in whole or in
part of this Agreement or any other Credit Document, (b) will not give any party
the right to cancel, rescind, terminate or vary this Agreement or any other
Credit Document and (c) will not give rise to an Event of Default, in each case
other than as specifically provided in this Agreement.
SECTION 3.16. BENEFITS TO GUARANTORS. In consideration of the execution
and delivery by the Guarantors of the Guaranty Agreements, Borrower agrees,
subject to the terms hereof, to make extensions of credit hereunder available to
the Guarantors.
ARTICLE IV.
CONDITIONS TO BORROWINGS AND LETTERS OF CREDIT
The obligations of each Lender to make Advances and the obligation of
the Issuing Lender to issue Letters of Credit to Borrower hereunder subject to
the satisfaction of the following conditions:
42
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF CREDIT.
On the Closing Date, Borrower shall have satisfied each of the following
conditions:
(a) Borrower shall have paid to the Administrative Agent and the Lenders
the fees set forth or referenced in Section 3.04 and any other accrued and
unpaid fees, out-of-pocket expenses or commissions due hereunder (including,
without limitation, legal fees and expenses) related to due diligence performed
by the Administrative Agent or in connection with the closing of the
transactions contemplated by this Agreement.
(b) The indebtedness under the Existing Credit Agreement shall be repaid
in full and terminated and the Administrative Agent shall have received a
pay-off letter in form and substance satisfactory to each of them evidencing
such repayment and termination.
(c) The Administrative Agent shall have completed, to its satisfaction,
all legal, tax, business and other due diligence with respect to the business,
assets, liabilities, operations and condition (financial or otherwise) of the
Borrower and its Subsidiaries in scope and determination satisfactory to the
Administrative Agent in its sole discretion.
(d) The Administrative Agent shall have received the following, in form
and substance reasonably satisfactory in all respects to the Lenders and (except
for the Notes) in sufficient number for each Lender:
(i) the duly executed counterparts of this Agreement;
(ii) the duly executed Syndicated Notes and the duly executed Swing
Line Note;
(iii) the duly executed Guaranty Agreements;
(iv) a duly executed certificate of Borrower, in substantially the
form of EXHIBIT E attached hereto and appropriately completed, certifying that
(i) the representations and warranties set forth in Article 5 hereof are true
and correct on and as of such date with the same effect as though made on and as
of such date, (ii) Borrower and the Guarantors are in compliance with all the
terms and provisions set forth in this Agreement and the other Credit Documents
or their respective parts to be observed or performed, (iii) on the Closing
Date, no Default or Event of Default, will have occurred or be continuing and
(iv) as of the Closing Date, there has been no materially adverse change in the
financial condition of Borrower and its Subsidiaries as reflected in the pro
forma financial statements delivered to the Administrative Agent prior to the
Closing Date;
(v) a duly executed solvency certificate of Borrower and the
Guarantors, in form and substance satisfactory to the Lenders;
(vi) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties attaching and certifying copies of the resolutions of the
boards of directors of the Credit
43
Parties, authorizing as applicable the execution, delivery and performance of
the Credit Documents;
(vii) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, and (ii) the
bylaws or comparable governing documents of such entities;
(viii) certified copies of the certificate or articles of
incorporation of each Credit Party certified by the Secretary of State or the
Secretary or Assistant Secretary of such Credit Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation or organization of such
Credit Party;
(ix) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the Credit
Parties, in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, authorizations, filings and orders
shall be in full force and effect and all applicable waiting periods shall have
expired;
(x) certificates of insurance issued on behalf of insurers of
Borrower and the Guarantors, describing in reasonable detail the types and
amounts of insurance maintained by Borrower and the Guarantors;
(xi) the favorable opinion of ▇▇▇▇▇ Day, counsel to the Credit
Parties, substantially in the form of EXHIBIT F-1 addressed to the
Administrative Agent and each of the Lenders and the favorable opinion of
in-house general counsel to the Credit Parties, substantially in the form of
EXHIBIT F-2 addressed to the Administrative Agent and each of the Lenders;
(xii) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of the
Credit Documents shall be reasonably satisfactory in form and substance to the
Required Lenders;
(xiii) projected income statements, projected balance sheets, and
projected statements of cash flow of the Consolidated Companies, all prepared in
accordance with GAAP, on an annual basis for the five (5) year period following
the Closing Date;
(xiv) unaudited financial statements of the Consolidated Companies
for all interim quarterly periods ending after September 30, 2004 and through
the Closing Date;
(xv) audited financial statements for the Consolidated Companies for
the fiscal year ended December 31, 2003; and
(xvi) a certificate of the chief financial officer of the Borrower
as to the calculation of the Applicable Margin and Applicable Commitment
Percentage as of the Closing Date after giving pro forma effect to the closing
of the Facility and attaching the calculations thereof.
44
SECTION 4.02. CONDITIONS TO ALL LOANS. At the time of the making of all
Loans or the issuance or extension of any Letter of Credit (before as well as
after giving effect to such Loans or Letters of Credit and to the proposed use
of the proceeds thereof), or the conversion or continuation of any Loan, the
following conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Loans
(other than the representations and warranties given as of a specific date);
(c) the Loans to be made or Letters of Credit to be issued and the use of
proceeds thereof shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, the Margin Regulations or
any other material law, rule, injunction, or regulation, or determination of any
court of law or other governmental authority applicable to Borrower; and
(d) Borrower shall be in compliance with the borrowing limits set forth in
Section 3.05(b).
Each request for a new Borrowing or Letter of Credit and the acceptance by
Borrower of the proceeds thereof (including the continuation or conversion of an
existing Borrowing) shall constitute a representation and warranty by Borrower,
as of the date of the Loans comprising such Borrowing or the issuance of such
Letter of Credit, that the applicable conditions specified in Sections 4.01 and
4.02 have been satisfied or waived in writing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all other Consolidated Companies) represents
and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Credit
Parties is a corporation duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation. Each of the Credit
Parties (i) has the corporate power and authority and the legal right to own and
operate its property and to conduct its business, (ii) is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership of property or the conduct of its business requires such
qualification, and (iii) is in compliance with all Requirements of Law, except
where the failure to duly qualify or to comply with applicable Requirements of
Law would not have a Materially Adverse Effect.
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the Credit Parties
has the corporate power and authority to make, deliver and perform the Credit
Documents to which it is
45
a party and has taken all necessary corporate action to authorize the execution,
delivery and performance of such Credit Documents. No consent or authorization
of, or filing with, any Person (including, without limitation, any governmental
authority), is required in connection with the execution, delivery or
performance by any Credit Party, or the validity or enforceability against any
Credit Party, of the Credit Documents, other than such consents, authorizations
or filings which have been made or obtained.
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement and each other
Credit Document has been duly authorized, executed and delivered by the
respective Credit Parties, and this Agreement and each other Credit Document
constitute legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 5.04. NO CONTRACTUAL OR LEGAL BAR. The execution, delivery and
performance by Borrower and each Guarantor of the Credit Documents to which it
is a party (a) will not contravene any material provision of any Requirement of
Law, (b) will not conflict with or be inconsistent with or result in any breach
of, or constitute a default under, any Contractual Obligations of any
Consolidated Company that would result in liability to any Credit Party of
$500,000 or more in the aggregate or otherwise result in a Materially Adverse
Effect, (c) will not violate any provision of the certificate of incorporation
(or equivalent thereof) or bylaws (or equivalent thereof) of Borrower or any
Guarantor, (d) will not require the consent, approval or authorization of any
governmental or non-governmental authority or Person and (e) will not result in
the creation of any Lien upon the assets or properties of Borrower and its
Subsidiaries, other than those Liens permitted under Section 7.01.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS. No litigation,
investigations or proceedings of or before any courts, tribunals, arbitrators or
governmental authorities are pending or, to the knowledge of Borrower,
threatened by or against any of the Consolidated Companies, or against any of
their respective properties or rights, existing or future (a) with respect to
any Credit Document or any of the transactions contemplated hereby or thereby,
or (b) which, if adversely determined, would reasonably be expected to have a
Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the Consolidated
Companies is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Consolidated Companies is subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Credit Document.
46
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of any of the
Loans or Letters of Credit will be used for any purpose which violates, or which
would be inconsistent or not in compliance with, the provisions of the
applicable Margin Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Consolidated Companies have received no notices of claims or
potential liability under, and are in compliance with, all applicable
Environmental Laws, where such claims and liabilities under, and failures to
comply with, such statutes, regulations, rules, ordinances, laws or licenses,
would reasonably be expected to result in penalties, fines, claims or other
liabilities to the Consolidated Companies having a Materially Adverse Effect.
(b) None of the Consolidated Companies has received any notice of
violation, or notice of any action, either judicial or administrative, from any
governmental authority (whether United States or foreign) relating to the actual
or alleged violation of any Environmental Law, including, without limitation,
any notice of any actual or alleged spill, leak, or other release of any
Hazardous Substance, waste or hazardous waste by any Consolidated Company or its
employees or agents, or as to the existence of any contamination on any
properties owned by any Consolidated Company, where any such violation, spill,
leak, release or contamination would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated Companies
having a Materially Adverse Effect.
(c) The Consolidated Companies have obtained all necessary governmental
permits, licenses and approvals which are material to the operations conducted
on their respective properties, including without limitation, all required
material permits, licenses and approvals for (i) the emission of air pollutants
or contaminants, (ii) the treatment or pretreatment and discharge of waste water
or storm water, (iii) the treatment, storage, disposal or generation of
hazardous wastes, (iv) the withdrawal and usage of ground water or surface
water, and (v) the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Credit Parties currently maintain insurance
with respect to their respective properties and businesses, with financially
sound and reputable insurers, having coverages against losses or damages of the
kinds customarily insured against by reputable companies in the same or similar
businesses, such insurance being the types, and in amounts no less than those
amounts which are, customary for such companies under similar circumstances;
provided, however, that the Company may self insure in amounts satisfactory to
management, subject to the provisions of Section 6.06(a). The Consolidated
Companies have paid all material amounts of insurance premiums now due and owing
with respect to such insurance policies and coverages, and such policies and
coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies is in default
under or with respect to any material Contractual Obligation in any respect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. None of the Consolidated
Companies is a party to or bound by any Contractual Obligation or Requirement of
Law which has had or would reasonably be expected to have a Materially Adverse
Effect.
47
SECTION 5.12. TAXES. Each of the Consolidated Companies has filed or
caused to be filed all declarations, reports and tax returns which are required
to have been filed, and has paid all taxes, custom duties, levies, charges and
similar contributions ("taxes" in this Section 5.12) shown to be due and payable
on said returns or on any assessments made against it or its properties, and all
other taxes, fees or other charges imposed on it or any of its properties by any
governmental authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided in its
books or where the aggregate sum of taxes unpaid is less than $500,000); and no
tax liens have been filed and, to the knowledge of Borrower, no claims are being
asserted with respect to any such taxes, fees or other charges.
SECTION 5.13. SUBSIDIARIES. Schedule 5.13 accurately describes as of the
Closing Date (1) the complete name of each Subsidiary of Borrower, (2) the
jurisdiction of incorporation or organization of each Subsidiary of Borrower,
(3) the ownership of all issued and outstanding Capital Stock of each Subsidiary
of Borrower and (4) whether such Subsidiary is a Material Subsidiary. Except as
disclosed on Schedule 5.13, Borrower has no Subsidiaries and neither Borrower
nor any Subsidiary is a joint venture partner or general partner in any
partnership. Each of the Subsidiaries that is not a Guarantor is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to transact business in every
jurisdiction where the failure to so qualify would have a Materially Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
as now conducted in each case where the failure to have the same would have a
Materially Adverse Effect.
SECTION 5.14. FINANCIAL STATEMENTS. The audited balance sheet of the
Consolidated Companies as of December 31, 2003, and the related audited
statements of income and retained earnings and cash flows for the fiscal year
then ended, copies of which have been delivered to the Lenders, are complete and
correct and fairly present, in conformity with GAAP, the financial position of
the Consolidated Companies as of such date and time. The Consolidated Companies
do not have any material contingent obligations, contingent liabilities or other
obligations which are not reflected in the balance sheet referenced above or the
footnotes thereto. Since December 31, 2003, there have been no changes with
respect to the Consolidated Companies which has had or would reasonably be
expected to have a Materially Adverse Effect.
SECTION 5.15. ERISA.
(a) Identification of Plans. (i) None of the Consolidated Companies nor
any of their respective ERISA Affiliates maintains or contributes to, or has
during the past two years maintained or contributed to, any Plan that is subject
to Title IV of ERISA, and (ii) none of the Consolidated Companies maintains or
contributes to any Foreign Plan;
(b) Compliance. Each Plan and each Foreign Plan maintained by the
Consolidated Companies have at all times been maintained, by their terms and in
operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan maintained
or contributed to by such Consolidated Company or any ERISA
48
Affiliate thereof, including without limitation, any tax or penalty under Title
I or Title IV of ERISA or under Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 404, or 419 of the Tax
Code, where the failure to comply with such laws, and such taxes and penalties,
together with all other liabilities referred to in this Section 5.15 (taken as a
whole), would in the aggregate have a Materially Adverse Effect;
(c) Liabilities. The Consolidated Companies are subject to no liabilities
(including withdrawal liabilities) with respect to any Plans or Foreign Plans
maintained or contributed to by such Consolidated Companies or any of their
ERISA Affiliates, including without limitation, any liabilities arising from
Titles I or IV of ERISA, other than obligations to fund benefits under an
ongoing such Plan and to pay current contributions, expenses and premiums with
respect to such Plans or Foreign Plans, where such liabilities, together with
all other liabilities referred to in this Section 5.15 (taken as a whole), would
in the aggregate have a Materially Adverse Effect;
(d) Funding. The Consolidated Companies and, with respect to any Plan
which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed by any of them under the terms of each Plan and applicable law, and
(b) required to be paid as expenses by any of them (including PBGC or other
premiums) of each Plan, where the failure to pay such amounts (when taken as a
whole, including any penalties attributable to such amounts) would have a
Materially Adverse Effect. No Plan maintained by a Consolidated Company subject
to Title IV of ERISA has an "amount of unfunded benefit liabilities" (as defined
in Section 4001(a)(18) of ERISA, determined as if such Plan terminated on any
date on which this representation and warranty is deemed made, in any amount
which, together with all other liabilities referred to in this Section 5.15
(taken as a whole), would have a Materially Adverse Effect if such amount were
then due and payable. The Consolidated Companies are subject to no liabilities
with respect to post-retirement medical benefits other than those accrued on
Borrower's financial statements.
(e) With respect to any Foreign Plan, reasonable reserves have been
established in accordance with prudent business practice or where required by
ordinary accounting practices in the jurisdiction where the Foreign Subsidiary
maintains its principal place of business or in which the Foreign Plan is
maintained. The aggregate unfunded liabilities, after giving effect to any
reserves for such liabilities, with respect to such Foreign Plans, together with
all other liabilities referred to in this Section 5.15 (taken as a whole), would
not have a Materially Adverse Effect.
SECTION 5.16. POSSESSION OF FRANCHISES, LICENSES, ETC. . Each of the
Consolidated Companies possesses all franchises, certificates, licenses, permits
and other authorizations from governmental political subdivisions or regulatory
authorities, that are necessary in any material respect for the ownership,
maintenance and operation of its properties and assets, and none of the
Consolidated Companies is in violation of any thereof in any material respect.
SECTION 5.17. PATENTS, TRADEMARKS, LICENSES, ETC. (i) The Consolidated
Companies have obtained and hold in full force and effect all patents,
trademarks, service marks, trade names, copyrights, licenses and other such
rights, free from burdensome restrictions, which are necessary for the operation
of their respective businesses as presently conducted and where the
49
result of a failure to obtain and hold such patents, trademarks, service marks,
trade names, copyrights, licenses and other such rights would have a Materially
Adverse Effect, and (ii) to the best of Borrower's knowledge, no product,
process, method, service or other item presently sold by or employed by any
Consolidated Company in connection with such business infringes any patents,
trademark, service ▇▇▇▇, trade name, copyright, license or other right owned by
any other person and there is not presently pending, or to the knowledge of
Borrower, threatened, any claim or litigation against or affecting any
Consolidated Company contesting such Person's right to sell or use any such
product, process, method, substance or other item where the result of such
failure to obtain and hold such benefits or such infringement would have a
Materially Adverse Effect.
SECTION 5.18. OWNERSHIP OF PROPERTY. Each Consolidated Company has good
and marketable fee simple title to or a valid leasehold interest in all of its
real property and good title to, or a valid leasehold interest in, all of its
other material assets, as such properties are reflected in the most recent
financial statements delivered by Borrower to the Administrative Agent, other
than properties disposed of in the ordinary course of business since such date
or as otherwise permitted by the terms of this Agreement, subject to no Lien or
title defect of any kind, except Liens permitted under Section 7.01. The
Consolidated Companies enjoy peaceful and undisturbed possession under all of
their respective leases.
SECTION 5.19. FINANCIAL CONDITION. On the Closing Date and after giving
effect to the transactions contemplated by this Agreement, the Guaranty
Agreements and the other Credit Documents, including without limitation, the use
of the proceeds of the Loans as provided in Section 2.01(b), each of the Credit
Parties is Solvent.
SECTION 5.20. LABOR MATTERS. The Consolidated Companies have experienced
no strikes, labor disputes, slow downs or work stoppages due to labor
disagreements which have had, or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge of Borrower, there are no
such strikes, disputes, slow downs or work stoppages threatened against any
Consolidated Company which if they occurred, would reasonably be expected to
have a Materially Adverse Effect. The hours worked and payment made to employees
of the Consolidated Companies have not been in violation in any material respect
of the Fair Labor Standards Act (in the case of Consolidated Companies that are
not Foreign Subsidiaries) or any other applicable law dealing with such matters.
All payments due from the Consolidated Companies, or for which any claim may be
made against the Consolidated Companies, on account of wages and employee health
and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies in all jurisdictions
where the failure to pay or accrue such liabilities would reasonably be expected
to have a Materially Adverse Effect.
SECTION 5.21. PAYMENT OR DIVIDEND RESTRICTIONS. None of the Consolidated
Companies is party to or subject to any agreement or understanding restricting
or limiting the payment of any dividends or other distributions by any such
Consolidated Company.
SECTION 5.22. OUTSTANDING INDEBTEDNESS. Schedule 5.22 lists all
outstanding Indebtedness of the Consolidated Companies as of September 30, 2004,
and since September 30,
50
2004, no additional material Indebtedness has been incurred by the Consolidated
Companies. There exists no default under the provisions of any instrument
evidencing or securing Indebtedness of Borrower or any of its Subsidiaries or of
any agreement otherwise relating thereto which has had or would reasonably be
expected to have a Material Adverse Effect.
SECTION 5.23. DISCLOSURE. No representation or warranty contained in this
Agreement (including the Schedules attached hereto) or in any other document
furnished from time to time pursuant to the terms of this Agreement, contains or
will contain any untrue statement of a material fact or omits or will omit to
state any material fact necessary to make the statements herein or therein not
misleading in any material respect as of the date made or deemed to be made. The
projections delivered pursuant to Section 4.01(c)(xiii) represent good faith
estimates (utilizing reasonable assumptions) of the financial condition and
operations of Borrower and its Subsidiaries for the period included in such
projections, however, such projections do not constitute a representation,
warranty, or covenant regarding the Consolidated Companies' future financial
performance. There is no fact known to Borrower which is having, or is
reasonably expected to have, a Materially Adverse Effect.
SECTION 5.24. OFAC.. None of the Borrower, any Subsidiary of the Borrower
or any Affiliate of the Borrower: (i) is a person named on the list of Specially
Designated Nationals or Blocked Persons maintained by the U.S. Department of the
Treasury's Office of Foreign Assets Control available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise
published from time to time; or (ii) is (A) an agency of the government of a
country, (B) an organization controlled by a country, or (C) a person resident
in a country that is subject to a sanctions program identified on the list
maintained by OFAC and available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise
published from time to time, as such program may be applicable to such agency,
organization or person; or (iii) derives more than 15% of its assets or
operating income from investments in or transactions with any such country,
agency, organization or person; and (iv) none of the proceeds from the loan will
be used to finance any operations, investments or activities in, or make any
payments to, any such country, agency, organization, or person.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Obligation
shall remain unpaid, Borrower will (unless waived in writing by the Required
Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, (A) its corporate existence,
except (i) for mergers, divestitures and consolidations permitted pursuant to
Section 7.03, and (ii) that a Subsidiary that is not a Material Subsidiary may
dissolve, so long as either it has no assets or transfers all of its assets to
one or more other Consolidated Companies; and (B) except where the failure to be
so qualified would reasonably be expected to have a Materially Adverse Effect,
its qualification to do business as a foreign corporation in all jurisdictions
where it conducts business or other activities making such qualification
necessary.
51
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with, all Requirements of Law (including, without
limitation, the Environmental Laws, ERISA and employee benefit laws) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations
would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of its
Subsidiaries to pay, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto or the aggregate sum of
taxes unpaid is less than $500,000.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions in
accordance with GAAP.
SECTION 6.05. VISITATION, INSPECTION, ETC. (a) Prior to the occurrence of
a Default, permit, and cause each of its Subsidiaries to permit, any
representative of any Lender at such Lender's expense after reasonable notice
during regular business hours (which date of visit shall be mutually agreed upon
but shall not be later than 2 weeks after the date requested by such Lender) to
visit and inspect, in the company of any of the Executive Officers or their
designees and their independent public accountants, any of their respective
properties, and to examine and make abstracts from any of their respective books
and records and to discuss with any of the Executive Officers the respective
affairs, finances and accounts of Borrower and its Subsidiaries. Prior to the
occurrence of a Default, each Lender shall be entitled to no more than two (2)
such visits and inspections per year.
(b) After the occurrence of a Default, permit, and cause each of its
Subsidiaries to permit, any representative of any Lender at Borrower's expense
to visit and inspect, in the company of any of the Executive Officers or their
designees and their independent public accountants, any of their respective
properties, and to examine and make abstracts from any of their respective books
and records and to discuss with any of the Executive Officers the respective
affairs, finances and accounts of Borrower and its Subsidiaries.
(c) To cooperate and assist, and to cause each of its Subsidiaries to
cooperate and assist, in such visits and inspections set forth in paragraphs (a)
and (b) above in this Section, in each case at such reasonable times and as
often as may reasonably be desired; provided, however, that (i) in no event
shall any Lender have access to information prohibited by law, and (ii) in the
event any Lender desires to inspect confidential matters (which matters shall in
no event include financial information and data of Borrower or its Subsidiaries
or other information the Lenders may require in order to determine compliance
this Agreement) under this Section, such Lender shall executed a confidentiality
agreement relating to such matters, which agreement shall contain reasonable
terms acceptable to such Lender and its counsel. Notwithstanding the foregoing,
Wachovia may disclose confidential information to
52
governmental regulatory authorities in connection with any regulatory
examination of Wachovia or in accordance with Wachovia's regulatory compliance
policy if Wachovia deems necessary for the mitigation of claims by those
authorities against Wachovia or any of its subsidiaries or affiliates.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts as are
customary for such companies under similar circumstances; provided, however,
that the Credit Parties may self-insure in amounts satisfactory to management.
Upon the request of the Administrative Agent, Borrower shall file with the
Administrative Agent a detailed list of such insurance then in effect stating
the names of the insurance companies, the limits of liability of insurance, the
date of expiration thereof, the Property and risks covered thereby and the
insured with respect thereto, and, within 60 days after notice in writing from
the Administrative Agent, obtain such additional insurance as the Required
Lenders may reasonably request as a result of a material change in the
circumstances or conditions affecting Borrower's business specifically or its
type of business generally, provided that such additional insurance is available
at a commercially reasonable cost.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, settlements and improvements thereof, all as in the judgment of
Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 6.06 shall prevent Borrower from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of its
business or the business of any Consolidated Company.
(c) Maintain in full force and effect all material patents, trademarks,
service marks, trade names, copyrights, licenses and other such rights, free
from burdensome restrictions, which are necessary for the operation of the
businesses of the Consolidated Companies as presently conducted, where the
result of failure to obtain and hold such benefits would have a Materially
Adverse Effect.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in any event
within the earlier of (i) eighty (80) days after the end of each fiscal year of
Borrower and (ii) five (5) days after the date of any required public filing
thereof, audited balance sheets of the Consolidated Companies as at the end of
such year, presented on a consolidated basis, and the related audited statements
of income, and cash flows of the Consolidated Companies for such fiscal year,
presented on a consolidated basis, setting forth in each case in comparative
form the figures for
53
the previous fiscal year, all in reasonable detail and accompanied by a report
thereon of the independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern and scope
of audit and shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such fiscal year on a
consolidated basis, and the results of operations and statements of cash flows
of the Consolidated Companies for such fiscal year in accordance with GAAP and
that the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(b) Quarterly Financial Statements. As soon as available and in any event
within the earlier of (i) fifty (50) days after the end of each fiscal quarter
of Borrower (other than the fourth fiscal quarter) and (ii) five (5) days after
the date of any required public filing thereof for such fiscal quarter, balance
sheets of the Consolidated Companies as at the end of such quarter presented on
a consolidated basis and the related statements of income, shareholders' equity,
and cash flows of the Consolidated Companies for such fiscal quarter and for the
portion of Borrower's fiscal year ended at the end of such quarter, presented on
a consolidated basis, setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion of Borrower's
previous fiscal year, all in reasonable detail and accompanied by a
certification by the chief financial officer or treasurer of Borrower that such
financial statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal quarter on
a consolidated basis, and the results of operations and statements of cash flows
of the Consolidated Companies for such fiscal quarter and such portion of
Borrower's fiscal year, in accordance with GAAP consistently applied (subject to
normal year-end audit adjustments and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the financial
statements required pursuant to subsections (a) and (b) above, a certificate
(with supporting details) of the chief financial officer or treasurer of
Borrower substantially in the form of EXHIBIT H attached hereto (the "Compliance
Certificate") (i) to the effect that, based upon a review of the activities of
the Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such fiscal year
or such fiscal quarter with Sections 6.08, 7.01, 7.04 and 7.05 and the
definition of "Material Subsidiaries";
(d) Auditor's Statement. Together with the financial statements required
pursuant to subsection (a) above, a statement of the accountants who prepared
the report referred to therein, to the effect that, in connection with their
audit, nothing has come to their attention which would cause them to believe
that Borrower failed to comply with the terms, covenants, provisions or
conditions of Sections 6.08, 7.01, 7.04 or 7.05, insofar as they relate to
accounting matters;
(e) Notice of Default. Promptly, and no later than five (5) Business Days
after any Executive Officer of Borrower has notice or knowledge of the
occurrence of an Event of Default or a Default, a certificate of the chief
financial officer or treasurer of Borrower specifying the nature thereof and the
proposed response thereto;
54
(f) Litigation and Investigations. Promptly, and no later than ten (10)
Business Days after any Executive Officer of Borrower has notice or knowledge
thereof, notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company, or
any material property of any thereof, or the threat of any such action, suit,
proceeding, investigation or arbitration;
(g) Environmental Notices. Promptly, and no later than ten (10) Business
Days after any Executive Officer of Borrower has notice or knowledge thereof,
notice of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or any
actual or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated Company
which could result in a Materially Adverse Effect;
(h) ERISA. (i) Promptly, and no later than ten (10) Business Days after
any Executive Officer of Borrower has notice or knowledge thereof, (A) with
respect to any Plan maintained by any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder, notice of a "reportable
event" described in Section 4043 of ERISA and the regulations issued from time
to time thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations); or (B) any
other event which could subject any Consolidated Company to any tax, penalty or
liability under Title I or Title IV of ERISA or Chapter 43 of the Tax Code, or
any tax or penalty resulting from a loss of deduction under Sections 404 or 419
of the Tax Code, or any tax, penalty or liability under any Requirement of Law
applicable to any Foreign Plan, where any such taxes, penalties or liabilities
could result in a Material Adverse Effect;
(ii) Promptly after such notice must be provided to the PBGC, or to
a Plan participant, beneficiary or alternative payee, any notice required under
Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or
under Section 401(a)(29) or 412 of the Tax Code with respect to any Plan
maintained by any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the intent of the
PBGC or any other governmental authority to terminate a Plan maintained or
contributed to by such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA Affiliate
under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent, promptly upon the
filing thereof with the Internal Revenue Service ("IRS") or the Department of
Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan maintained
by any Consolidated Company or ERISA Affiliate thereof which is subject to Title
IV of ERISA;
55
(v) Upon the request of the Administrative Agent, but no more
frequently than twice each calendar year, (A) true and complete copies of any
and all documents, government reports and IRS determination or opinion letters
or rulings for any Plan maintained or contributed to by any Consolidated Company
from the IRS, PBGC or DOL, received within the preceding 12 months, (B) any
reports filed with the IRS, PBGC or DOL with respect to a Plan maintained or
contributed to by the Consolidated Companies or any ERISA Affiliate thereof
filed within the preceding 12 months, or (C) a current statement of withdrawal
liability for each Multiemployer Plan contributed to by any Consolidated Company
or any ERISA Affiliate thereof;
(B) Promptly, and no later than give (5) Business Days after
any Executive Officer has notice of knowledge thereof, notice that (i) any
material contributions to any Foreign Plan have not been made by the required
due date for such contribution and such default cannot immediately be remedied,
(ii) any Foreign Plan is not funded to the extent required by the law of the
jurisdiction whose law governs such Foreign Plan based on the actuarial
assumptions reasonably used at any time, or (iii) a material change is
anticipated to any Foreign Plan that may have a Materially Adverse Effect.
(i) Liens. Promptly, and no later than five (5) Business Days after any
Executive Officer of Borrower has notice or knowledge thereof, notice of the
filing of any federal statutory Lien, tax or other state or local government
Lien or any other Lien affecting their respective properties, other than those
Liens expressly permitted by Section 7.01;
(j) New Material Subsidiaries. Within 30 days after the formation,
acquisition or existence of any new Material Subsidiary, or any other event
resulting in the creation of a new Material Subsidiary, or the domestication of
any Foreign Subsidiary, notice of the formation or acquisition of such
Subsidiary or such occurrence, including a description of the assets of such
entity, the activities in which it will be engaged, and such other information
as the Administrative Agent may request;
(k) Default under Other Debt. Immediately upon its receipt thereof, copies
of any notice received by Borrower or any other Consolidated Company from the
holder(s) of Indebtedness of the Consolidated Companies (or from any trustee,
agent, attorney, or other party acting on behalf of such holder(s)) in an amount
which, in the aggregate, exceeds $5,000,000, where such notice states or claims
the existence or occurrence of any default or event of default with respect to
such Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness;
(l) Complete Lien Search Results. As soon as available and in any event
within 30 days after the Closing Date, copies of all UCC, judgment and tax lien
search results for all of Borrower's and the Guarantors' locations in the United
States other than field offices at which is located tangible personal property
(having an aggregate value not in excess of $6,000,000); and
(m) Other Information. With reasonable promptness, any other information
as the Administrative Agent on behalf of any Lender may reasonably request from
time to time.
56
SECTION 6.08. FINANCIAL COVENANTS.
(a) Minimum Interest Coverage Ratio. Maintain as of the last day of each
fiscal quarter, a ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, calculated for the fiscal quarter then ended and the immediately
preceding three fiscal quarters, equal to or greater than 4.0 to 1.0.
(b) Funded Debt to Consolidated EBITDA. Maintain as of the last day of
each fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA,
calculated for the fiscal quarter then ended and the immediately preceding three
fiscal quarters, of less than or equal to 3.0 to 1.0.
SECTION 6.09. ADDITIONAL CREDIT PARTIES. If at any time a U.S. Subsidiary
that is not a Credit Party becomes a Material Subsidiary, Borrower shall cause
such subsidiary to execute and deliver to the Administrative Agent a supplement
to each of the Guaranty Agreements in the forms attached thereto, together with
related documents with respect to such new Subsidiary of the kind described in
Section 4.01(c)(iv), (v), (vi), (vii), (viii) and (xi), all in form and
substance satisfactory to the Administrative Agent and the Required Lenders.
SECTION 6.10. INTELLECTUAL PROPERTY. Preserve and maintain, and cause each
of its Subsidiaries to preserve and maintain, its rights, franchises, and
licenses, and its patents and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or desirable in the normal
conduct of its business, except where the failure to maintain such rights,
franchises, and licenses, patents, copyrights trademarks, trade names, and
service marks would reasonably be expected to have a Materially Adverse Effect
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Obligation
shall remain unpaid, Borrower will not and will not permit any Subsidiary to
(unless waived in writing by the Required Lenders):
SECTION 7.01. LIENS. Create, incur, assume or suffer to exist any Lien on
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the Closing Date (i) securing an aggregate amount
not in excess of $7,500,000 and to be disclosed in the lien search report to be
delivered under Section 6.07(l), and (ii) Liens on property of ChoicePoint
Direct Inc. located in Peoria, Illinois securing an industrial development
revenue bond with an outstanding principal balance not exceeding $2,500,000;
(b) Liens on any property securing Indebtedness incurred or assumed for
the purpose of financing all or any part of the acquisition cost of such
property and any refinancing thereof, provided that such Lien does not extend to
any other property and further provided that the
57
amount of Indebtedness secured by such Liens does not exceed $10,000,000 in
aggregate principal amount at any one time outstanding;
(c) Liens for taxes not yet due and payable, and Liens for taxes which are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained;
(d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are
being maintained;
(e) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(f) zoning, easements and restrictions on the use of real property which
do not materially impair the use of such property;
(g) Liens arising under ERISA;
(h) rights in property reserved or vested in any governmental authority
which do not materially impair the use of such property;
(i) Liens on assets of newly acquired Subsidiaries which were in existence
at the time of acquisition and not created in contemplation thereof;
(j) Liens granted under the Lease Documents to the extent they secure
Indebtedness in an amount not exceeding the Lease Obligations;
(k) Liens granted in favor of Borrower or any Guarantor securing
intercompany indebtedness owed by another Consolidated Company;
(l) Sales of accounts receivables (or of undivided ownership interest
therein) in connection with the Asset Securitization; and
(m) Liens (other than those permitted by paragraphs (a) through (l) of
this Section 7.01) securing Indebtedness in an aggregate principal amount
outstanding at any time not to exceed ten percent (10%) of the Consolidated Net
Worth of the Consolidated Companies as of the last day of the immediately
preceding fiscal quarter of Borrower.
SECTION 7.02. GUARANTIES. Create, incur, assume, guarantee, suffer to
exist or otherwise become liable on or with respect to, directly or indirectly,
any Guaranties other than:
58
(a) endorsements of instruments for deposit or collection in the ordinary
course of business;
(b) guarantees of Indebtedness owed by any Consolidated Company to another
Consolidated Company;
(c) Guaranties of Indebtedness to the extent such Indebtedness is
permitted under Section 6.08(b).
SECTION 7.03. MERGERS, CONSOLIDATIONS. Merge or consolidate with any other
Person, except that the foregoing restrictions shall not be applicable to:
(a) mergers or consolidations of (i) any Subsidiary with any other
Subsidiary which is a Guarantor, (ii) any Subsidiary with Borrower and (iii) any
Subsidiary other than a Material Subsidiary into any Consolidated Company;
(b) mergers or consolidations in which any Person engaged in businesses in
which Borrower is engaged as of the Closing Date or substantially related
thereto merges or consolidates with Borrower or any of its Subsidiaries where
the surviving corporation is Borrower or such Subsidiary;
provided that before and after giving effect to any such merger or
consolidations and any Funded Debt incurred by Borrower or such Subsidiary in
connection with such merger or consolidation, (x) Borrower is and will be in
compliance with Section 6.08 hereof and if the consideration paid by Borrower or
such Subsidiary in connection with such merger or consolidation is greater than
$125,000,000, Borrower has delivered pro forma financial covenants calculations
demonstrating such compliance, in such detail and using such form of
presentation of historical and forecasted financial information as may be
satisfactory to the Administrative Agent with copies provided to each Lender
(based on the projected Consolidated Interest Expense or Funded Debt, as the
case may be, for the immediately succeeding four fiscal quarters (including
Consolidated Interest Expense incurred as a result of the incurrence of any such
Funded Debt) and the historical Consolidated EBITDA (including the Consolidated
EBITDA of such Person)); (y) no other Default or Event of Default exists
hereunder; and (z) if the surviving Person is a Material Subsidiary, it promptly
complies with Section 6.09 hereof, if applicable.
SECTION 7.04. ASSET SALES. Sell, lease or otherwise dispose of its
accounts, property, stock of its Subsidiaries or other assets; provided,
however, that the foregoing restrictions on Asset Sales shall not be applicable
to:
(a) sales, leases, transfers or dispositions of assets of (i) any
Consolidated Company to Borrower or any Guarantor and (ii) any Subsidiary other
than a Material Subsidiary to any Consolidated Company;
(b) sales of inventory in the ordinary course of business and unneeded,
worn out or obsolete equipment;
59
(c) sales of accounts receivable (or of undivided ownership interests
therein) pursuant to the Asset Securitization;
(d) Asset Sales comprised of assets of any Consolidated Company where, on
the date of execution of a binding obligation to make such Asset Sale, the
assets which are the subject of the proposed Asset Sale, together with all other
such Asset Sales of the Consolidated Companies during the current fiscal year of
Borrower, did not generate ten percent (10%) or more of Consolidated EBITDA for
the immediately preceding fiscal year of Borrower;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(c) or (d) above shall be permitted if any Default or Event of Default exists at
the time of such transaction or would exist as a result of such transaction.
SECTION 7.05 INVESTMENTS, LOANS, ETC. Make, permit or hold any Investments
other than:
(a) Investments in the stock of Subsidiaries of Borrower and Receivables
Subsidiaries of Borrower existing as of the Closing Date or existing as
Subsidiaries of Borrower immediately prior to the making of such Investment, and
Investments in the form of loans and advances by Borrower to any Guarantor;
(b) Investments in the stock or other assets of any other Person that is
engaged in a business permitted by Section 7.10 hereof; provided, that after
giving effect to such Investment and any Funded Debt incurred by Borrower or
such Subsidiary in connection with making such Investment, (x) Borrower is and
will be in compliance with Section 6.08 hereof and if the Investment is greater
than $125,000,000, Borrower has delivered pro forma financial covenants
calculations demonstrating such compliance, in such detail and using such form
of presentation of historical and forecasted financial information as may be
satisfactory to the Administrative Agent; (y) no other Default or Event of
Default exists hereunder (based on the projected Consolidated Interest Expense
or Funded Debt, as the case may be, for the immediately succeeding four fiscal
quarters (including Consolidated Interest Expense incurred a result of the
incurrence of any such Funded Debt) and the historical Consolidated EBITDA
(including the Consolidated EBITDA of such Person)); and (z) as a result of such
Investment, such Person becomes a Subsidiary of Borrower, and promptly complies
with Section 6.09 if it becomes a Material Subsidiary of Borrower;
(c) marketable direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
in each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(d) Investments received in settlement of Indebtedness created in the
ordinary course of business, and the endorsement of negotiable instruments in
the ordinary course of business;
(e) commercial paper issued by corporations, each of which has a
consolidated net worth of not less than $500,000,000, and conducts a substantial
portion of its business in the
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, maturing no more than 365 days from the date of
acquisition thereof and having as at any date of determination a rating of P-1,
P-2 or P-3 from Standard & Poor's or a rating of ▇-▇, ▇-▇ or A-3 from Moody's;
(f) money market or similar depository accounts, certificates of deposit
or bankers acceptances, in each case redeemable upon demand or maturing within
one year from the date of acquisition thereof, issued by commercial banks
incorporated under the laws of the United States of America or any state thereof
or the District of Columbia, provided (x) each such bank has at any date of
determination combined capital and surplus of not less than $1,000,000,000 and a
rating of its long-term debt of at least A by Standard & Poor's or at least A by
Moody's or a long-term deposit rating of at least A issued by Standard & Poor's
or at least A issued by Moody's, (y) the aggregate amount of all such
certificates of deposit issued by such bank are fully insured at all times by
the Federal Deposit Insurance Company;
(g) advances and loans to officers and employees of the Consolidated
Companies made in the ordinary course of business, including without limitation,
loans to executives for the purchase of stock of Borrower pursuant to a program
established by the Board of Directors or a committee thereof from time to time
in an amount not to exceed $15,000,000;
(h) Investments in joint ventures in an aggregate amount during any fiscal
year of Borrower not to exceed an amount equal to ten percent (10%) of
Borrower's Consolidated Net Worth as of the end of the immediately preceding
fiscal year of Borrower; and
(i) Investments (other than those permitted by paragraphs (a) through (h)
above) in an aggregate amount during any fiscal year of Borrower not to exceed
an amount equal to five (5%) percent of Borrower's Consolidated Net Worth as of
the end of the immediately preceding fiscal year of Borrower.
SECTION 7.06 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 7.07. TRANSACTIONS WITH AFFILIATES. Enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business (excluding the Asset Securitization), with any Affiliate of any
Consolidated Company (but excluding any Affiliate which is also a Subsidiary
that is directly or indirectly wholly owned by the Credit Parties), other than
on terms and conditions substantially as favorable to such Consolidated Company
as would be obtained by such Consolidated Company at the time in a comparable
arm's-length transaction with a Person other than an Affiliate; and
SECTION 7.08. ERISA.
(a) Take or fail to take any action with respect to any Plan maintained or
contributed to by any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to continuation
health care requirements for group health plans
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under Section 4980B of the Tax Code, including without limitation (i)
establishing any such Plan, (ii) amending any such Plan (except where required
to comply with applicable law), (iii) terminating or withdrawing from any such
Plan, or (iv) incurring an amount of unfunded benefit liabilities, as defined in
Section 4001(a)(18) of ERISA, or any withdrawal liability under Title IV of
ERISA with respect to any such Plan, or any unfunded liabilities under any
Foreign Plan, without first obtaining the written approval of the Required
Lenders, where such actions or failures could result in a Material Adverse
Effect; or
(b) Permit a Plan or Foreign Plan maintained by a Consolidated Company or
a Plan subject to Title IV of ERISA of any of its ERISA Affiliates:
(i) to fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan or Foreign Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a
waiver of such standard is sought or granted with respect to such Plan or
Foreign Plan under applicable law, the terms of such Plan or Foreign Plan or
Section 412 of the Tax Code or Section 303 of ERISA; or
(ii) to be terminated or the subject of termination proceedings
under applicable law or the terms of such Plan or Foreign Plan; or
(iii) to require a Consolidated Company to provide security under
applicable law, the terms of such Plan or Foreign Plan, Section 401 or 412 of
the Tax Code or Section 306 or 307 of ERISA; or
(iv) to result for any reason, in a liability (including without
limitation, withdrawal liability) to a Consolidated Company under applicable
law, the terms of such Plan or Foreign Plan, or Title IV of ERISA;
if the result from any such failure, waiver, termination or other event a
liability to the PBGC (or any similar Person with respect to any Foreign Plan),
a Plan or any other Person that would have a Materially Adverse Effect.
SECTION 7.09. ADDITIONAL NEGATIVE PLEDGES. Create or otherwise cause or
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than the prohibitions and restrictions contained in
this Agreement, unless such asset is subject to a Permitted Lien and such
prohibition or restriction is limited to such asset.
SECTION 7.10. CHANGES IN BUSINESS. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies as of the Closing Date, which includes providing risk management and
fraud prevention information and related technology solutions to the property
and casualty insurance industry, life and health insurance industry and other
industries, (including, without limitation, (1) providing automated and
traditional underwriting and claim information services to assist U.S. insurance
companies in assessing the insurability of individuals and property and the
validity of insurance claims, (2) providing background investigations, (3)
performing paramedical exams, (4) furnishing access to
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motor vehicles reports, (5) maintaining a database of claims histories, (6)
providing claim verification and investigative services to both the property and
casualty and the life and health insurance markets, (7) providing pre-employment
background investigations, pre-employment and regulatory compliance drug testing
services and public record information to other corporate and government
organizations and (8) DNA and other forensic testing services, unless such
business is a strategic extension of the business of the Consolidated Companies
as of the Closing Date).
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
COMPANIES. Create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions to Borrower or any other
Subsidiary on such Consolidated Company's stock, or (ii) pay any indebtedness
owed to Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents.
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior written
consent of the Administrative Agent and the Required Lenders, modify, amend or
supplement (a) the Lease Documents to (i) increase by more than $5,000,000 in
the aggregate the maximum amount of the Indebtedness thereunder or the lease
payments required thereunder, (ii) increase the interest rate thereunder, (iii)
modify any requirement of prepayment or repayment thereunder which would shorten
the final maturity or average life of the Indebtedness or lease obligations
outstanding thereunder or make the requirement of prepayment more onerous, or
(iv) make any covenant or event of default contained therein more restrictive as
to Borrower and its Subsidiaries than the provisions of this Agreement or (b)
the Asset Securitization Agreements to (i) increase the program limit amount in
excess of $175,000,00, (ii) modify any requirement of prepayment or repayment
thereunder which would shorten the final maturity or average life of the
Indebtedness outstanding thereunder or make the requirement of prepayment more
onerous, or (iii) make any covenant or event of default contained therein more
restrictive as to Borrower and Subsidiaries than the provisions of this
Agreement.
SECTION 7.13. AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED DEBT.
Amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any subordinated debt of any Credit Party, or cancel or forgive,
make any voluntary or optional payment or prepayment on, or redeem or acquire
for value (including, without limitation, by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due) any subordinated debt of any Credit Party.
SECTION 7.14. CHANGES IN FISCAL YEAR. Change the calculation of the fiscal
year of Borrower.
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ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Borrower shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans or Reimbursement Obligation, or Borrower shall fail to
make within five (5) Business Days after the due date thereof any payment of
interest, fee or other amount payable hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Borrower shall fail to observe or
perform any covenant or agreement (i) contained in Section 7.08 and, if capable
of being remedied, such failure shall remain unremedied for fifteen (15) days
after the earlier of (A) an Executive Officer's obtaining knowledge thereof, or
(B) written notice thereof shall have been given to Borrower by the
Administrative Agent or any Lender, (ii) contained in Section 7.05 and, if
capable of being remedied, such failure shall remain unremedied for ten (10)
days after the earlier of (A) an Executive Officer's obtaining knowledge
thereof, or (B) written notice thereof shall have been given to Borrower by the
Administrative Agent or any Lender, or (iii) contained in Section 2.01(b),
Section 6.01, Section 6.05, Section 6.07(a), (b), (c) or (e), Section 6.08, or
Section 7.03.
SECTION 8.03. OTHER COVENANTS. Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement, other than those referred
to in Sections 8.01 and 8.02, and, if capable of being remedied, such failure
shall remain unremedied for thirty (30) days after the earlier of (i) an
Executive Officer of Borrower's obtaining knowledge thereof, or (ii) written
notice thereof shall have been given to Borrower by the Administrative Agent or
any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Administrative Agent or the Lenders by any such Person pursuant to the terms
of this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated Company
shall fail to make when due (whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any applicable grace period) any
payment of principal of or interest on any Indebtedness (other than the
Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate, or any other
event shall occur if the effect of such failure or other
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event is to accelerate, or to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Borrower or any other Consolidated Company shall
commence a voluntary case concerning itself under the Bankruptcy Code or
applicable foreign bankruptcy laws; or an involuntary case for bankruptcy is
commenced against any Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) or similar official
under applicable foreign bankruptcy laws is appointed for, or takes charge of,
all or any substantial part of the property of any Consolidated Company; or any
Consolidated Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
SECTION 8.08. MONEY JUDGMENT. A judgment or order for the payment of money
in excess of $5,000,000 not covered by insurance or otherwise having a
Materially Adverse Effect shall be rendered against Borrower or any other
Consolidated Company and such judgment or order shall continue unsatisfied and
in effect for a period of 60 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
SECTION 8.09. CHANGE IN CONTROL OF BORROWER. (i) Any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) other
than employees of Borrower (either directly or through a retirement or employee
benefit plan), shall become the "beneficial owner(s)" (as defined in said Rule
13d-3) of more than twenty-five percent (25%) of the shares of the outstanding
common stock of Borrower entitled to vote for members of Borrower's board of
directors, or (ii) any event or condition shall occur or exist which, pursuant
to the terms of any Change in Control Provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in any respect.
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SECTION 8.10. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Borrower or
any other Credit Party, or at any time it is or becomes unlawful for Borrower or
any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Borrower or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Borrower
or any such Credit Party; or
SECTION 8.11. ATTACHMENTS. An attachment or similar action shall be made
on or taken against any of the assets of any Consolidated Company with an
aggregate value (based upon the greater of the book value of such assets as
established in accordance with GAAP or the fair market value of such assets as
determined in good faith by such Consolidated Company) exceeding $5,000,000 in
aggregate and is not removed, suspended or enjoined within 60 days of the same
being made or any suspension or injunction being lifted
SECTION 8.12. REMEDIES.
(a) Upon the occurrence of an Event of Default, and at any time thereafter
if any Event of Default shall then be continuing, the Administrative Agent may,
with the consent of the Required Lenders, and upon the written (including
telecopied) request of the Required Lenders, shall, by written notice to
Borrower, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, any Lender or the holder of any Note to
enforce its claims against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the pro rata Commitments of each Lender shall
terminate immediately and any commitment fee shall forthwith become due and
payable without any other notice of any kind; and (ii) declare the principal of
and any accrued interest on the Loans, the Reimbursement Obligations, and all
other Obligations owing under this Agreement and the Credit Documents
(including, without limitation, all Letter of Credit Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
or shall be entitled to present the documents thereunder), to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived, anything
in this Agreement or the Credit Documents to the contrary; and (iii) exercise
any and all rights or remedies available under this Agreement, the Credit
Documents or at law or in equity; provided, that, if an Event of Default
specified in Section 8.07 shall occur, the result which would occur upon the
giving of written notice by the Administrative Agent to any Credit Party, as
specified in clauses (i) and (ii) above, shall occur automatically without the
giving of any such notice.
(b) Upon the occurrence of an Event of Default, and at any time thereafter
if any Event of Default shall then be continuing, the Administrative Agent may,
with the consent of the Required Lenders, and upon the written (including
telecopied) request of the Required Lenders, shall, by written notice to
Borrower, require that any or all of the then outstanding Alternative Currency
Loans be prepaid or converted into a Base Rate Advance in Dollars in the Dollar
Amount thereof, on the last day of the then current Interest Period with respect
thereto.
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(c) With respect to all Letters of Credit to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this Section
8.12, Borrower shall at such time deposit in a cash collateral account opened by
the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (which such cash collateral shall be
deposited in the applicable Permitted Currency in which each Letter of Credit is
denominated), and the unused portion thereof after all such letters of credit
shall have expired or been fully drawn upon, if any, shall be applied to repay
the Obligations on a pro rata basis. After all such Letters of Credit shall have
expired or been fully drawn upon, the Reimbursement Obligation shall have been
satisfied and all other Obligations shall have been paid in full, the balance,
if any, in such cash collateral account shall be returned to Borrower.
SECTION 8.13. CREDITING OF PAYMENTS AND PROCEEDS. In the event that
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 8.12, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied: (a) first to all expenses then
due and payable by Borrower hereunder and under the other Credit Documents, (b)
then to all indemnity obligations then due and payable by Borrower hereunder and
under the other Credit Documents, (c) then to the Administrative Agent's and
Issuing Lender's fees then due and payable, (d) then to all commitment and other
fees and commissions then due and payable, (e) then to accrued and unpaid
interest on the Swing Line Note to the Swing Line Lender, (f) then to the
principal amount outstanding under the Swing Line Note to the Swing Line Lender,
(g) then to accrued and unpaid interest on the Syndicated Notes and accrued and
unpaid interest on the Reimbursement Obligation (pro rata in accordance with all
such amounts due), (h) then to the principal amount of the Syndicated Notes,
Reimbursement Obligation and any obligations of Borrower under swap agreements
(as defined in 11 U.S.C. Section 101) with any Lender, including any termination
payments and any accrued and unpaid interest thereon (pro rata in accordance
with all such amounts due) and (i) then to the cash collateral account described
in Section 8.12(b) to the extent of any L/C Obligations then outstanding, in
that order.
SECTION 8.14. JUDGMENT CURRENCY. The obligation of the Borrower to pay the
Obligations and the obligation of any such Person to make payments of any other
amounts payable hereunder or pursuant to any other Credit Document in the
currency specified for such payment shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any other currency, except to the extent that such tender or
recovery shall result in the actual receipt by each of the Administrative Agent
and Lenders of the full amount of the particular Permitted Currency expressed to
be payable pursuant to the applicable Credit Document. The Administrative Agent
shall, using all amounts obtained or received from the Borrower pursuant to any
such tender or recovery in payment of principal of and interest on the
Obligations, promptly purchase the applicable currency at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it.
The obligation of the Borrower to make payments in the applicable currency shall
be enforceable as an alternative or additional cause of action solely for the
purpose of recovering in the applicable currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the currency
expressed to be payable pursuant to the applicable Credit Document.
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ARTICLE IX.
THE ADMINISTRATIVE AGENT
SECTION 9.01. APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
designates Wachovia as Administrative Agent to administer all matters concerning
the Loans and to act as herein specified. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such actions
on its behalf under the provisions of this Agreement, the other Credit
Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees.
SECTION 9.02. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The Administrative
Agent shall have no duties or responsibilities except those expressly set forth
in this Agreement and the other Credit Documents. Neither the Administrative
Agent nor any of its respective officers, directors, employees or agents shall
be liable for any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent shall be ministerial and
administrative in nature; the Administrative Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, express or implied, is intended to or shall be so construed as
to impose upon the Administrative Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein.
SECTION 9.03. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
(a) Independently and without reliance upon the Administrative Agent, each
Lender, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the creditworthiness of the
Credit Parties, and, except as expressly provided in this Agreement, the
Administrative Agent shall have any duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or participating in Letters of Credit, or at any time or
times thereafter.
(b) The Administrative Agent shall not be responsible to any Lender for
any recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection herewith
or for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, the Letters of Credit or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Notes, the
Guaranty Agreements, the Letters of Credit or the other
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documents contemplated hereby or thereby, or the financial condition of the
Credit Parties, or the existence or possible existence of any Default or Event
of Default.
SECTION 9.04. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent's acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
SECTION 9.05. RELIANCE BY THE ADMINISTRATIVE AGENT. The Administrative
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate or telecopier message,
order or other documentary, teletransmission or telephone message believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person. The Administrative Agent may consult with legal counsel (including
counsel for any Credit Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 9.06. INDEMNIFICATION OF THE ADMINISTRATIVE AGENT. To the extent
the Administrative Agent is not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify the Administrative Agent,
ratably according to the respective amounts of the Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in accordance with the
aggregate Commitments), in either case, for and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Administrative Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 9.07. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to lend under this Agreement, the Loans made by it,
the Letters of Credit issued by it, and the Notes issued to it, the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender or holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept
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fees and other consideration from the Consolidated Companies for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
SECTION 9.08. HOLDERS OF NOTES. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
SECTION 9.09. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and Borrower and may be removed at any time with
or without cause by the Required Lenders; provided, however, the Administrative
Agent may not resign or be removed until a successor Administrative Agent has
been appointed and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent, with the consent of Borrower so long as no
Default or Event of Default has occurred and is continuing, which consent shall
not be unreasonably withheld or delayed. If no successor Administrative Agent
shall have been so appointed by the Required Lenders with the consent of
Borrower, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank which maintains an office in the
United States, or a commercial bank organized under the laws of the United
States of America or any State thereof, or any Affiliate of such bank.
(b) Upon the acceptance of any appointment as the Administrative Agent,
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Administrative Agent under this Agreement.
SECTION 9.10. NO OTHER DUTIES. Anything herein to the contrary
notwithstanding, none of the syndication agents, documentation agents,
co-agents, book manager, lead manager, arranger, lead arranger or co-arranger
listed on the cover page or signature pages hereof shall have any powers,
duties, liabilities or responsibilities under this Agreement or any of the other
Credit Documents, except in its capacity, as applicable, as the Administrative
Agent, a Lender or the Issuing Lender hereunder.
SECTION 9.11. RELEASE OF GUARANTORS. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Guarantor from its
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obligations under the Guaranty Agreements if such Person ceases to be a Material
Subsidiary as a result of a transaction permitted hereunder. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent's authority to release any Guarantor from its
obligations under the Guaranty Agreements pursuant to this Section 9.11.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. NOTICES.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page (provided the recipients of such notice have been made
specifically aware of the posting of such notice), telecopy, (ii) on the next
Business Day if sent by recognized overnight courier service and (iii) on the
third Business Day following the date sent by certified mail, return receipt
requested. A telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to Borrower: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia Wachovia Bank, National Association
pursuant to Section 6.07: One Wachovia Center, 6th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: Mr. Will ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the address set forth on Schedule 1.1(a)
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued. The Administrative Agent shall provide Borrower with
reasonable notice of any redesignation of its Administrative Agent's
Correspondent from Wachovia Bank, National Association, London Branch.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Borrower and the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that no amendment, waiver or
consent shall (a) waive any of the conditions specified in Section 4.01 or 4.02
without the written consent of each Lender, (b) increase the Commitment of any
Lender or the amount of Loans of any Lender without the written consent of such
Lender, (c) reduce the principal of, or interest on, the Loans or Letters of
Credit or any fees or other amounts due to the Lenders hereunder (or any of
them) without the written consent of each of the Lenders directly affected
thereby; provided that only the consent of the Required Lenders shall be
necessary to amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or Letter of Credit or to reduce any fee payable hereunder,
(d) postpone any date fixed for the payment in respect of principal of, or
interest on, the Loans or Letters of Credit or any fees hereunder without the
written consent of each Lender directly affected thereby, (e) modify Section
3.13 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender, (f) permit any subordination
of the principal or interest on any Loan or Reimbursement Obligations without
the written consent of each Lender, (g) permit any assignment of any of the
rights and obligations of Borrower hereunder (other than as specifically
permitted or contemplated by this Agreement) without the written consent of each
Lender, (h) release Borrower from any of the Obligations without the written
consent of each Lender directly affected thereby, (i) agree to release any
Guarantor from its obligations under any Guaranty Agreement (except as permitted
by this Agreement) without the written consent of each Lender, (j) modify the
definition of "Required Lenders" without the written consent of each Lender, (k)
modify the definition of "Alternative Currency" without the written consent of
each Lender, or (l) modify this Section 10.02 without the written consent of
each Lender. In addition, (i) no amendment, waiver or consent to the provisions
of Article IIA or any other provisions relating to any Letter of Credit shall be
made without the prior written consent of the Issuing Lender and (ii) no
amendment, waiver or consent to the provisions of Section 2.07 or any other
provisions relating to Swing Line Loans shall be made without the prior written
consent of the Swing Line Lender. Notwithstanding the foregoing, (A) no
amendment, waiver or consent shall, unless in writing and
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signed by Borrower and the Administrative Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or under any other Credit Document and
(B) no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
SECTION 10.03. NO WAIVER; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document, and
no course of dealing between any Credit Party and the Administrative Agent, any
Lender or the holder of any Note shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right or remedy hereunder or thereunder. The rights and
remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent, any Lender or the holder of
any Note would otherwise have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document in any case shall entitle
any Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent,
the Lenders or the holder of any Note to any other or further action in any
circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES; INDEMNITY. Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Administrative Agent in the administration (both before and after the execution
hereof and including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Administrative Agent and the Lenders
with respect thereto) of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of, and, after a Default
or Event of Default, refinancing, renegotiation or restructuring of, this
Agreement and the other Credit Documents and the documents and instruments
referred to therein, and any amendment, waiver or consent relating thereto
(including, without limitation, the reasonable fees actually incurred and
disbursements of counsel for the Administrative Agent), and in the case of
enforcement of this Agreement or any Credit Document after an Event of Default,
all such reasonable, out-of-pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and disbursements of counsel),
for the Administrative Agent and the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.06(b), pay and hold the Administrative Agent and the
Lenders harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement, the Notes,
Letters of Credit and any other Credit Documents including any collateral
described therein, or any payments due thereunder, and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such Taxes;
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(iii) indemnify the Administrative Agent and each Lender, and their
respective officers, directors, employees, representatives and agents from, and
hold each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of them
is designated a party thereto) (an "Indemnitee") arising out of or by reason of
any investigation, litigation or other proceeding related to any actual or
proposed use of the proceeds of any of the Loans or Letters of Credit or any
Credit Party's entering into and performing the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct; and
(iv) without limiting the indemnities set forth above, indemnify
each Indemnitee for any and all expenses and costs (including without
limitation, remedial, removal, response, abatement, cleanup, investigative,
closure and monitoring costs), losses, claims (including claims for contribution
or indemnity and including the cost of investigating or defending any claim and
whether or not such claim is ultimately defeated, and whether such claim arose
before, during or after any Credit Party's ownership, operation, possession or
control of its business, property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions, judgments, suits, disbursements,
encumbrances, liens, damages (including without limitation damages for
contamination or destruction of natural resources), penalties and fines of any
kind or nature whatsoever (including without limitation in all cases the
reasonable fees actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that Indemnitee based
upon, arising under or relating to Environmental Laws or any civil penalties or
fines assessed by the U.S. Department of the Treasury's Office of Foreign Assets
Control, based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee under this
Agreement, any other Credit Document or any related documents.
If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF.
(a) In addition to and not in limitation of all rights of offset that
any Lender or other holder of a Note may have under applicable law, each Lender
or other holder of a Note shall, upon the occurrence of any Event of Default and
whether or not such Lender or such holder has made any demand or any Obligations
are matured, have the right to appropriate and apply to the payment of any
Credit Party's Obligations hereunder and under the other Credit Documents, all
deposits of any Credit Party (general or special, time or demand, provisional or
final) then or thereafter held by and other indebtedness or property then or
thereafter owing by such Lender or other holder to any Credit Party, whether or
not related to this Agreement or any transaction hereunder.
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(b) Any amount to be set-off pursuant to clause (a) above shall be
denominated in Dollars and any amount denominated in an Alternative Currency
shall be in an amount equal to the Dollar Amount of such amount at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it; provided that if at the time of any such determination no such
spot exchange rate can reasonably be determined, the Administrative Agent may
use any reasonable method as it deems applicable to determine such rate, any
such determination to be conclusive absent manifest error.
(c) Each Lender and any assignee or participant of such Lender in
accordance with Section 10.06 are hereby authorized by the Borrower to combine
currencies, as deemed necessary by such Person, in order to effect any set-off
pursuant to clause (a) above.
SECTION 10.06. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto,
provided that Borrower may not assign or transfer any of its interest hereunder
without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of any of its
Commitments and the Loans and L/C Obligations at the time owing to it and the
Notes held by it) to any other Lender or any financial institution; provided,
however, that (i) the Administrative Agent and Borrower must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed) unless such assignment is to an Affiliate of the assigning
Lender or, in the case of Borrower, unless an Event of Default has occurred and
is continuing, (ii) the amount of the Commitments or Loans and L/C Obligations
of the assigning Lender subject to each assignment (determined as of the date
the assignment and acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 and in integrals of
$1,000,000, (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a Note
or Notes subject to such assignment and, unless such assignment is to an
Affiliate of such Lender, a processing and recordation fee of $3,500, (iv) no
Lender may make more than two (2) assignments to any Person which is not then a
Lender or affiliate thereof (unless a Default or Event of Default has occurred
and is continuing), (v) the assignee Lender must be an Eligible Assignee, and
(vi) if the assignee Lender is not a United States citizen or resident (or the
assignee Lender is filing as a foreign corporation, partnership, estate or
trust), the assignee Lender delivers the Internal Revenue Service Form W-8BEN or
W-8ECI, as appropriate, or any successor form prescribed by the Internal Revenue
Service, to Borrower and the Administrative Agent, as required by Section
3.06(b)(ii) of this Agreement. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any Lender
or the Administrative Agent in connection with such assignment. From and after
the effective date specified in each
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Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, 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.
Within five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes to the order of such assignee in a principal amount equal to the
applicable Commitments assumed by it pursuant to such Assignment and Acceptance
and new Note or Notes to the assigning Lender in the amount of its retained
Commitment or Commitments. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form attached hereto.
(d) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and Borrower, the option to provide to Borrower all or
any part of any Advance that such Granting Bank would otherwise be obligated to
make to Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Advance, the Granting Bank shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Advance were made by such Granting Bank. 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 remain with the Granting Bank). 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 10.06, any SPC may (i) with
notice to, but without the prior written consent of, Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Advances to the Granting Bank or to any
financial institutions (approved by Borrower and Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Advances and (ii) disclose on a confidential basis any
non-public information relating to its Advances to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This section may not be amended without the written
consent of each applicable SPC.
(e) Each Lender may, without the consent of Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(each a "Participant") in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans
owing to it and the Notes held by it), provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely
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responsible to the other parties hereto for the performance of such obligations,
(iii) the participating bank or other entity shall not be entitled to the
benefit (except through its selling Lender) of the cost protection provisions
contained in Article III of this Agreement, and (iv) Borrower, the
Administrative Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such Lender
shall retain the sole right to enforce the obligations of Borrower relating to
the Loans and to approve any amendment, modification or waiver of any provisions
of this Agreement. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Credit
Document except for those matters specified in clauses (i) through (viii) of the
proviso to Section 10.02.
(f) Any Lender may at any time assign or pledge all or any portion of
its rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank.
(g) If (i) any Taxes referred to in Section 3.06(b) have been levied or
imposed so as to require withholdings or deductions by Borrower and payment by
Borrower of additional amounts to any Lender as a result thereof, or (ii) any
Lender shall make demand for payment of increased costs or reduced rate of
return pursuant to Section 3.09 or any Lender determines that LIBOR is
unascertainable or illegal pursuant to Section 3.07 or Section 3.08, or any
Lender makes a claim for increased costs pursuant to Section 3.09, then and in
such event, upon request from Borrower delivered to such Lender and the
Administrative Agent, such Lender shall assign, in accordance with the
provisions of Section 10.06(c), all of its rights and obligations under this
Agreement and the other Credit Documents to another Lender or another financial
institution selected by Borrower and acceptable to the Administrative Agent,
which acceptance will not be unreasonably withheld or delayed, in consideration
for the payment by such assignee to the Lender of the principal of, and interest
on, the outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Commitment hereunder, together with any and all
other amounts owing to such Lender under any provisions of this Agreement or the
other Credit Documents accrued to the date of such assignment; provided,
however, Lenders subject to this Section 10.06 shall be treated in a
substantially identical manner.
SECTION 10.07. GOVERNING LAW. This Agreement, the Notes, the Letters of
Credit and the other Credit Documents, unless otherwise expressly set forth
therein, shall be governed by, construed and enforced in accordance with the
laws of the State of Georgia, without reference to the conflicts or choice of
law principles thereof.
SECTION 10.08. JURISDICTION AND VENUE.
(a) Jurisdiction. Borrower, the Administrative Agent and the Lenders
hereby irrevocably consent to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, and Atlanta, Georgia (and
any courts from which an appeal from any of such courts must or may be taken),
in any action, claim or other proceeding arising out of any dispute in
connection with this Agreement, the Notes, the Letters of Credit and the other
Credit Documents, any rights or obligations hereunder or thereunder, or the
performance of such
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rights and obligations. Borrower hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement, the Notes, the Letters of Credit or the other Credit Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 10.01. Nothing in this Section 10.08 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against Borrower or its properties
in the courts of any other jurisdictions.
(b) Venue. Borrower hereby irrevocably waives any objection it may have
now or in the future to the laying of venue in the aforesaid jurisdiction in any
action, claim or other proceeding arising out of or in connection with this
Agreement, any other Credit Document or the rights and obligations of the
parties hereunder or thereunder. Borrower irrevocably waives, in connection with
such action, claim or proceeding, any plea or claim that the action, claim or
other proceeding has been brought in an inconvenient forum.
SECTION 10.09. BINDING ARBITRATION; WAIVER OF JURY TRIAL.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement or any
other Credit Document ("Disputes"), between or among parties hereto and to the
other Credit Documents shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive the right
of that party to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class actions, claims
arising from Credit Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Credit
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitations shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding anything foregoing to
the contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within
one-hundred twenty (120) days after such demand. These time limitations may not
be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND BORROWER
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING
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ARBITRATION THEY HAVE IRREVOCABLY, TO THE FULLEST EXTENT PERMITTED BY LAW,
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES, THE LETTERS OF CREDIT OR THE OTHER CREDIT DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Credit
Documents preserve, without diminution, certain remedies that such Persons may
employ or exercise freely, either alone, in conjunction with or during a
Dispute. Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale granted in
the Credit Documents or under Applicable Law or by judicial foreclosure and
sale, including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
SECTION 10.10. REVERSAL OF PAYMENTS. To the extent Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 10.11. INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) Borrower recognizes that, in the event Borrower fails to perform,
observe or discharge any of its obligations or liabilities under this Agreement,
any remedy of law may prove to be inadequate relief to the Lenders. Therefore,
Borrower agrees that the Lenders, at the Lenders' option, shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
(b) The Administrative Agent, the Lenders and Borrower (on behalf of
itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Credit
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
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SECTION 10.12. INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled to protect and enforce its rights pursuant to
this Agreement and its Notes, and it shall not be necessary for any other Lender
to be joined as an additional party in any proceeding for such purpose.
SECTION 10.13. RELEASE OF GUARANTORS. Any Material Subsidiary added as a
Guarantor solely to comply with the proviso in the definition of Material
Subsidiaries, but which does not meet the requirements under clause (i) or
clause (ii) of the definition of Material Subsidiaries shall be released as a
Guarantor (a) upon the written request of Borrower, (b) upon Borrower
demonstrating to the Administrative Agent pro forma compliance with the proviso
in the definition of Material Subsidiaries after giving effect to such release
and (c) provided no Default or Event of Default is continuing or would result
from such release.
SECTION 10.14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 10.15. PATRIOT ACT. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56) (the "Act")
hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.
SECTION 10.16. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date on which all of
the parties hereto shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent
pursuant to Section 10.01 or, in the case of the Lenders, shall have given to
the Administrative Agent written or telecopier notice (actually received) that
the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 3.06(b), 3.09, 3.11, 3.12
and 10.04 hereof shall survive the payment in full of the Notes and all other
Obligations after the Maturity Date. All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this
Agreement, the other Credit Documents, and such other agreements and documents,
the making of the Loans and issuing of Letters of Credit hereunder, and the
execution and delivery of the Notes.
SECTION 10.17. SEVERABILITY. In case any provision in or obligation under
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
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SECTION 10.18. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 10.19. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of the
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
[Signature Pages Follow]
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and to be delivered by their duly authorized officers as of the
day and year first above written.
CHOICEPOINT INC., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[Revolving Credit Agreement - ChoicePoint Inc.]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent
and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
[Revolving Credit Agreement - ChoicePoint Inc.]
SUNTRUST BANK, as Syndication Agent and
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
[Revolving Credit Agreement - ChoicePoint Inc.]
BNP PARIBAS, as Documentation Agent and
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
[Revolving Credit Agreement - ChoicePoint Inc.]
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
[Revolving Credit Agreement - ChoicePoint Inc.]
FLEET NATIONAL BANK, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[Revolving Credit Agreement - ChoicePoint Inc.]
JPMORGAN CHASE BANK, as Lender
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[Revolving Credit Agreement - ChoicePoint Inc.]
REGIONS BANK, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Senior Vice President
[Revolving Credit Agreement - ChoicePoint Inc.]
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS; CONSTRUCTION........................................................ 1
Section 1.01. Definitions............................................................ 1
Section 1.02. Accounting Terms and Determination..................................... 19
Section 1.03. Other Definitional Terms............................................... 19
Section 1.04. Exhibits and Schedules................................................. 19
ARTICLE II. SYNDICATED LOANS AND SWING LINE LOANS........................................... 19
Section 2.01. Description of Revolving Credit Facilities; Use of Proceeds............ 19
Section 2.02. Syndicated Loans....................................................... 20
Section 2.03. Syndicated Notes; Repayment of Principal............................... 21
Section 2.04. Voluntary Reduction of Syndicated Loan Commitments..................... 21
Section 2.05. Increase of Syndicated Loan Commitments................................ 21
Section 2.06. Syndicated Loan Funding Notices........................................ 22
Section 2.07. Swing Line Loans....................................................... 23
ARTICLE IIA. LETTERS OF CREDIT.............................................................. 25
Section 2A.01. L/C Commitment......................................................... 25
Section 2A.02. Procedure for Issuance of Letters of Credit............................ 26
Section 2A.03. Commissions and Other Charges.......................................... 26
Section 2A.04. L/C Participations..................................................... 27
Section 2A.05. Reimbursement Obligation of Borrower................................... 28
Section 2A.06. Obligations Absolute................................................... 28
Section 2A.07. Obligations Absolute................................................... 29
ARTICLE III. GENERAL LOAN TERMS............................................................. 29
Section 3.01. Disbursement of Funds.................................................. 29
Section 3.02. Interest............................................................... 30
Section 3.03. Interest Periods....................................................... 31
Section 3.04. Fees................................................................... 32
Section 3.05. Voluntary Prepayments of Borrowings.................................... 32
Section 3.06. Payments, etc.......................................................... 33
Section 3.07. Interest Rate Not Ascertainable, etc................................... 36
Section 3.08. Illegality............................................................. 36
Section 3.09. Increased Costs........................................................ 36
Section 3.10. Lending Offices........................................................ 38
Section 3.11. Funding Losses......................................................... 39
Section 3.12. Assumptions Concerning Funding of Eurodollar Advances.................. 39
Section 3.13. Apportionment of Payments.............................................. 39
Section 3.14. Sharing of Payments, Etc............................................... 39
Section 3.15. Benefits to Guarantors................................................. 42
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ARTICLE IV. CONDITIONS TO BORROWINGS AND LETTERS OF CREDIT.................................. 43
Section 4.01. Conditions Precedent to Initial Loans and Letters of Credit............ 43
Section 4.02. Conditions to All Loans................................................ 45
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................................... 45
Section 5.01. Corporate Existence; Compliance with Law............................... 45
Section 5.02. Corporate Power; Authorization......................................... 45
Section 5.03. Enforceable Obligations................................................ 46
Section 5.04. No Contractual or Legal Bar............................................ 46
Section 5.05. No Material Litigation or Investigations............................... 46
Section 5.06. Investment Company Act, Etc............................................ 46
Section 5.07. Margin Regulations..................................................... 47
Section 5.08. Compliance With Environmental Laws..................................... 47
Section 5.09. Insurance.............................................................. 47
Section 5.10. No Default............................................................. 47
Section 5.11. No Burdensome Restrictions............................................. 47
Section 5.12. Taxes.................................................................. 48
Section 5.13. Subsidiaries........................................................... 48
Section 5.14. Financial Statements................................................... 48
Section 5.15. ERISA.................................................................. 48
Section 5.16. Possession of Franchises, Licenses, Etc................................ 49
Section 5.17. Patents, Trademarks, Licenses, Etc..................................... 49
Section 5.18. Ownership of Property.................................................. 50
Section 5.19. Financial Condition.................................................... 50
Section 5.20. Labor Matters.......................................................... 50
Section 5.21. Payment or Dividend Restrictions....................................... 50
Section 5.22. Outstanding Indebtedness............................................... 50
Section 5.23. Disclosure............................................................. 51
Section 5.24. OFAC................................................................... 51
ARTICLE VI. AFFIRMATIVE COVENANTS........................................................... 51
Section 6.01. Corporate Existence, Etc............................................... 51
Section 6.02. Compliance with Laws, Etc.............................................. 52
Section 6.03. Payment of Taxes and Claims, Etc....................................... 52
Section 6.04. Keeping of Books....................................................... 52
Section 6.05. Visitation, Inspection, Etc............................................ 52
Section 6.06. Insurance; Maintenance of Properties................................... 53
Section 6.07. Reporting Covenants.................................................... 53
Section 6.08. Financial Covenants.................................................... 57
Section 6.09. Additional Credit Parties.............................................. 57
Section 6.10. Intellectual Property.................................................. 57
ARTICLE VII. NEGATIVE COVENANTS............................................................. 57
Section 7.01. Liens.................................................................. 57
Section 7.02. Guaranties............................................................. 58
Section 7.03. Mergers, Consolidations................................................ 59
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Section 7.04. Asset Sales............................................................ 59
Section 7.05. Investments, Loans, Etc................................................ 60
Section 7.06. Sale and Leaseback Transactions........................................ 61
Section 7.07. Transactions with Affiliates........................................... 61
Section 7.08. ERISA.................................................................. 61
Section 7.09. Additional Negative Pledges............................................ 62
Section 7.10. Changes in Business.................................................... 62
Section 7.11. Limitation on Payment Restrictions Affecting Consolidated Companies.... 63
Section 7.12. Actions Under Certain Documents........................................ 63
Section 7.13. Amendments; Payments and Prepayments of Subordinated Debt.............. 63
Section 7.14. Changes in Fiscal Year................................................. 63
ARTICLE VIII. EVENTS OF DEFAULT............................................................. 64
Section 8.01. Payments............................................................... 64
Section 8.02. Covenants Without Notice............................................... 64
Section 8.03. Other Covenants........................................................ 64
Section 8.04. Representations........................................................ 64
Section 8.05. Non-Payments of Other Indebtedness..................................... 64
Section 8.06. Defaults Under Other Agreements........................................ 64
Section 8.07. Bankruptcy............................................................. 65
Section 8.08. Money Judgment......................................................... 65
Section 8.09. Change in Control of Borrower.......................................... 65
Section 8.10. Default Under Other Credit Documents................................... 66
Section 8.11. Attachments............................................................ 66
Section 8.12. Remedies............................................................... 66
Section 8.13. Crediting of Payments and Proceeds..................................... 67
ARTICLE IX. THE ADMINISTRATIVE AGENT AND THE SYNDICATION AGENT.............................. 68
Section 9.01. Appointment of Administrative Agent.................................... 68
Section 9.02. Nature of Duties of Administrative Agent............................... 68
Section 9.03. Lack of Reliance on the Administrative Agent........................... 68
Section 9.04. Certain Rights of the Administrative Agent............................. 69
Section 9.05. Reliance by the Administrative Agent................................... 69
Section 9.06. Indemnification of the Administrative Agent............................ 69
Section 9.07. The Administrative Agent in its Individual Capacity.................... 69
Section 9.08. Holders of Notes....................................................... 70
Section 9.09. Successor Administrative Agent......................................... 70
Section 9.10. No Other Duties........................................................ 70
Section 9.11. Release of Guarantors.................................................. 70
ARTICLE X. MISCELLANEOUS.................................................................... 71
Section 10.01. Notices................................................................ 71
Section 10.02. Amendments, Etc........................................................ 72
Section 10.03. No Waiver; Remedies Cumulative......................................... 73
Section 10.04. Payment of Expenses, Etc............................................... 73
Section 10.05. Right of Setoff........................................................ 74
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Section 10.06. Benefit of Agreement................................................... 75
Section 10.07. Governing Law.......................................................... 77
Section 10.08. Jurisdiction and Venue................................................. 77
Section 10.09. Binding Arbitration; Waiver of Jury Trial.............................. 78
Section 10.10. Reversal of Payments................................................... 79
Section 10.11. Injunctive Relief; Punitive Damages.................................... 79
Section 10.12. Independent Nature of Lenders' Rights.................................. 80
Section 10.13. Release of Guarantors.................................................. 80
Section 10.14. Counterparts........................................................... 80
Section 10.15. Effectiveness; Survival................................................ 80
Section 10.16. Severability........................................................... 80
Section 10.17. Independence of Covenants.............................................. 81
Section 10.18. Headings Descriptive; Entire Agreement................................. 81
iv