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EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 28, 2003
among
FTI CONSULTING, INC.,
as the Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
The Other Lenders Party Hereto
Arranged By:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................1
1.01 Defined Terms...................................................1
1.02 Other Interpretive Provisions..................................22
1.03 Accounting Terms...............................................23
1.04 Rounding.......................................................23
1.05 References to Agreements and Laws..............................24
1.06 Times of Day...................................................24
1.07 Letter of Credit Amounts.......................................24
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.............................24
2.01 Revolving Loans and Term Loan..................................24
2.02 Borrowings, Conversions and Continuations of Loans.............25
2.03 Letters of Credit..............................................26
2.04 Swing Line Loans...............................................31
2.05 Prepayments....................................................31
2.06 Termination or Reduction of Aggregate Revolving Commitments....31
2.07 Repayment of Loans.............................................31
2.08 Interest.......................................................31
2.09 Fees...........................................................31
2.10 Computation of Interest and Fees...............................31
2.11 Evidence of Debt...............................................31
2.12 Payments Generally.............................................31
2.13 Sharing of Payments............................................31
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...........................31
3.01 Taxes..........................................................31
3.02 Illegality.....................................................31
3.03 Inability to Determine Rates...................................31
3.04 Increased Cost and Reduced Return; Capital Adequacy............31
3.05 Funding Losses.................................................31
3.06 Matters Applicable to all Requests for Compensation............31
3.07 Survival.......................................................31
ARTICLE IV GUARANTY..........................................................31
4.01 The Guaranty...................................................31
4.02 Obligations Unconditional......................................31
4.03 Reinstatement..................................................31
4.04 Certain Additional Waivers.....................................31
4.05 Remedies.......................................................31
4.06 Rights of Contribution.........................................31
4.07 Guarantee of Payment; Continuing Guarantee.....................31
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..........................31
5.01 Conditions of Initial Credit Extension.........................31
5.02 Conditions to all Credit Extensions............................31
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................31
6.01 Existence, Qualification and Power.............................31
6.02 Authorization; No Contravention................................31
6.03 Governmental Authorization; Other Consents.....................31
6.04 Binding Effect.................................................31
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6.05 Financial Statements; No Material Adverse Effect...............31
6.06 Litigation.....................................................31
6.07 No Default.....................................................31
6.08 Ownership of Property; Liens...................................31
6.09 Environmental Compliance.......................................31
6.10 Insurance......................................................31
6.11 Taxes..........................................................31
6.12 ERISA Compliance...............................................31
6.13 Subsidiaries...................................................31
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act............................................31
6.15 Disclosure.....................................................31
6.16 Compliance with Laws...........................................31
6.17 Intellectual Property; Licenses, Etc...........................31
6.18 Solvency.......................................................31
6.19 Perfection of Security Interests in the Collateral.............31
6.20 Business Locations.............................................31
6.21 Brokers' Fees..................................................31
6.22 Labor Matters..................................................31
6.23 Representations and Warranties from Purchase Agreement.........31
6.24 Tax Shelter Regulations........................................31
ARTICLE VII AFFIRMATIVE COVENANTS............................................31
7.01 Financial Statements...........................................31
7.02 Certificates; Other Information................................31
7.03 Notices........................................................31
7.04 Payment of Obligations.........................................31
7.05 Preservation of Existence, Etc.................................31
7.06 Maintenance of Properties......................................31
7.07 Maintenance of Insurance.......................................31
7.08 Compliance with Laws...........................................31
7.09 Books and Records..............................................31
7.10 Inspection Rights..............................................31
7.11 Use of Proceeds................................................31
7.12 Additional Subsidiaries........................................31
7.13 ERISA Compliance...............................................31
7.14 Pledged Assets.................................................31
ARTICLE VIII NEGATIVE COVENANTS..............................................31
8.01 Liens..........................................................31
8.02 Investments....................................................31
8.03 Indebtedness...................................................31
8.04 Fundamental Changes............................................31
8.05 Dispositions...................................................31
8.06 Restricted Payments............................................31
8.07 Change in Nature of Business...................................31
8.08 Transactions with Affiliates and Insiders......................31
8.09 Burdensome Agreements..........................................31
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8.10 Use of Proceeds................................................31
8.11 Financial Covenants............................................31
8.12 [Reserved].....................................................31
8.13 Organization Documents; Fiscal Year; Legal Name, State of
Formation and Form of Entity...................................31
8.14 Ownership of Subsidiaries; Limitations on Parent...............31
8.15 Sale Leasebacks................................................31
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES....................................31
9.01 Events of Default..............................................31
9.02 Remedies Upon Event of Default.................................31
9.03 Application of Funds...........................................31
ARTICLE X ADMINISTRATIVE AGENT...............................................31
10.01 Appointment and Authorization of Administrative Agent..........31
10.02 Delegation of Duties...........................................31
10.03 Liability of Administrative Agent..............................31
10.04 Reliance by Administrative Agent...............................31
10.05 Notice of Default..............................................31
10.06 Credit Decision; Disclosure of Information by Administrative
Agent..........................................................31
10.07 Indemnification of Administrative Agent........................31
10.08 Administrative Agent in its Individual Capacity................31
10.09 Successor Administrative Agent.................................31
10.10 Administrative Agent May File Proofs of Claim..................31
10.11 Collateral and Guaranty Matters................................31
10.12 Other Agents; Arrangers and Managers...........................31
ARTICLE XI MISCELLANEOUS.....................................................31
11.01 Amendments, Etc................................................31
11.2 Notices and Other Communications; Facsimile Copies.............31
11.03 No Waiver; Cumulative Remedies.................................31
11.04 Attorney Costs, Expenses and Taxes.............................31
11.05 Indemnification by the Borrower................................31
11.06 Payments Set Aside.............................................31
11.07 Successors and Assigns.........................................31
11.08 Confidentiality................................................31
11.09 Set-off........................................................31
11.10 Interest Rate Limitation.......................................31
11.11 Counterparts...................................................31
11.12 Integration....................................................31
11.13 Survival of Representations and Warranties.....................31
11.14 Severability...................................................31
11.15 Tax Forms......................................................31
11.16 Replacement of Lenders.........................................31
11.17 Release of Collateral and Guarantees...........................31
11.18 Governing Law..................................................31
11.19 Waiver of Right to Trial by Jury...............................31
11.20 USA Patriot Act Notice.........................................31
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SCHEDULES
2.01 Commitments and Pro Rata Shares
2.03 Existing Letters of Credit
6.10 Insurance
6.13 Subsidiaries
6.17 IP Rights
6.20(a)Locations of Real Property
6.20(b)Locations of Tangible Personal Property
6.20(c)Location of Chief Executive Office
6.20(e)Changes in Name, State of Formation and Structure
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B Form of Swing Line Loan Notice
C-1 Form of Revolving Note
C-2 Form of Swing Line Note
C-3 Form of Tranche A Term Note
C-4 Form of Tranche B Term Note
C-5 Form of Tranche C Term Note
D Form of Compliance Certificate
E Form of Assignment and Assumption
F Form of Joinder Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
November 28, 2003 among FTI CONSULTING, INC., a Maryland corporation (the
"Borrower"), the Guarantors (defined herein), the Lenders (defined herein) and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
Pursuant to that Credit Agreement (as amended, modified and
supplemented, the "Existing Credit Agreement") dated as of August 30, 2002 among
the Borrower, the Subsidiaries of the Borrower identified therein, the lenders
identified therein and Bank of America, N.A., as administrative agent, the
lenders party thereto agreed to provide $200 million in credit facilities to the
Borrower. The Borrower has requested that the credit facilities provided
pursuant to the Existing Credit Agreement be amended and restated on the terms
and conditions set forth herein. The Lenders have agreed to the Borrower's
request and this Agreement is given in amendment to, restatement of and
substitution for the Existing Credit Agreement.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
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As used in this Agreement, the following terms shall have the meanings
set forth below:
"Acquired Company" means certain of the assets of the Sellers as
identified in the Transaction Documents.
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified. "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto. Without
limiting the generality of the foregoing, a Person shall be deemed to be
Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power for the election of directors, managing general partners or the
equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in effect
on the Closing Date is ONE HUNDRED MILLION DOLLARS ($100,000,000).
"Agreement" means this Credit Agreement, as amended, modified,
supplemented and extended from time to time.
"Applicable Rate" means the following percentages per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(b):
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Pricing Consolidated Commitment Letter of Credit Fee and
Tier Leverage Ratio Fee Eurodollar Rate Loans Base Rate Loans
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1 > 1.5:1.0 0.375% 2.00% 0.50%
-
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2 > 1.0:1.0 but < 1.5:1.0 0.375% 1.75% 0.25%
-
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3 > 0.5:1.0 but < 1.0:1.0 0.250% 1.50% 0.00%
-
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4 < 0.5:1.0 0.250% 1.25% 0.00%
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Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective five (5) Business Days
immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Tier 1 shall
apply as of the date five (5) Business Days after the date on which such
Compliance Certificate was required to have been delivered. The Applicable Rate
in effect from the Closing Date through the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section
7.02(b) for the fiscal quarter ending March 31, 2004 shall be determined based
upon Pricing Tier 1.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such
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date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation,
the capitalized amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease and (c)
in respect of any Securitization Transaction of any Person, the outstanding
principal amount of such financing, after taking into account reserve accounts
and making appropriate adjustments, determined by the Administrative Agent in
its reasonable judgment.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2002, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments,
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the "prime rate" announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Base Rate Revolving Loan" means a Revolving Loan that bears interest
based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Borrower and its Subsidiaries at such time.
"Capital Lease" means, as applied to any Person, any lease of any
Property by that Person as lessee which, in accordance with GAAP, is required to
be accounted for as a capital lease on the balance sheet of that Person.
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"Capital Stock" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing or having an
auction date within six months of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) Investments, classified in accordance with GAAP as
current assets, in money market mutual funds (as defined by Rule 2(a)-7 of the
Investment Company Act of 1940) registered under the Investment Company Act of
1940, as amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and which have the highest credit rating
by any two of S&P, ▇▇▇▇▇'▇ and ▇▇▇▇▇ Ratings Services, and (f) Investments in
private placements which (i) seek to preserve principal, (ii) maintain a high
degree of liquidity, (iii) invest in a diversified group of money market
instruments and other short-term obligations, in each case which have the
highest credit rating by any two of S&P, ▇▇▇▇▇'▇ and Fitch Ratings Services, and
(iv) generally maintain a dollar-weighted average portfolio maturity of 90 days
or less, although the average portfolio maturity may extend to 120 days in the
event of material redemption activity.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all Capital Stock that such
person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of thirty percent (30%) of the
Capital Stock of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully
diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
or
4
(b) during any period of 24 consecutive months, a majority of
the members of the board of directors or other equivalent governing body
of the Borrower cease to be composed of individuals (i) who were members
of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one
or more directors by any person or group other than a solicitation for
the election of one or more directors by or on behalf of the board of
directors).
"Closing Date" means the date hereof.
"Collateral" means a collective reference to all real and personal
Property with respect to which Liens in favor of the Administrative Agent are
purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement and such other security documents as may be
executed and delivered by the Loan Parties pursuant to the terms of Section
7.14.
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender, the Tranche A Term Loan Commitment of such Lender, the Tranche B Term
Loan Commitment of such Lender and/or the Tranche C Term Loan Commitment of such
Lender.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Adjusted EBITDA" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to the sum of (i)
Consolidated EBITDA for such period minus (ii) Consolidated Capital Expenditures
for such period minus (iii) Consolidated Cash Taxes for such period, all as
determined in accordance with GAAP.
"Consolidated Capital Expenditures" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, all capital expenditures,
as determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include (a) expenditures made with proceeds of
any Involuntary Disposition to the extent such expenditures are used to purchase
Property that is the same as or similar to the Property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.
"Consolidated Cash Taxes" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the aggregate of all taxes, as
determined in accordance with GAAP, to the extent the same are paid in cash
during such period.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b)
the provision for federal, state, local and foreign income taxes payable by the
Borrower and its
5
Subsidiaries for such period and (c) the amount of depreciation and amortization
expense for such period, all as determined in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Adjusted EBITDA for the period of
the four fiscal quarters most recently ended for which the Borrower has
delivered financial statements pursuant to Section 7.01(a) or (b) to (b)
Consolidated Fixed Charges for the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).
"Consolidated Fixed Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the
cash portion of Consolidated Interest Charges for such period plus (ii)
Consolidated Scheduled Funded Debt Payments for such period plus (iii)
Restricted Payments for such period plus (iv) earn-out payments for such period,
all as determined in accordance with GAAP.
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to the sum of (i)
all interest, premium payments, debt discount, fees, charges and related
expenses of the Borrower and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, and (ii) the portion of rent expense of the Borrower and its
Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended for which the Borrower has delivered financial statements pursuant to
Section 7.01(a) or (b).
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary losses and
excluding the effects of FAS 142) for that period.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means for any period for
the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all
scheduled payments of principal on Consolidated Funded Indebtedness, as
determined in accordance with GAAP, and (b) all prepayments of Indebtedness
permitted under Section 8.03(b), (e), (f), (g) or (h) unless such prepayment is
made within 90 days of the date such Indebtedness is incurred or assumed or
unless such prepayment is in connection with a refunding or refinancing of such
Indebtedness (to the extent such refunding or refinancing is permitted under
Section 8.03). For purposes of this definition, "scheduled payments of
principal" (a) shall be determined without giving effect to any reduction of
such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period, (b) shall be deemed to
include the Attributable Indebtedness in respect of capital leases and Synthetic
Leases and (c) shall not include any voluntary prepayments or mandatory
prepayments required pursuant to Section 2.05.
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"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debt Issuance" means the issuance by the Borrower or any Subsidiary of
any Indebtedness other than Indebtedness permitted under Section 8.03.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any Property
by the Borrower or any Subsidiary (including the Capital Stock of any
Subsidiary), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (i) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business of the
Borrower and its Subsidiaries, (ii) the sale, lease, license, transfer or other
disposition of machinery and equipment no longer used or useful in the conduct
of business of the Borrower and its Subsidiaries, (iii) any sale, lease,
license, transfer or other disposition of Property by the Borrower or any
Subsidiary to any Loan Party, provided that the Loan Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Administrative Agent may request so as to cause the Loan Parties to be in
compliance with the terms of Section 7.14 after giving effect to such
transaction, (iv) any Involuntary Disposition by the Borrower or any Subsidiary,
(v) any Disposition by the Borrower or any Subsidiary constituting a Permitted
Investment, (vi) any sale, lease, license, transfer or other disposition of
Property by any Foreign Subsidiary to another Foreign Subsidiary and (vii) the
sale of delinquent receivables in the ordinary course of business in connection
with the collection or compromise thereof.
"Dollar" and "$" mean lawful money of the United States.
7
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 11.07(g).
"Environmental Laws" means any and all federal, state, local, foreign
and other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Issuance" means any issuance by the Borrower to any Person of
shares of its Capital Stock, other than (a) any issuance of shares of its
Capital Stock pursuant to the exercise of options or warrants, (b) any issuance
of shares of its Capital Stock pursuant to the conversion of any debt securities
to equity or the conversion of any class equity securities to any other class of
equity securities, (c) any issuance of options or warrants relating to its
Capital Stock, (d) any issuance by the Borrower of shares of its Capital Stock
as consideration for a Permitted Acquisition and (e) any stock grant to an
employee of the Borrower or any Subsidiary under a stock option plan of the
Borrower. The term "Equity Issuance" shall not be deemed to include any
Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o)
of the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Base Rate" means, for any Interest Period with respect to
any Eurodollar Rate Loan:
8
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars of an amount equal to the principal amount of such Eurodollar
Rate Loan (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to
be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate for
such Eurodollar Rate Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest
Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.01.
"Excluded Property" means, with respect to any Loan Party, including any
Person that becomes a Loan Party after the Closing Date as contemplated by
Section 7.12, (a) any owned real or personal Property which is located outside
of the United States unless requested by the Administrative Agent or the
Required Lenders, (b) any personal Property (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (i)
governed by the Uniform Commercial Code or (ii) effected by appropriate evidence
of the Lien being filed in either the United States Copyright Office or the
United States Patent and Trademark Office, unless requested by the
Administrative Agent or the Required Lenders, (c) any Property which, subject to
the terms of Section 8.09, is subject to a Lien permitted under Section 8.01(b),
9
(i) or (p) pursuant to documents which prohibit such Loan Party from granting
any other Liens in such Property and (d) any lease, license or other contract if
the grant of a Lien in such lease, license or contract in the manner
contemplated by the Loan Documents is prohibited by the terms of such lease,
license or contract and would result in the termination of such lease, license
or contract, but only to the extent that (i) after reasonable efforts, consent
from the relevant party or parties has not been obtained and (ii) any such
prohibition could not be rendered ineffective pursuant to the UCC or any other
applicable law (including Debtor Relief Laws) or principles of equity.
"Existing Credit Agreement' has the meaning set forth in the Recitals
hereto.
"Existing Letters of Credit" means the letters of credit outstanding on
the Closing Date and identified on Schedule 2.03.
"Existing Tranche A Term Loan" means the "Tranche A Term Loan" under,
and as defined in, the Existing Credit Agreement as in effect immediately prior
to the Closing Date.
"Facilities" means, at any time, a collective reference to the
facilities and real properties owned, leased or operated by the Borrower or any
Subsidiary.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement dated October 15, 2003 among the
Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Funded Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or
long-term (including the Obligations) and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all purchase money Indebtedness;
(c) the maximum amount available to be drawn under letters of
credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds, repurchase agreements and similar instruments;
10
(d) all obligations in respect of the deferred purchase price
of Property or services (other than trade accounts payable in the
ordinary course of business);
(e) the Attributable Indebtedness of capital leases and
Synthetic Leases;
(f) the Attributable Indebtedness of Securitization
Transactions;
(g) all preferred stock or other equity interests providing
for mandatory redemptions, sinking fund or like payments prior to the
Maturity Date for the Term Loan;
(h) all Funded Indebtedness of others secured by (or for which
the holder of such Funded Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed;
provided, that the amount of such Funded Indebtedness shall be limited
to the lesser of (A) the principal amount of such Funded Indebtedness or
(B) the fair market value of the Property which is subject to such Lien;
(i) all Guarantees with respect to Indebtedness of the types
specified in clauses (a) through (h) above of another Person; and
(j) all Indebtedness of the types referred to in clauses (a)
through (i) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company)
in which such Person is a general partner or joint venturer, except to
the extent that Indebtedness is expressly made non-recourse to such
Person.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or
11
portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV hereof.
"Guarantors" means each Person identified as a "Guarantor" on the
signature pages to this Agreement and each other Person that joins as a
Guarantor pursuant to Section 7.12, together with their successors and permitted
assigns.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) and (b) above of any other Person;
and
(d) all Indebtedness of the types referred to in clauses (a)
through (c) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company)
in which such Person is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the
last day of each Interest Period applicable to such Eurodollar Rate Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on
a day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
12
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the
Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Involuntary Disposition" means any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any Property of the
Borrower or any Subsidiary.
"IP Rights" has the meaning set forth in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"ISP98" has the meaning set forth in Section 2.03(h).
"Joinder Agreement" means a joinder agreement substantially in the form
of Exhibit F executed and delivered by a Domestic Subsidiary in accordance with
the provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
13
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP98, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn.
"Lender" means each of the Persons identified as a "Lender" on the
signature pages hereto and their successors and assigns and, as the context
requires, includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty (30)
days prior to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Revolving Commitments and $20,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan, Swing Line Loan, Tranche A Term
Loan, Tranche B Term Loan or Tranche C Term Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application, each Joinder Agreement, the Collateral
Documents, each Request for Credit Extension, each Compliance Certificate, the
Fee Letter and each other document, instrument or agreement from time to time
executed by the Borrower or any of its Subsidiaries or any Responsible Officer
thereof and delivered in connection with this Agreement.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans or
the Term Loan, (b) a conversion of Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
14
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Borrower and its Subsidiaries taken as a whole to perform their
obligations under the Loan Documents; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.
"Maturity Date" means November 28, 2008.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Borrower or any Subsidiary in respect of any
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition, net of
(a) direct costs incurred in connection therewith (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c) in the case
of any Disposition, the amount necessary to retire any Indebtedness secured by a
Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the
related Property; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by the Borrower or any
Subsidiary in any Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition.
"Note" or "Notes" means the Revolving Notes, the Swing Line Note, the
Tranche A Term Notes, the Tranche B Term Notes and/or the Tranche C Term Notes,
individually or collectively, as appropriate.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding. The foregoing
shall also include any Swap Contract and any Treasury Management Agreement
between any Loan Party and any Lender or Affiliate of a Lender.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to any Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date,
15
the amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Participant" has the meaning specified in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means Investments consisting of an Acquisition
by the Borrower or any Subsidiary of the Borrower, provided that (i) the
Property acquired (or the Property of the Person acquired) in such Acquisition
is used or useful in the same or a similar line of business as the Borrower and
its Subsidiaries were engaged in on the Closing Date (or any reasonable
extensions or expansions thereof), (ii) the Administrative Agent shall have
received all items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section 7.12 and/or Section
7.14, (iii) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iv) the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis,
the Loan Parties would be in compliance with the financial covenants set forth
in Section 8.11 as of the most recent fiscal quarter for which the Borrower has
delivered financial statements pursuant to Section 7.01(a) or (b), (v) the
representations and warranties made by the Loan Parties in any Loan Document
shall be true and correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vi) if such
transaction involves the purchase of an interest in a partnership between the
Borrower (or a Subsidiary of the Borrower) as a general partner and entities
unaffiliated with the Borrower or such Subsidiary as the other partners, such
transaction shall be effected by having such equity interest acquired by a
corporate holding company directly or indirectly wholly-owned by the Borrower
newly formed for the sole purpose of effecting such transaction, (vii)
immediately after giving effect to such Acquisition, there shall be at least
$10,000,000 of availability existing under the Aggregate Revolving Commitments,
(viii) the aggregate consideration (including cash and non-cash consideration,
any assumption of Indebtedness and any earn-out payments, but excluding
consideration consisting of any Capital Stock of the Borrower issued to the
seller of the Capital Stock or Property acquired in such Acquisition) paid by
the Borrower or any Subsidiary for any such Acquisition occurring after the
Closing Date shall not exceed $50,000,000, and (ix) the aggregate consideration
(including cash and non-cash consideration, any assumption of Indebtedness and
any earn-out payments, but excluding consideration consisting of any Capital
Stock of the Borrower issued to the seller of the Capital Stock or Property
acquired in such Acquisition) paid by the Borrower or any Subsidiary for all
such Acquisitions occurring after the Closing Date shall not exceed $75,000,000,
provided that such $75,000,000 limit shall automatically be permanently
increased to $100,000,000 on the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 7.02(b) which
demonstrates that the Consolidated Leverage Ratio as of the end of the two most
recently ended fiscal quarters is less than 1.50:1.0.
16
"Permitted Disposition" means the sale or other disposition of the
Borrower's litigation graphics and jury consulting business.
"Permitted Investments" means, at any time, Investments by the Borrower
and its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of
the Borrower and its Subsidiaries permitted to exist at such time pursuant to
the terms of Section 8.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pledge Agreement" means the pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties,
as amended, modified, restated or supplemented from time to time.
"Pro Forma Basis" means, for purposes of calculating the Consolidated
Leverage Ratio (including for purposes of determining the Applicable Rate) and
the Consolidated Net Worth, that any Disposition, Involuntary Disposition,
Acquisition or Restricted Payment shall be deemed to have occurred as of the
first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b). In connection with the foregoing, (a) with
respect to any Disposition or Involuntary Disposition, (i) income statement and
cash flow statement items (whether positive or negative) attributable to the
Property disposed of shall be excluded to the extent relating to any period
occurring prior to the date of such transaction and (ii) Indebtedness which is
retired shall be excluded and deemed to have been retired as of the first day of
the applicable period and (b) with respect to any Acquisition, (i) income
statement items attributable to the Person or Property acquired shall be
included to the extent relating to any period applicable in such calculations to
the extent (A) such items are not otherwise included in such income statement
items for the Borrower and its Subsidiaries in accordance with GAAP or in
accordance with any defined terms set forth in Section 1.1 and (B) such items
are supported by financial statements or other information reasonably
satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or
assumed by the Borrower or any Subsidiary (including the Person or Property
acquired) in connection with such transaction and any Indebtedness of the Person
or Property acquired which is not retired in connection with such transaction
(A) shall be deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula rate, shall have
an implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b) after giving effect to the applicable transaction on a
Pro Forma Basis.
"Pro Forma Statements" has the meaning specified in Section 5.01(g).
"Pro Rata Share" means, as to each Lender at any time, (a) with respect
to such Lender's Revolving Commitment at any time, a fraction (expressed as a
percentage, carried out to the ninth
17
decimal place), the numerator of which is the amount of the Revolving Commitment
of such Lender at such time and the denominator of which is the amount of the
Aggregate Revolving Commitments at such time; provided that if the commitment of
each Lender to make Revolving Loans and the obligation of the L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to Section 9.02, then the
Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of
such Lender immediately prior to such termination and after giving effect to any
subsequent assignments made pursuant to the terms hereof, (b) with respect to
such Lender's outstanding Tranche A Term Loan at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which
is the principal amount of the Tranche A Term Loan held by such Lender at such
time and the denominator of which is the aggregate principal amount of the
Tranche A Term Loan at such time, (c) with respect to such Lender's outstanding
Tranche B Term Loan at any time, a fraction (expressed as a percentage, carried
out to the ninth decimal place), the numerator of which is the principal amount
of the Tranche B Term Loan held by such Lender at such time and the denominator
of which is the aggregate principal amount of the Tranche B Term Loan at such
time and (d) with respect to such Lender's outstanding Tranche C Term Loan at
any time, a fraction (expressed as a percentage, carried out to the ninth
decimal place), the numerator of which is the principal amount of the Tranche C
Term Loan held by such Lender at such time and the denominator of which is the
aggregate principal amount of the Tranche C Term Loan at such time. The initial
Pro Rata Share of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"Property" means any interest of any kind in any property or asset,
whether real, personal or mixed, or tangible or intangible.
"Purchase Agreement" means the Asset Purchase Agreement dated as of
September 25, 2003 among the Borrower, LI Acquisition Company, LLC and the
Sellers.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the thirty-day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a) the Revolving Commitments and the
outstanding Term Loan or (b) if the Revolving Commitments have been terminated,
the outstanding Loans, L/C Obligations, Swing Line Loans and participations
therein. The Revolving Commitments of, and the outstanding Term Loan held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president or
chief financial officer of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Capital Stock of the
Borrower or any Subsidiary, or any payment
18
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such Capital Stock or of any
option, warrant or other right to acquire any such Capital Stock.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to the Borrower or
any Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Borrower or such Subsidiary shall sell or transfer any Property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such Property or other Property that it
intends to use for substantially the same purpose or purposes as the Property
being sold or transferred.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Transaction" means any financing transaction or series
of financing transactions (including factoring arrangements) pursuant to which
the Borrower or any Subsidiary may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose
subsidiary or affiliate of the Borrower.
"Security Agreement" means the security agreement dated as of the
Closing Date executed in favor of the Administrative Agent by each of the Loan
Parties, as amended, modified, restated or supplemented from time to time.
"Seller" means Nextera Enterprises, Inc., Lexecon Inc., CE Acquisition
Corp. and ERG Acquisition Corp.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities
19
at any time, it is intended that such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line
Loans pursuant to Section 2.04(b), which, if in writing, shall be substantially
in the form of Exhibit B.
"Swing Line Note" has the meaning specified in Section 2.11(a).
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed
20
money indebtedness for tax purposes but is classified as an operating lease or
does not otherwise appear on the balance sheet under GAAP.
"Threshold Amount" means $5,000,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Term Loans" means the Tranche A Term Loans, the Tranche B Term Loans
and the Tranche C Term Loans.
"Tranche A Term Loan" has the meaning specified in Section 2.01(b).
"Tranche A Term Loan Commitment" means, as to each Lender, its
obligation to make its portion of the Tranche A Term Loan to the Borrower
pursuant to Section 2.01(b), in the principal amount set forth opposite such
Lender's name on Schedule 2.01. The aggregate principal amount of the Tranche A
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is
EIGHTEEN MILLION NINE HUNDRED FIFTY-EIGHT THOUSAND THREE HUNDRED THIRTY-FOUR
DOLLARS ($18,958,334).
"Tranche A Term Note" has the meaning specified in Section 2.11(a).
"Tranche B Term Loan" has the meaning specified in Section 2.01(c).
"Tranche B Term Loan Commitment" means, as to each Lender, its
obligation to make its portion of the Tranche B Term Loan to the Borrower
pursuant to Section 2.01(c), in the principal amount set forth opposite such
Lender's name on Schedule 2.01. The aggregate principal amount of the Tranche B
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is
ONE MILLION NINE HUNDRED TWENTY THOUSAND EIGHT HUNDRED FIFTY-FOUR AND 50/100
DOLLARS ($1,920,854.50).
"Tranche B Term Note" has the meaning specified in Section 2.11(a).
"Tranche C Term Loan" has the meaning specified in Section 2.01(d).
"Tranche C Term Loan Commitment" means, as to each Lender, its
obligation to make its portion of the Tranche C Term Loan to the Borrower
pursuant to Section 2.01(d), in the principal amount set forth opposite such
Lender's name on Schedule 2.01. The aggregate principal amount of the Tranche C
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is
ONE HUNDRED FOUR MILLION ONE HUNDRED TWENTY THOUSAND EIGHT HUNDRED ELEVEN AND
50/100 DOLLARS ($104,120,811.50).
"Tranche C Term Note" has the meaning specified in Section 2.11(a).
"Transaction" means the acquisition by the Borrower of the Acquired
Company.
"Transaction Documents" means the Purchase Agreement and all other
documents, agreements and instruments delivered in connection with the
Transaction.
"Treasury Management Agreements" means any and all agreements governing
the provision of treasury or cash management services, including, without
limitation, deposit accounts, funds transfer,
21
automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services.
"Type" means, with respect to any Loan, its character as a Base Rate
Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Internal
Revenue Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock
is at the time owned by the Borrower directly or indirectly through other
Persons 100% of whose Capital Stock is at the time owned, directly or
indirectly, by the Borrower.
1.02 Other Interpretive Provisions.
-----------------------------
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Loan
Document shall refer to such Loan Document as a whole and not to
any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule
references are to the Loan Document in which such reference
appears.
(iii) The term "including" is by way of example and
not limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including;" the words "to" and "until" each mean "to but excluding;" and
the word "through" means "to and including."
22
(d) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
---------------
(a) Except as otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease Obligations
or the implied interest component of any Synthetic Lease Obligations shall be
made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease Obligations.
(b) The Borrower will provide a written summary of material changes
in GAAP and in the consistent application thereof with each annual and quarterly
Compliance Certificate delivered in accordance with Section 7.02(b). If at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of the Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and
agree that:
(i) all calculations of the Consolidated Leverage Ratio for
purposes of determining compliance with Section 8.11(a) and determining
the Applicable Rate shall be made on a Pro Forma Basis;
(ii) all calculations of the Consolidated Net Worth for
purposes of determining compliance with Section 8.11(b) shall be made on
a Pro Forma Basis; and
(iii) all calculations of the Consolidated Fixed Charge Coverage
Ratio for purposes of determining compliance with Section 8.11(c) shall
be made on a historical basis (i.e., not on a Pro Forma Basis).
1.04 Rounding.
--------
Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result
to one place more than the number of places by
23
which such ratio is expressed herein and rounding the result up
or down to the nearest number (with a rounding-up if there is no
nearest number).
1.05 References to Agreements and Laws.
---------------------------------
Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day.
------------
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
------------------------
Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans and Term Loan.
-----------------------------
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Borrower in Dollars from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Revolving Commitment. Within the limits of
each Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein, provided,
however, all Borrowings of Revolving Loans made on the Closing Date shall be
made as Base Rate Loans.
24
(b) Tranche A Term Loan. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make its portion of a term loan
(the "Tranche A Term Loan") to the Borrower on the Closing Date in an amount not
to exceed such Lender's Tranche A Term Loan Commitment. Amounts repaid on the
Tranche A Term Loan may not be reborrowed. The Tranche A Term Loan may consist
of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided that, notwithstanding any provision in this Agreement or any other Loan
Document to the contrary, the Borrowing of the Tranche A Term Loan made on the
Closing Date shall be made as (i) with respect to that portion of the Tranche A
Term Loan that corresponds to the portion, if any, of the Existing Tranche A
Term Loan with an "Interest Period" (as defined in the Existing Credit Agreement
immediately prior to the Closing Date) expiring on the Closing Date, as a
Eurodollar Rate Loan with an Interest Period of one month and (ii) with respect
to the portion of the Tranche A Term Loan that corresponds to the portion of the
Existing Tranche A Term Loan with an "Interest Period" (as defined in the
Existing Credit Agreement immediately prior to the Closing Date) expiring after
the Closing Date, as a Eurodollar Rate Loan with (A) an Interest Period equal to
the remaining term of the "Interest Period" (as defined in the Existing Credit
Agreement immediately prior to the Closing Date) applicable to such portion of
the Existing Tranche A Term Loan immediately prior to the Closing Date and (B) a
Eurodollar Rate equal to the "Eurodollar Rate" (as defined in the Existing
Credit Agreement immediately prior to the Closing Date) applicable to such
portion of the Existing Tranche A Term Loan immediately prior to the Closing
Date.
(c) Tranche B Term Loan. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make its portion of a term loan
(the "Tranche B Term Loan") to the Borrower on the Closing Date in an amount not
to exceed such Lender's Tranche B Term Loan Commitment. Amounts repaid on the
Tranche B Term Loan may not be reborrowed. The Tranche B Term Loan may consist
of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, the Borrowing of the Tranche B Term Loan made on the Closing
Date shall be made as Base Rate Loans.
(d) Tranche C Term Loan. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make its portion of a term loan
(the "Tranche C Term Loan") to the Borrower on the Closing Date in an amount not
to exceed such Lender's Tranche C Term Loan Commitment. Amounts repaid on the
Tranche C Term Loan may not be reborrowed. The Tranche C Term Loan may consist
of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, the Borrowing of the Tranche C Term Loan made on the Closing
Date shall be made as Base Rate Loans.
2.02 Borrowings, Conversions and Continuations of Loans.
--------------------------------------------------
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
25
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is
the initial Credit Extension, Section 5.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Borrowing of Revolving Loans, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, and second, to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may
be continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders, and the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted immediately to
Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Loans upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than (i) eight Interest Periods in effect with respect
to Revolving Loans, (ii) eight Interest Periods in effect with respect to the
Tranche A Term Loan, (iii) eight Interest Periods in effect with respect to the
Tranche B Term Loan and (iv) eight Interest Periods in effect with respect to
the Tranche C Term Loan.
2.03 Letters of Credit.
-----------------
26
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.03, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit in Dollars for the
account of the Borrower or any of its Subsidiaries, and to amend or
renew Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower; provided that the L/C
Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Total Revolving Outstandings would exceed the
Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender's Pro
Rata Share of the Outstanding Amount of all Swing Line Loans would
exceed such Lender's Revolving Commitment or (z) the Outstanding Amount
of the L/C Obligations would exceed the Letter of Credit Sublimit.
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower's ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to
such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry
date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal, unless
the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount
less than $100,000, in the case of a commercial Letter of Credit,
or $500,000, in the case of a standby Letter of Credit, or is to
be denominated in a currency other than Dollars.
27
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue or
amend any Letter of Credit if the L/C Issuer has received written notice
from any Lender, the Administrative Agent or any Loan Party, on or prior
to the Business Day prior to the requested date of issuance or amendment
of such Letter of Credit, that one or more applicable conditions
contained in Article V shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a Letter
of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit Application
must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and
time as the L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or enter
into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an "Auto-Renewal Letter of Credit"); provided that any
such
28
Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any
such renewal at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the "Nonrenewal Notice
Date") in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the renewal of such
Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the L/C Issuer shall
not permit any such renewal if (A) the L/C Issuer has determined that it
would have no obligation at such time to issue such Letter of Credit in
its renewed form under the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is two
Business Days before the Nonrenewal Notice Date from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer under
a Letter of Credit (each such date, an "Honor Date"), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Lender's Pro Rata Share thereof. In such event, the Borrower shall be
deemed to have requested a Borrowing of Base Rate Revolving Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Aggregate Revolving Commitments
and the conditions set forth in Section 5.02 (other than the delivery of
a Loan Notice). Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent's Office in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each
Lender that so makes funds available shall be deemed to have made a Base
Rate Revolving Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the L/C Issuer.
29
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Revolving Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender's payment to the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share of such amount shall be solely for the account
of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Lender's
obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 5.02 (other than delivery
by the Borrower of a Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer at
a rate per annum equal to the Federal Funds Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Pro
Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
30
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in
its discretion), each Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Pro Rata Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, any other Loan Document or any other agreement
or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that the Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Borrower's
instructions or other irregularity, the Borrower will immediately
notify the L/C Issuer. The Borrower shall be conclusively deemed
to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other
31
than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any
such document. None of the L/C Issuer, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of the L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Borrower when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), (i) the rules of
the "International Standby Practices 1998" (or such later version thereof as may
be in effect at the time of issuance) published by the Institute of
International Banking Law & Practice (the "ISP98") shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
32
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share (i) a Letter of Credit fee for each commercial Letter of Credit equal
to the Applicable Rate times the daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit) and (ii) a Letter of Credit fee for each
standby Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such letter of
credit fees shall be computed on a quarterly basis in arrears. Such letter of
credit fees shall be due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit in the amounts
specified in the Fee Letter. Such fronting fee shall be due and payable
quarterly in arrears on the Business Day immediately following the last Business
Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, and on the Letter of
Credit Expiration Date. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
----------------
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Borrower in Dollars from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of
such Lender's Revolving Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment, and provided, further, that the Borrower shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.04, prepay under Section
2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base
Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender's Pro Rata Share times the amount of
such Swing Line Loan.
33
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be
made upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum principal amount of $100,000, or a whole
multiple of $100,000 in excess thereof, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed
Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Revolving Loan in an
amount equal to such Lender's Pro Rata Share of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02, without regard
to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Commitments and the conditions set forth in Section
5.02. The Swing Line Lender shall furnish the Borrower with a copy of
the applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Loan Notice available to the
Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m. on the day specified in such Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds
so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Borrowing of Revolving Loans in accordance with Section
2.04(c)(i), the request for Base Rate Revolving Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's payment
to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of
such participation.
34
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Borrower or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender's
obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02. No such purchase or
funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with
interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was
funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 11.06 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Revolving Loans or risk
participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
35
2.05 Prepayments.
-----------
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans and Term Loans. The Borrower may, upon
notice from the Borrower to the Administrative Agent, at any time or
from time to time voluntarily prepay Revolving Loans and the Term Loans
in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate
Loans; (ii) any such prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding); (iii) any such prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding) and (iv) any such prepayment of the Term Loans made on or
before December 31, 2003 shall be applied to the Tranche C Term Loan
until paid in full, then to the Tranche B Term Loan until paid in full
and then to the Tranche A Term Loan (in each case to the remaining
principal amortization payments in inverse order of maturity) and any
such prepayment of the Term Loans made after December 31, 2003 shall be
applied to the Tranche A Term Loan, the Tranche B Term Loan or the
Tranche C Term Loan, as the Borrower may elect (in each case to the
remaining principal amortization payments in inverse order of maturity).
Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable
on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such
prepayment shall be applied to the Loans of the Lenders in accordance
with their respective Pro Rata Shares.
(ii) Swing Line Loans. The Borrower may, upon notice to the
Swing Line Lender (with a copy to the Administrative Agent), at any time
or from time to time, voluntarily prepay Swing Line Loans in whole or in
part without premium or penalty; provided that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent not later
than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment. If such notice is given
by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein.
(b) Mandatory Prepayments of Loans.
(i) Aggregate Revolving Commitments. If for any reason the
Total Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay
Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i)
unless after the prepayment in full of the Revolving Loans and
36
Swing Line Loans the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect.
(ii) Dispositions and Involuntary Dispositions. The Borrower
shall prepay the Loans and Cash Collateralize the L/C Obligations as
hereafter provided in an aggregate amount equal to 100% of the Net Cash
Proceeds of all Dispositions and Involuntary Dispositions to the extent
(A) such Net Cash Proceeds are not reinvested in the same or similar
Property within 180 days of the date of such Disposition and (B) the
aggregate amount of such Net Cash Proceeds not reinvested in accordance
with the foregoing clause (A) shall exceed $2,500,000 in any fiscal
year. Such prepayment shall be due immediately upon the expiration of
the 180 day period set forth in clause (A) (to the extent such
prepayment exceeds the threshold in clause (B)) and shall be applied as
set forth in clause (v) below.
(iii) Debt Issuances. Immediately upon receipt by the Borrower
or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the
Borrower shall prepay the Loans and Cash Collateralize the L/C
Obligations as hereafter provided in an aggregate amount equal to 100%
of such Net Cash Proceeds (such prepayment to be applied as set forth in
clause (v) below).
(iv) Equity Issuances. Immediately upon the receipt by the
Borrower or any Subsidiary of the Net Cash Proceeds of any Equity
Issuance, the Borrower shall prepay the Loans and Cash Collateralize the
L/C Obligations in an aggregate amount equal to 50% of such Net Cash
Proceeds (such prepayment to be applied as set forth in clause (vi)
below).
(v) Application of Mandatory Prepayments. All amounts required
to be paid pursuant to this Section 2.05(b) shall be applied as follows:
(A) with respect to all amounts prepaid pursuant to
Section 2.05(b)(i), to Revolving Loans and Swing Line Loans and
(after all Revolving Loans and all Swing Line Loans have been
repaid) to Cash Collateralize L/C Obligations; and
(B) with respect to all amounts prepaid pursuant to
Section 2.05(b)(ii), (iii) and (iv), first to the Tranche C Term
Loan (to the remaining principal amortization payments in inverse
order of maturity), then (after the Tranche C Term Loan has been
paid in full) to the Tranche B Term Loan (to the remaining
principal amortization payments in inverse order of maturity),
then (after the Tranche B Term Loan has been paid in full) to the
Revolving Loans and Swing Line Loans (but without any reduction
in the Aggregate Revolving Commitments) and then (after all
Revolving Loans and all Swing Line Loans have been repaid) to
Cash Collateralize L/C Obligations (but without any reduction in
the Aggregate Revolving Commitments).
Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or
penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
37
2.06 Termination or Reduction of Aggregate Revolving Commitments.
-----------------------------------------------------------
The Borrower may, upon notice from the Borrower to the Administrative
Agent, terminate the Aggregate Revolving Commitments or permanently reduce the
Aggregate Revolving Commitments to an amount not less than the Outstanding
Amount of Revolving Loans, Swing Line Loans and L/C Obligations; provided that
(i) any such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or reduction and
(ii) any such partial reduction shall be in an aggregate amount of $10,000,000
or any whole multiple of $1,000,000 in excess thereof. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Pro Rata Share. All commitment fees accrued until the effective
date of any termination of the Aggregate Revolving Commitments shall be paid on
the effective date of such termination.
2.07 Repayment of Loans.
------------------
(a) Revolving Loans. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of all Revolving Loans outstanding
on such date.
(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan
on the earlier to occur of (i) the date ten (10) Business Days after such Loan
is made and (ii) the Maturity Date.
(c) Tranche A Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche A Term Loan in installments on the dates and in
the amounts set forth in the table below (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.05), unless
accelerated sooner pursuant to Section 9.02:
====================================================
Principal Amortization
Payment Dates Payment
----------------------------------------------------
----------------------------------------------------
December 31, 2003 $ 1,625,000
----------------------------------------------------
March 31, 2004 $ 2,166,667
----------------------------------------------------
June 30, 2004 $ 2,166,667
----------------------------------------------------
September 30, 2004 $ 2,166,667
----------------------------------------------------
December 31, 2004 $ 2,166,667
----------------------------------------------------
March 31, 2005 $ 2,166,667
----------------------------------------------------
June 30, 2005 $ 2,166,667
----------------------------------------------------
September 30, 2005 $ 2,166,667
----------------------------------------------------
December 31, 2005 $ 2,166,665
----------------------------------------------------
====================================================
(d) Tranche B Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche B Term Loan in installments on the dates and in
the amounts set forth in the table below (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.05), unless
accelerated sooner pursuant to Section 9.02:
38
====================================================
Principal Amortization
Payment Dates Payment
----------------------------------------------------
----------------------------------------------------
December 31, 2003 $ 1,920,854.50
----------------------------------------------------
====================================================
(e) Tranche C Term Loan. The Borrower shall repay the outstanding
principal amount of the Tranche C Term Loan in installments on the dates and in
the amounts set forth in the table below (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to Section 2.05), unless
accelerated sooner pursuant to Section 9.02:
====================================================
Principal Amortization
Payment Dates Payment
----------------------------------------------------
----------------------------------------------------
December 31, 2003 $ 204,146.50
----------------------------------------------------
March 31, 2004 $ 1,583,333.00
----------------------------------------------------
June 30, 2004 $ 1,583,333.00
----------------------------------------------------
September 30, 2004 $ 1,583,333.00
----------------------------------------------------
December 31, 2004 $ 2,833,333.00
----------------------------------------------------
March 31, 2005 $ 2,833,333.00
----------------------------------------------------
June 30, 2005 $ 2,833,333.00
----------------------------------------------------
September 30, 2005 $ 2,833,333.00
----------------------------------------------------
December 31, 2005 $ 4,083,334.00
----------------------------------------------------
March 31, 2006 $ 6,250,000.00
----------------------------------------------------
June 30, 2006 $ 6,250,000.00
----------------------------------------------------
September 30, 2006 $ 6,250,000.00
----------------------------------------------------
December 31, 2006 $ 7,500,000.00
----------------------------------------------------
March 31, 2007 $ 7,500,000.00
----------------------------------------------------
June 30, 2007 $ 7,500,000.00
----------------------------------------------------
September 30, 2007 $ 7,500,000.00
----------------------------------------------------
December 31, 2007 $ 8,750,000.00
----------------------------------------------------
March 31, 2008 $ 8,750,000.00
----------------------------------------------------
June 30, 2008 $ 8,750,000.00
----------------------------------------------------
September 30, 2008 $ 8,750,000.00
----------------------------------------------------
====================================================
2.08 Interest.
--------
(a) Subject to the provisions of subsection (b) below, (i)
each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum
equal to the sum of (A) the Eurodollar Rate for such Interest Period
plus (B) the Applicable Rate; (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal
39
amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears
on each Interest Payment Date applicable thereto and at such other times
as may be specified herein. Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding under any Debtor
Relief Law.
2.09 Fees.
----
In addition to certain fees described in subsections (i) and (j) of
Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with
its Pro Rata Share, a commitment fee equal to the product of (i) the
Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of
the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur
after the Closing Date, and on the Maturity Date. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect. For
the avoidance of doubt, Swing Line Loans shall not be counted towards or
considered usage of the Aggregate Commitments for purposes of computing
the commitment fee in accordance with this Section 2.09(a).
(b) Other Fees.
(i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter. Such
fees shall be fully earned when paid and shall non-refundable for
any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees
as shall have been separately agreed upon in writing in the amounts and
at the times so specified. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
40
2.10 Computation of Interest and Fees.
--------------------------------
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one day.
2.11 Evidence of Debt.
----------------
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a promissory note,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each such promissory note shall (i) in the case of Revolving Loans, be
in the form of Exhibit C-1 (a "Revolving Note"), (ii) in the case of Swing Line
Loans, be in the form of Exhibit C-2 (a "Swing Line Note"), (iii) in the case of
the Tranche A Term Loan, be in the form of Exhibit C-3 (a " Tranche A Term
Note"), (iv) in the case of the Tranche B Term Loan, be in the form of Exhibit
C-4 (a " Tranche B Term Note") and (v) in the case of the Tranche C Term Loan,
be in the form of Exhibit C-5 (a " Tranche C Term Note"). Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 Payments Generally.
------------------
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided
41
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment to
be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, interest and fees then due hereunder, such funds shall be applied
(i) first, toward costs and expenses (including Attorney Costs and amounts
payable under Article III) incurred by the Administrative Agent and each Lender,
(ii) second, toward repayment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be
conclusive, absent manifest error.
42
(e) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to
fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 Sharing of Payments.
-------------------
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it (but not including any amounts
applied by the Swing Line Lender to outstanding Swing Line Loans), any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them and/or such subparticipations in the participations in
L/C Obligations or Swing Line Loans held by them, as the case may be, as shall
be necessary to cause such purchasing Lender to share the excess payment in
respect of such Loans or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without
further interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
43
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
-----
(a) Any and all payments by any Loan Party to or for the account of
the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If any Loan Party
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make such deductions, (iii) such Loan Party
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within thirty days after
the date of such payment, such Loan Party shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this subsection (d) shall be made within thirty days after the
date the Lender or the Administrative Agent makes a demand therefor.
44
3.02 Illegality.
----------
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 Inability to Determine Rates.
----------------------------
If the Administrative Agent determines that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Base Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to the Lenders of funding such Loan, the Administrative Agent will promptly
notify the Borrower and all Lenders. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
---------------------------------------------------
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as
the case may be) issuing or participating in Letters of Credit, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements utilized, as to Eurodollar Rate Loans, in the determination of the
Eurodollar Rate), then from time to time upon demand of such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
45
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
3.05 Funding Losses.
--------------
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other
than the last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section 11.16;
including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with
the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 Matters Applicable to all Requests for Compensation.
---------------------------------------------------
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04, the Borrower may replace such Lender in accordance with Section
11.16.
46
3.07 Survival.
--------
All of the Borrower's obligations under this Article III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
GUARANTY
--------
4.01 The Guaranty.
------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract or a
Treasury Management Agreement, and the Administrative Agent as hereinafter
provided, as primary obligor and not as surety, the prompt payment of the
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents, Swap Contracts or Treasury Management Agreements,
the obligations of each Guarantor under this Agreement and the other Loan
Documents shall be limited to an aggregate amount equal to the largest amount
that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.
4.02 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents, Swap
Contracts or Treasury Management Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 4.02 that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Each Guarantor agrees that
such Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under
this Article IV until such time as the Obligations have been paid in full and
the Commitment have expired or terminated. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
47
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall
be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Loan Documents, any Swap Contract or Treasury Management
Agreement between any Loan Party and any Lender, or any Affiliate of a
Lender, or any other agreement or instrument referred to in the Loan
Documents or such Swap Contracts or Treasury Management Agreements shall
be done or omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Loan Documents,
any Swap Contract or Treasury Management Agreement between any Loan
Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Loan Documents or such Swap
Contracts or Treasury Management Agreements shall be waived or any other
guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt
with;
(d) any Lien granted to, or in favor of, the Administrative
Agent or any Lender or Lenders as security for any of the Obligations
shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents or any Swap Contract or Treasury Management Agreement
between any Loan Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Loan Documents or such Swap
Contracts or Treasury Management Agreement, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
-------------
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers.
--------------------------
Without limiting the generality of the provisions of this Article IV,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat.
Sections 26-7 through 26-9, inclusive, to the extent applicable.
48
Each Guarantor further agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the exercise of rights
of subrogation pursuant to Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 Rights of Contribution.
----------------------
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.06 shall be
subordinate and subject in right of payment to the Obligations until such time
as the Obligations have been paid in full and the Commitments have expired or
terminated, and none of the Guarantors shall exercise any right or remedy under
this Section 4.06 against any other Guarantor until such Obligations have been
paid in full and the Commitments have expired or terminated. For purposes of
this Section 4.06, (a) "Excess Payment" shall mean the amount paid by any
Guarantor in excess of its Ratable Share of any Guaranteed Obligations; (b)
"Ratable Share" shall mean, for any Guarantor in respect of any payment of
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Loan Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Loan Parties hereunder) of the Loan
Parties; provided, however, that, for purposes of calculating the Ratable Shares
of the Guarantors in respect of any payment of Obligations, any Guarantor that
became a Guarantor subsequent to the date of any such payment shall be deemed to
have been a Guarantor on the date of such payment and the financial information
for such Guarantor as of the date such Guarantor became a Guarantor shall be
utilized for such Guarantor in connection with such payment; (c) "Contribution
Share" shall mean, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of
such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Loan Parties other than
the maker of such Excess
49
Payment exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of the Loan Parties) of the Loan Parties other than the maker of
such Excess Payment; provided, however, that, for purposes of calculating the
Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess
Payment shall be deemed to have been a Guarantor on the date of such Excess
Payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such Excess Payment; and (d) "Guaranteed Obligations" shall mean the
Obligations guaranteed by the Guarantors pursuant to this Article IV. This
Section 4.06 shall not be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under Law against the
Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding
the foregoing, all rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor shall be relieved of its
obligations in accordance with Section 10.11.
4.07 Guarantee of Payment; Continuing Guarantee.
------------------------------------------
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
--------------------------------------
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of
executed counterparts of this Agreement and the other Loan Documents,
each properly executed by a Responsible Officer of the signing Loan
Party and, in the case of this Agreement, by each Lender.
(b) Transaction Documents. The Administrative Agent shall have
received a certified copy of the Purchase Agreement and all other
related material documentation for the Transaction (in each case
including schedules and exhibits), together with all amendments,
modifications, supplements and waivers, all of which shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(c) Consummation of Transaction. The Administrative Agent
shall have received reasonably satisfactory evidence that the
Transaction shall have been consummated (or contemporaneous with the
advances of the initial Loans hereunder will be consummated)
substantially in accordance with the terms of the Transaction Documents
and substantially in compliance with applicable law and regulatory
approvals.
(d) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals
or facsimiles (followed promptly by originals),
50
dated as of a recent date before the Closing Date and in form and
substance satisfactory to the Administrative Agent and its legal
counsel:
(i) copies of the Organization Documents of each
Loan Party certified to be true and complete as of a recent date
by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary
of such Loan Party to be true and correct as of the Closing Date;
(ii) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as the Administrative
Agent may require evidencing the identity, authority and capacity
of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party; and
(iii) such documents and certifications as the
Administrative Agent may reasonably require to evidence that each
Loan Party is duly organized or formed, and is validly existing,
in good standing and qualified to engage in business in its state
of organization or formation, the state of its principal place of
business and each other jurisdiction where its ownership, lease
or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse
Effect.
(e) Opinions of Counsel.
(i) Receipt by the Administrative Agent of a
favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender,
dated as of the Closing Date, and in form and substance
satisfactory to the Administrative Agent.
(ii) reliance letters permitting the Administrative
Agent and the Lenders to rely on the legal opinions given in
connection with the Transaction.
(f) Perfection and Priority of Liens. Receipt by the
Administrative Agent of the following:
(i) searches of Uniform Commercial Code filings in
the jurisdiction of formation of each Loan Party, the
jurisdiction of the chief executive office of each Loan Party and
each jurisdiction where any Collateral is located or where a
filing would need to be made in order to perfect the
Administrative Agent's security interest in the Collateral,
copies of the financing statements on file in such jurisdictions
and evidence that no Liens exist other than Permitted Liens;
(ii) all certificates evidencing any certificated
Capital Stock pledged to the Administrative Agent pursuant to the
Pledge Agreement, together with duly executed in blank, undated
stock powers attached thereto (unless, with respect to the
pledged Capital Stock of any Foreign Subsidiary, such stock
powers are deemed unnecessary by the Administrative Agent in its
reasonable discretion under the law of the jurisdiction of
incorporation of such Person);
51
(iii) searches of ownership of, and Liens on,
intellectual property of each Loan Party in the appropriate
governmental offices;
(iv) duly executed notices of grant of security
interest in the form required by the Security Agreement as are
necessary, in the Administrative Agent's sole discretion, to
perfect the Administrative Agent's security interest in the
intellectual property of the Loan Parties;
(v) in the case of any personal property Collateral
located at a premises leased by a Loan Party, such estoppel
letters, consents and waivers from the landlords on such real
property as may be required by the Administrative Agent.
(g) Financial Statements. The Administrative Agent shall have
received:
(i) interim quarterly financial statements of the
Borrower and its Subsidiaries for the fiscal quarter ending
September 30, 2003;
(ii) a pro forma balance sheet and income statement
of the Borrower and its Subsidiaries giving effect to the
Transaction and the other transactions contemplated hereby and
reflecting estimated purchase price accounting adjustments
(collectively, the "Pro Forma Statements");
(iii) the projections of the Borrower's financial
condition, results of operations and cash flows for the fiscal
years ending December 31, 2004, December 31, 2005, December 31,
2006, December 31, 2007 and December 31, 2008 (collectively, the
"Closing Date Projections"); and
(iv) such other information relating to the
Transaction as the Administrative Agent may reasonably request.
(h) No Material Adverse Change. There shall not have occurred
a material adverse change since December 31, 2002 in the business,
assets, liabilities (actual or contingent), operations, financial
condition or prospects of the Borrower or the Acquired Company, in each
case together with its Subsidiaries taken as a whole (other than matters
publicly disclosed between December 31, 2002 and the Closing Date).
(i) Consents. All material governmental, shareholder and third
party consents (including, but not limited to, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
clearance) and approvals necessary in connection with the Transaction
and the other transactions contemplated hereby shall have been obtained
(or appropriate waivers obtained); all such consents and approvals shall
be in force and effect; and all applicable waiting periods shall have
expired without any action being taken by any authority that could
restrain, prevent or impose any material adverse conditions on the
Transaction or such other transactions or that could seek or threaten
any of the foregoing.
(j) Judgments; Litigation. There shall not exist (a) any
order, decree, judgment, ruling or injunction which restrains the
consummation of the Transaction in the manner contemplated by the
Transaction Documents, and (b) any pending or threatened action, suit,
investigation or proceeding which is reasonably likely to be adversely
determined and, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
52
(k) Evidence of Insurance. Receipt by the Administrative Agent
of copies of insurance policies or certificates of insurance of the Loan
Parties evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, but not limited
to, naming the Administrative Agent as additional insured (in the case
of liability insurance) or loss payee (in the case of hazard insurance)
on behalf of the Lenders.
(l) Closing Certificate. Receipt by the Administrative Agent
of a certificate signed by a Responsible Officer of the Borrower
certifying that the conditions specified in Sections 5.01(h), (i) and
(j) and Sections 5.02(a), (b) and (c) have been satisfied.
(m) Fees. Receipt by the Administrative Agent and the Lenders
of any fees required to be paid on or before the Closing Date shall have
been paid.
(n) Attorney Costs. Unless waived by the Administrative Agent,
the Borrower shall have paid all Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(o) Other. Receipt by the Administrative Agent and the Lenders
of such other documents, instruments, agreements and information as
reasonably requested by the Administrative Agent or any Lender,
including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, environmental matters, material
contracts, debt agreements, property ownership, contingent liabilities,
employment agreements, non-compete agreements and management of the
Borrower, the Acquired Company and their respective Subsidiaries.
5.02 Conditions to all Credit Extensions.
-----------------------------------
The obligation of each Lender to honor any Request for Credit Extension
(other than (i) any request for a conversion of a Eurodollar Rate Loan to a Base
Rate Loan or (ii) any request for an extension of a Eurodollar Rate Loan as, or
a conversion of a Base Rate Loan into, a Eurodollar Rate Loan for an Interest
Period of one month) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and
each other Loan Party contained in Article VI or any other Loan
Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct
in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true
and correct as of such earlier date, and except that for purposes of
this Section 5.02, the representations and warranties contained in
subsections (a) and (b) of Section 6.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) There shall not have been commenced against the Borrower
or any Subsidiary an involuntary case under any applicable Debtor Relief
Law, now or hereafter in effect, or any case,
53
proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender shall have received a Request for Credit
Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than (i) any request for a
conversion of a Eurodollar Rate Loan to a Base Rate Loan or (ii) any request for
an extension of a Eurodollar Rate Loan as, or a conversion of a Base Rate Loan
into, a Eurodollar Rate Loan for an Interest Period of one month) submitted by
the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 5.02(a), (b) and (c) have been satisfied on and
as of the date of the applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that:
6.01 Existence, Qualification and Power.
----------------------------------
Each Loan Party (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (a), (b)(i)
or (c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.02 Authorization; No Contravention.
-------------------------------
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Person's Organization Documents; (b) conflict with or
result in any breach or contravention of (i) any Contractual Obligation to which
such Person is a party if the breach or contravention of such Contractual
Obligation could reasonably be expected to have a Material Adverse Effect or
(ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its Property is subject; (c) result in
the creation of any Lien under any Contractual Obligation to which such Person
is a party; or (d) violate any Law (including, without limitation, Regulation U
or Regulation X issued by the FRB).
54
6.03 Governmental Authorization; Other Consents.
------------------------------------------
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document or with the consummation of the Transaction, other than (i) those that
have already been obtained and are in full force and effect and (ii) filings to
perfect the Liens created by the Collateral Documents.
6.04 Binding Effect.
--------------
This Agreement and each other Loan Document has been duly executed and
delivered by each Loan Party that is party thereto. This Agreement and each
other Loan Document constitutes a legal, valid and binding obligation of each
Loan Party that is party thereto, enforceable against each such Loan Party in
accordance with its terms.
6.05 Financial Statements; No Material Adverse Effect.
------------------------------------------------
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Borrower
and its Subsidiaries dated September 30, 2003 and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments;
and (iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(c) From the date of the Audited Financial Statements to and
including the Closing Date, there has been no Disposition by the Borrower or any
Subsidiary, or any Involuntary Disposition, of any material part of the business
or Property of the Borrower and its Subsidiaries, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Borrower and its Subsidiaries, taken as
a whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.
(d) The Pro Forma Statements and the Closing Date Projections are
based upon reasonable assumptions made known to the Lenders and upon information
not known to be incorrect or misleading in any material respect.
55
(e) The financial statements delivered pursuant to Section 7.01(a)
and (b) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a) and (b)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated and,
in the case of consolidating annual financial statements (if any) delivered
pursuant to Section 7.01(a), consolidating, financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of such date
and for such periods.
(f) Since the date of the Audited Financial Statements, there has
been no event or circumstance that has had or could reasonably be expected to
have a Material Adverse Effect.
6.06 Litigation.
----------
There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, (b) restrains the
consummation of the Transaction in the manner contemplated by the Transaction
Documents or (c) is reasonably likely to be determined adversely to the Borrower
or any of its Subsidiaries and, if determined adversely, could reasonably be
expected to have a Material Adverse Effect.
6.07 No Default.
----------
(a) Neither the Borrower nor any Subsidiary is in default under or
with respect to any Contractual Obligation that could reasonably be expected to
have a Material Adverse Effect.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
----------------------------
Each of the Borrower and its Subsidiaries has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Property of the Borrower and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.09 Environmental Compliance.
------------------------
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Facilities and all operations at the
Facilities are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the
Facilities or the Businesses, and there are no conditions relating to
the Facilities or the Businesses that could give rise to liability under
any applicable Environmental Laws.
56
(b) None of the Facilities contains, or has previously
contained, any Hazardous Materials at, on or under the Facilities in
amounts or concentrations that constitute or constituted a violation of,
or could give rise to liability under, Environmental Laws.
(c) Neither the Borrower nor any Subsidiary has received any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Facilities or the
Businesses, nor does any Responsible Officer of any Loan Party have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) Hazardous Materials have not been transported or disposed
of from the Facilities, or generated, treated, stored or disposed of at,
on or under any of the Facilities or any other location, in each case by
or on behalf the Borrower or any Subsidiary in violation of, or in a
manner that would be reasonably likely to give rise to liability under,
any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Responsible Officers of
the Loan Parties, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Borrower,
any Subsidiary, the Facilities or the Businesses.
(f) There has been no release or, threat of release of
Hazardous Materials at or from the Facilities, or arising from or
related to the operations (including, without limitation, disposal) of
the Borrower or any Subsidiary in connection with the Facilities or
otherwise in connection with the Businesses, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
6.10 Insurance.
---------
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates. The insurance coverage of the Loan Parties as in effect on the Closing
Date is outlined as to carrier, policy number, expiration date, type, amount and
deductibles on Schedule 6.10.
6.11 Taxes.
-----
The Borrower and its Subsidiaries have filed all federal, state and
other material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
57
6.12 ERISA Compliance.
----------------
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Loan Parties, nothing has
occurred which would prevent, or cause the loss of, such qualification. Each
Loan Party and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Internal Revenue Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section
412 of the Internal Revenue Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan
Parties, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) no Loan Party nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
6.13 Subsidiaries.
------------
Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary, together with (i) number of shares of each
class of Capital Stock outstanding, (ii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by the Borrower or any
Subsidiary and (iii) number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar rights
with respect thereto. The outstanding Capital Stock of each Subsidiary is
validly issued, fully paid and non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
------------------------------------------------------------------
(a) Following the application of the proceeds of each Borrowing or
drawing under each Letter of Credit, not more than 25% of the value of the
assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) subject to the provisions of Section 8.01 or Section 8.05 or
subject to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 9.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility
58
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
6.15 Disclosure.
----------
Each Loan Party has disclosed to the Administrative Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Loan Parties represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
6.16 Compliance with Laws.
--------------------
Each of the Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
6.17 Intellectual Property; Licenses, Etc.
------------------------------------
The Borrower and its Subsidiaries own, or possess the legal right to
use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses. Set forth on Schedule 6.17 is a list of all IP
Rights registered or pending registration with the United States Copyright
Office or the United States Patent and Trademark Office and owned by each Loan
Party as of the Closing Date. Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, no claim has
been asserted and is pending by any Person challenging or questioning the use of
any IP Rights or the validity or effectiveness of any IP Rights, nor does any
Loan Party know of any such claim, and, to the knowledge of the Responsible
Officers of the Loan Parties, the use of any IP Rights by the Borrower or any
Subsidiary or the granting of a right or a license in respect of any IP Rights
from the Borrower or any Subsidiary does not infringe on the rights of any
Person. As of the Closing Date, none of the IP Rights owned by any of the Loan
Parties is subject to any material licensing agreement or similar arrangement
except as set forth on Schedule 6.17.
6.18 Solvency.
--------
The Loan Parties are Solvent on a consolidated basis.
59
6.19 Perfection of Security Interests in the Collateral.
--------------------------------------------------
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
6.20 Business Locations.
------------------
(a) Set forth on Schedule 6.20(a) is a list of all real property
located in the United States that is owned or leased by the Loan Parties as of
the Closing Date.
(b) Set forth on Schedule 6.20(b) is a list of all locations where
any tangible personal property of any Loan Party is located as of the Closing
Date (other than those locations set forth on Schedule 6.20(a)).
(c) Set forth on Schedule 6.20(c) is the location of the chief
executive office of each Loan Party as of the Closing Date.
(d) The exact legal name and state of formation of each Loan Party is
as set forth on the signature pages to this Agreement.
(e) Except as set forth on Schedule 6.20(e), no Loan Party has during
the five years preceding the Closing Date (i) changed its legal name, (ii)
changed its state of formation, or (iii) been party to a merger, consolidation
or other change in structure.
6.21 Brokers' Fees.
-------------
Neither the Borrower nor any Subsidiary has any obligation to any Person
in respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.
6.22 Labor Matters.
-------------
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any Subsidiary as of the Closing Date
and neither the Borrower nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
6.23 Representations and Warranties from Purchase Agreement.
------------------------------------------------------
As of the Closing Date, each of the representations and warranties made
by the Seller in the Purchase Agreement is true and correct in all material
respects.
60
6.24 Tax Shelter Regulations.
-----------------------
The Borrower does not intend to treat the Loans and/or Letters of Credit
and related transactions as being a "reportable transaction" (within the meaning
of Treasury Regulation section 1.6011-4). If the Borrower determines to take any
action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. The Borrower acknowledges that the Administrative
Agent and/or one or more of the Lenders may treat the Loans and/or Letters of
Credit as part of a transaction that is subject to Treasury Regulation section
1.6011-4 or section 301.6112-1, and the Administrative Agent and such Lender or
Lenders, as applicable, may file such IRS forms or maintain such lists and other
records as they may determine is required by such Treasury Regulations.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause each
Subsidiary to:
7.01 Financial Statements.
--------------------
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within ninety days
after the end of each fiscal year of the Borrower, a consolidated and,
if requested by the Administrative Agent, consolidating, balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated and, if requested by the Administrative
Agent, consolidating, statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event within forty-five
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the
portion of the Borrower's fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, shareholders' equity and cash flows of
the Borrower and its Subsidiaries in
61
accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes.
7.02 Certificates; Other Information.
-------------------------------
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent
certified public accountants certifying such financial statements and
stating that in making the examination necessary therefor no knowledge
was obtained of any Default as at the date of such financial statements
or, if any such Default shall exist, stating the nature and status of
such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(c) not more than five days after approval by the Borrower's
board of directors, the annual business plan and budget of the Borrower
and its Subsidiaries containing, among other things, projected financial
statements for each quarter of the next fiscal year, beginning with the
fiscal year ending December 31, 2003.
(d) promptly after any request by the Administrative Agent or
any Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or
any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, (i) copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or
to a holder of any Indebtedness owed by the Borrower or any Subsidiary
in its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto and (ii) upon the
request of the Administrative Agent, all reports and written information
to and from the United States Environmental Protection Agency, or any
state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters;
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request;
(g) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat the Loans
and/or Letters of Credit and related transactions as
62
being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or
any successor form;
(h) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a certificate of a Responsible
Officer of the Borrower listing all registration numbers for all
patents, trademarks, service marks, trade names and copyrights awarded
to any Loan Party all patent applications, trademark applications,
service ▇▇▇▇ applications, trade name applications and copyright
applications submitted by any Loan Party, in each case since the date of
the last such certificate (or, if it is the first such certificate, the
Closing Date); and
(i) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a), a certificate of a Responsible Officer
of the Borrower attaching the insurance binder or other evidence of
insurance for any insurance coverage of the Borrower or any Subsidiary
that was renewed, replaced or modified during the period covered by such
financial statements.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(e) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower's website on the Internet
at the website address listed on Schedule 11.02; or (ii) on which such documents
are posted on the Borrower's behalf on IntraLinks/IntraAgency or another
relevant website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests
the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify (which may be by facsimile or electronic mail)
the Administrative Agent and each Lender of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the Borrower shall be required to provide paper copies
of the Compliance Certificates required by Section 7.02(b) to the Administrative
Agent and each of the Lenders. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
7.03 Notices.
-------
(a) Promptly notify the Administrative Agent and each Lender of the
occurrence of any Default.
(b) Promptly notify the Administrative Agent and each Lender of any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws.
63
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.
(e) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, the Loan Parties
will furnish or cause to be furnished to the Administrative Agent, at the Loan
Parties' expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative Agent as
to the nature and extent of the presence of any Materials of Environmental
Concern on any Real Properties (as defined in Section 6.09) and as to the
compliance by the Borrower or any Subsidiary with Environmental Laws at such
Real Properties. If the Loan Parties fail to deliver such an environmental
report within seventy-five (75) days after receipt of such written request then
the Administrative Agent may arrange for same, and the Borrower and its
Subsidiaries hereby grant to the Administrative Agent and its representatives
access to the Real Properties to reasonably undertake such an assessment
(including, where appropriate, invasive soil or groundwater sampling). The
reasonable cost of any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Loan Parties on demand and
added to the obligations secured by the Collateral Documents.
Each notice pursuant to this Section 7.03(a) through (e) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
7.04 Payment of Obligations.
----------------------
Pay and discharge as the same shall become due and payable, all its
material obligations and liabilities, including all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary.
7.05 Preservation of Existence, Etc.
------------------------------
(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and effect its good
standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(c) Take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business.
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(d) Preserve or renew all of its material registered patents,
trademarks, trade names and service marks.
7.06 Maintenance of Properties.
-------------------------
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; (b)
make all necessary repairs thereto and renewals and replacements thereof; and
(c) use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 Maintenance of Insurance.
------------------------
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
not Affiliates of the Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates. The Administrative Agent shall be named as loss
payee or mortgagee, as its interest may appear, and/or additional insured with
respect to any such insurance providing coverage in respect of any Collateral,
and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered or
canceled.
7.08 Compliance with Laws.
--------------------
Comply with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or Property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records.
-----------------
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
7.10 Inspection Rights.
-----------------
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and
65
make copies thereof or abstracts therefrom, and to discuss its affairs, finances
and accounts with its directors, officers, and independent public accountants,
all at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice. The Loan Parties agree that the Administrative Agent, and its
representatives, may conduct an annual audit of the Collateral, at the expense
of the Loan Parties.
7.11 Use of Proceeds.
---------------
Use the proceeds of the Credit Extensions (a) to finance working
capital, capital expenditures and other general corporate purposes, (b) to
refinance existing Indebtedness of the Borrower and its Subsidiaries, (c) to
finance the cash portion of the purchase price of the Transaction and (d) to
finance Permitted Acquisitions, provided that in no event shall the proceeds of
the Credit Extensions be used in contravention of any Law or of any Loan
Document.
7.12 Additional Subsidiaries.
-----------------------
Within thirty (30) days after the acquisition or formation of any
Subsidiary:
(a) notify the Administrative Agent thereof in writing,
together with (i) jurisdiction of formation, (ii) number of shares of
each class of Capital Stock outstanding, (iii) number and percentage of
outstanding shares of each class owned (directly or indirectly) by the
Borrower or any Subsidiary and (iv) number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and
all other similar rights with respect thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause such
Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a Joinder Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, and (ii)
deliver to the Administrative Agent documents of the types referred to
in Sections 5.01(d) and (f) and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.
The Administrative Agent and the Lenders acknowledge and agree that FTI
Merger & Acquisition Advisors, LLC, a Subsidiary of the Borrower, shall not be
subject to the requirements of clause (b) above.
7.13 ERISA Compliance.
----------------
Do, and cause each of its ERISA Affiliates to do, each of the following:
(a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.
66
7.14 Pledged Assets.
--------------
Each Loan Party will (i) cause all of its owned real and personal
Property other than Excluded Property to be subject at all times to first
priority, perfected and, in the case of real Property, title insured Liens in
favor of the Administrative Agent to secure the Obligations pursuant to the
terms and conditions of the Collateral Documents or, with respect to any such
Property acquired subsequent to the Closing Date, such other additional security
documents as the Administrative Agent shall reasonably request, subject in any
case to Permitted Liens and (ii) deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, real
estate title insurance policies, surveys, environmental reports, landlord's
waivers, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the
Administrative Agent's Liens thereunder) and other items of the types required
to be delivered pursuant to Section 5.01(f), all in form, content and scope
reasonably satisfactory to the Administrative Agent. Without limiting the
generality of the above, the Loan Parties will cause (a) 100% of the issued and
outstanding Capital Stock of each Domestic Subsidiary and (b) 65% (or such
greater percentage that, due to a change in an applicable Law after the date
hereof, (1) could not reasonably be expected to cause the undistributed earnings
of such Foreign Subsidiary as determined for United States federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent and (2) could not reasonably be expected to cause any material
adverse tax consequences) of the issued and outstanding Capital Stock entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of
the issued and outstanding Capital Stock not entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary
directly owned by the Parent or any Domestic Subsidiary to be subject at all
times to a first priority, perfected Lien in favor of the Administrative Agent
pursuant to the terms and conditions of the Collateral Documents or such other
security documents as the Administrative Agent shall reasonably request.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 Liens.
-----
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule
8.01 and any renewals or extensions thereof, provided that the Property
covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section
8.03(b);
67
(c) Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or
appeal or other surety bonds relating to such judgments) not in excess
of the Threshold Amount (except to the extent covered by independent
third-party insurance as to which the insurer has acknowledged in
writing its obligation to cover), unless any such judgment remains
undischarged for a period of more than thirty consecutive days during
which execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section
8.03(e); provided that (i) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (ii) the
Indebtedness secured thereby does not exceed the purchase price of the
Property being acquired and (iii) such Liens attach to such Property
concurrently with or within ninety days after the acquisition thereof;
(j) leases or subleases granted to others not interfering in
any material respect with the business of any Loan Party;
(k) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Agreement;
(l) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depository institutions;
68
(n) Liens of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection;
(o) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses; and
(p) Liens on fixed assets securing Indebtedness permitted by
Section 8.03(h).
8.02 Investments.
-----------
Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the
form of cash or Cash Equivalents;
(b) Investments existing as of the Closing Date and set forth
in Schedule 8.02;
(c) Investments consisting of advances or loans to directors
and "officers" as defined in Rule 16a-1(f) of the Securities and
Exchange Act of 1934 for travel, entertainment, relocation and analogous
business purposes in an aggregate principal amount (including
Investments of such type set forth in Schedule 8.02) not to exceed
$1,000,000 at any time outstanding;
(d) Investments consisting of advances or loans to employees
for travel, entertainment, relocation and analogous business purposes
made in the ordinary course of business on terms consistent with past
practices of the Borrower in an aggregate principal amount (including
Investments of such type set forth in Schedule 8.02) not to exceed
$5,000,000 at any time outstanding;
(e) Investments in any Person that is a Loan Party prior to
giving effect to such Investment;
(f) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the grant
of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary
in order to prevent or limit loss;
(g) Guarantees permitted by Section 8.03;
(h) Investments consisting of deferred purchase price payment
obligations of the purchasers of the Permitted Disposition;
(i) Investments in FTI Merger & Acquisition Advisors, LLC in
an aggregate principal amount not to exceed $500,000 at any time
outstanding;
(j) Permitted Acquisitions; and
69
(k) Investments of a nature not contemplated in the foregoing
clauses in an amount not to exceed $2,500,000 in the aggregate at any
time outstanding.
8.03 Indebtedness.
------------
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set
forth in Schedule 8.03 (and renewals, refinancings and extensions
thereof on terms and conditions not materially less favorable to the
applicable debtor(s));
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the Borrower or
any Subsidiary existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(e) purchase money Indebtedness (including obligations in
respect of Capital Leases or Synthetic Lease Obligations) hereafter
incurred by the Borrower or any of its Subsidiaries to finance the
purchase of fixed assets, and renewals, refinancings and extensions
thereof, provided that (i) such Indebtedness when incurred shall not
exceed the purchase price of the asset(s) financed; and (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(f) unsecured Indebtedness in addition to the Indebtedness
described in clauses (a) through (e) and (g) through (i) of this Section
in an aggregate principal amount not to exceed $10,000,000 at any one
time outstanding, and renewals, refinancings and extensions thereof on
terms and conditions not materially less favorable to the applicable
debtor(s));
(g) unsecured Indebtedness assumed in Permitted Acquisitions
and renewals, refinancings and extensions thereof on terms and
conditions not materially less favorable to the applicable debtor(s));
(h) secured Indebtedness assumed in Permitted Acquisitions in
an aggregate principal amount not to exceed $15,000,000 at any one time
outstanding, and renewals, refinancings and extensions thereof; and
(i) Guarantees with respect to Indebtedness permitted under
clauses (a) through (h) of this Section 8.03.
70
8.04 Fundamental Changes.
-------------------
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the
Borrower may merge or consolidate with any of its Subsidiaries provided that the
Borrower shall be the continuing or surviving corporation, (b) any Loan Party
other than the Borrower may merge or consolidate with any other Loan Party other
than the Borrower, (c) any Foreign Subsidiary may be merged or consolidated with
or into any Loan Party provided that such Loan Party shall be the continuing or
surviving corporation, (d) any Foreign Subsidiary may be merged or consolidated
with or into any other Foreign Subsidiary, (e) any Subsidiary of the Borrower
may merge with any Person that is not a Loan Party in connection with a
Disposition permitted under Section 8.05 or a Permitted Acquisition provided
that, if such transaction involves the Borrower, the Borrower shall be the
continuing or surviving corporation, (g) any Wholly Owned Subsidiary of the
Borrower may dissolve, liquidate or wind up its affairs at any time provided
that such dissolution, liquidation or winding up, as applicable, could not have
a Material Adverse Effect and (h) the Borrower and its Subsidiaries may enter
into the Permitted Disposition.
8.05 Dispositions.
------------
Make any Disposition unless (a) the consideration paid in connection
therewith shall be cash or Cash Equivalents paid contemporaneous with
consummation of such transaction (except up to 50% of the consideration of the
Permitted Disposition may be consideration other than cash or Cash Equivalents
and may be paid subsequent to the consummation of such transaction) and shall be
in an amount not less than the fair market value of the Property disposed of,
(b) if such transaction is a Sale and Leaseback Transaction, such transaction is
not prohibited by the terms of Section 8.16, (c) such transaction does not
involve the sale or other disposition of a minority equity interest in any
Subsidiary, (d) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other Property
concurrently being disposed of in a transaction otherwise permitted under this
Section 8.05, (e) the aggregate net book value of all of the assets sold or
otherwise disposed of by the Borrower and its Subsidiaries in all such
transactions (other than the Permitted Disposition) in any fiscal year of the
Borrower shall not exceed $2,500,000, and (f) in the case of the Permitted
Disposition, no later than five (5) Business Days prior to such Disposition, the
Borrower shall have delivered to the Administrative Agent (i) a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro Forma
Basis to such transaction, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b), and (ii) a certificate of a Responsible Officer of
the Borrower specifying the anticipated date of such Disposition, briefly
describing the assets to be sold or otherwise disposed of and setting forth the
net book value of such assets, the aggregate consideration and the Net Cash
Proceeds to be received for such assets in connection with such Disposition.
8.06 Restricted Payments.
-------------------
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
71
(a) each Subsidiary may make Restricted Payments (directly or
indirectly) to any Loan Party;
(b) the Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the Capital
Stock of such Person; and
(c) the Borrower may make any other Restricted Payments so
long as the Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the Borrower containing
reasonably detailed calculations demonstrating that if such Restricted
Payment had been made on the first day of the most recent four fiscal
quarter period preceding the date of such transaction for which the
Borrower has delivered financial statements pursuant to Section 7.01(a)
or (b), the Loan Parties would have been in compliance with Section
8.11(c) (Consolidated Fixed Charge Coverage Ratio) as of the end of such
four fiscal quarter period.
8.07 Change in Nature of Business.
----------------------------
Engage in any material line of business substantially different from
those lines of business conducted by the Borrower and its Subsidiaries on the
Closing Date or any business substantially related or incidental thereto.
8.08 Transactions with Affiliates and Insiders.
-----------------------------------------
Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a) advances
of working capital to any Loan Party, (b) transfers of cash and assets to any
Loan Party, (c) intercompany transactions expressly permitted by Section 8.02,
Section 8.03, Section 8.04, Section 8.05 or Section 8.06, (d) compensation and
reimbursement of expenses of officers and directors and (e) except as otherwise
specifically limited in this Agreement, other transactions which are entered
into in the ordinary course of such Person's business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a
comparable arms-length transaction with a Person other than an officer, director
or Affiliate.
8.09 Burdensome Agreements.
---------------------
Enter into or permit to exist any Contractual Obligation that encumbers
or restricts on the ability of the Borrower or any Subsidiary to (i) pay
dividends or make any other distributions to any Loan Party on its Capital Stock
or with respect to any other interest or participation in, or measured by, its
profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any
of its Property to any Loan Party, (v) grant Liens on any of its Property (other
than Excluded Property) pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan
Party pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan
Documents, (2) any document or instrument governing Indebtedness incurred
pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in
connection
72
therewith, (3) any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien or (4) customary
restrictions and conditions contained in any agreement relating to the sale of
any Property permitted under Section 8.05 pending the consummation of such sale.
8.10 Use of Proceeds.
---------------
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
8.11 Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater than
2.25:1.0.
(b) Consolidated Net Worth. Permit Consolidated Net Worth at any time
to be less than the sum of (i) an amount equal to ninety percent (90%) of
Consolidated Net Worth as of September 30, 2003 after giving pro forma effect to
the Transaction, increased on a cumulative basis as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending December 31,
2003 by an amount equal to 50% of Consolidated Net Income (to the extent
positive) for the fiscal quarter then ended plus (ii) 100% of the proceeds of
all Equity Issuances after the Closing Date (excluding any Equity Issuances in
connection with the Transaction) minus (iii) amounts expended to repurchase
Capital Stock of the Parent in an aggregate amount of up to $50,000,000.
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 1.35:1.0.
8.12 [Reserved].
---------
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and
Form of Entity.
-----------------------------------------------------------------------
(a) Amend, modify or change its Organization Documents in a manner
adverse to the Lenders.
(b) Change its fiscal year.
(c) Without providing ten (10) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
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8.14 Ownership of Subsidiaries; Limitations on Parent.
------------------------------------------------
Notwithstanding any other provisions of this Agreement to the contrary,
(i) permit any Person (other than the Borrower or any Wholly Owned Subsidiary of
the Borrower) to own any Capital Stock of any Subsidiary of the Borrower, except
to qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries, (ii) permit any Subsidiary of the Borrower to issue or
have outstanding any shares of preferred Capital Stock or (iii) create, incur,
assume or suffer to exist any Lien on any Capital Stock of any Subsidiary of the
Borrower, except for Permitted Liens.
8.15 Sale Leasebacks.
---------------
Enter into any Sale and Leaseback Transaction unless (i) if such Sale
and Leaseback Transaction results in a Capital Lease, such Sale and Leaseback
Transaction is permitted by Section 8.03(e) or (ii) if such Sale and Leaseback
Transaction does not result in a Capital Lease, the underlying lease is for a
term of no more than three (3) years.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
-----------------
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, any amount of principal
of any Loan or any L/C Obligation, or (ii) within three days after the
same becomes due, any interest on any Loan or on any L/C Obligation, or
any commitment fee or other fee due hereunder, or (iii) within five days
after the same becomes due, any other amount payable hereunder or under
any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
7.01, 7.02, 7.03, 7.05(a), 7.10 or 7.11 or Article VIII or
(c) Other Defaults. Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty days; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of the Borrower or any other Loan Party herein, in any other
Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when
made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or
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otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined
or syndicated credit arrangement) of more than the Threshold Amount;
(ii) the Borrower or any Subsidiary fails to observe or perform any
other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event (other than an
Involuntary Disposition which is covered by independent third-party
insurance as to which the insurer does not dispute coverage and which
does not constitute a default) occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or
cash collateral in respect thereof to be demanded; or (iii) there occurs
under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its Property;
or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or
unstayed for sixty calendar days; or any proceeding under any Debtor
Relief Law relating to any such Person or to all or any material part of
its Property is instituted without the consent of such Person and
continues undismissed or unstayed for sixty calendar days, or an order
for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party
becomes unable or admits in writing its inability or fails generally to
pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against
all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within thirty days after its issue or
levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) one or more final judgments or orders for the payment of
money in an aggregate amount exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of thirty
consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
75
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or
any other Person contests in any manner the validity or enforceability
of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control.
9.02 Remedies Upon Event of Default.
------------------------------
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and
any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower;
(c) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof);
and
(d) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
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9.03 Application of Funds.
--------------------
After the exercise of remedies provided for in Section 9.02 (or after
the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably
among the Lenders in proportion to the respective amounts described in
this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings and Swap Contracts and
Treasury Management Agreements between any Loan Party and any Lender or
Affiliate of a Lender and to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of
Credit, ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
-----------------------------------------------------
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those
77
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
10.03 Liability of Administrative Agent.
---------------------------------
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
10.04 Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate,
78
affidavit, letter, telegram, facsimile, telex or telephone message, electronic
mail message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent shall take such action with respect to
such Default as may be directed by the Required Lenders in accordance with
Article IX; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the
Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent.
------------------------------------------------------------------
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time,
79
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.07 Indemnification of Administrative Agent.
---------------------------------------
Whether or not the transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Aggregate Revolving
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
10.08 Administrative Agent in its Individual Capacity.
-----------------------------------------------
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
80
10.09 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders, which successor administrative agent shall be consented to by
the Borrower at all times other than during the existence of an Event of Default
(which consent of the Borrower shall not be unreasonably withheld or delayed).
If no successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender
and the respective terms "Administrative Agent", "L/C Issuer" and "Swing Line
Lender" shall mean such successor administrative agent, Letter of Credit issuer
and swing line lender, and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated and the retiring
L/C Issuer's and Swing Line Lender's rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article X and Sections
11.04 and 11.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date thirty days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim.
---------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and
the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; and
81
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 Collateral and Guaranty Matters.
-------------------------------
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any Collateral granted to or held
by the Administrative Agent under any Loan Document (i) upon termination
of the Aggregate Revolving Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with Section
11.01;
(b) to subordinate (or, if requested by the Borrower, release)
any Lien on any Property granted to or held by the Administrative Agent
under any Loan Document to the holder of any Lien on such Property that
is permitted by Section 8.01(b), (i) or (p); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to
release or subordinate its interest in particular types or items of
Property, or to release any Guarantor from its obligations under the
Guaranty, pursuant to this Section 10.11.
10.12 Other Agents; Arrangers and Managers.
------------------------------------
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it
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has not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
---------------
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.02) without
the written consent of such Lender (it being understood and agreed that
a waiver of any condition precedent set forth in Section 5.02 or of any
Default or Event of Default or a mandatory reduction in Commitments is
not considered an extension or increase in Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal (excluding mandatory
prepayments required by Section 2.05), interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected
thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or any fees or other amounts
payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary to
amend the definition of "Default Rate" or to waive any obligation of the
Borrower to pay interest at the Default Rate;
(d) change Section 2.13 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;
(e) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify
any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender directly affected
thereby;
(f) except in connection with a Disposition permitted under
Section 8.05, release all or substantially all of the Collateral without
the written consent of each Lender directly affected thereby; or
(g) release the Borrower or, except in connection with a
merger or consolidation permitted under Section 8.04 or a Disposition
permitted under Section 8.05, all or substantially all
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of the Guarantors, from its or their obligations under the Loan
Documents without the written consent of each Lender directly affected
thereby;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.2 Notices and Other Communications; Facsimile Copies.
--------------------------------------------------
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 11.02 or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party in
a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower, the Administrative Agent, the
L/C Issuer and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the
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provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, the L/C Issuer and
the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower
shall indemnify each Agent-Related Person and each Lender from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 No Waiver; Cumulative Remedies.
------------------------------
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
----------------------------------
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all costs and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions hereof and
thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs and costs and
expenses in connection with the use of Intralinks, Inc. or other similar
information transmission systems in connection with this Agreement, and (b) to
pay or reimburse the Administrative Agent and each Lender for all costs and
expenses incurred in connection
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with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such
costs and expenses incurred during any "workout" or restructuring in respect of
the Obligations and during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. All amounts due under this Section 11.04 shall be payable within ten
Business Days after demand therefor. The agreements in this Section shall
survive the termination of the Aggregate Revolving Commitments and repayment of
all other Obligations.
11.05 Indemnification by the Borrower.
-------------------------------
Whether or not the transactions contemplated hereby are consummated, the
Borrower agrees to indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the "Indemnitees") from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (c) any actual or alleged presence or release of Hazardous Materials
on or from any Property currently or formerly owned or operated by the Borrower,
any Subsidiary or any other Loan Party, or any Environmental Liability related
in any way to the Borrower, any Subsidiary or any other Loan Party, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee. No Indemnitee shall be liable for any
damages arising from the use by others of any information or other materials
obtained through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 11.05 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Revolving Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
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11.06 Payments Set Aside.
------------------
To the extent that any payment by or on behalf of any Loan Party is made
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
11.07 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund (as defined in subsection (g) of this Section) with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000, in the case of any assignment in respect of a revolving
facility, or $1,000,000, in the case of any assignment in respect of a term
facility, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii) shall not (x)
apply to rights in respect of Swing Line Loans or (y) prohibit any Lender from
assigning all or a portion of its rights and obligations among separate tranches
on a non-pro rata basis; (iii) any assignment of a Revolving Commitment must be
approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Lender with a
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Revolving Commitment (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 (which fee is not
payable by the Borrower). Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, the Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's
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prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of
the Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days'
notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer,
it shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
11.08 Confidentiality.
---------------
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
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understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section, "Information" means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party; provided that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Borrower, the other Loan Parties, the Administrative Agent,
each Lender and the respective Affiliates of each of the foregoing (and the
respective partners, directors, officers, employees, agents, advisors and other
representatives of each of the foregoing and their Affiliates) may disclose to
any and all Persons, without limitation of any kind (a) any information with
respect to the U.S. federal and state income tax treatment of the transactions
contemplated hereby and any facts that may be relevant to understanding such tax
treatment, which facts shall not include for this purpose the names of the
parties or any other Person named herein, or information that would permit
identification of the parties or such other Persons, or any pricing terms or
other nonpublic business or financial information that is unrelated to such tax
treatment or facts, and (b) all materials of any kind (including opinions or
other tax analyses) relating to such tax treatment or facts that are provided to
any of the Persons referred to above.
11.09 Set-off.
-------
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower or any other Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any
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other Loan Document, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender shall have made demand under this
Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
11.10 Interest Rate Limitation.
------------------------
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.12 Integration.
-----------
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.13 Survival of Representations and Warranties.
------------------------------------------
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and
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shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
11.14 Severability.
------------
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 Tax Forms.
---------
(a) (i) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Internal Revenue Code
(a "Foreign Lender") shall deliver to the Administrative Agent, prior to
receipt of any payment subject to withholding under the Internal Revenue
Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor
thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be
made to such Foreign Lender by the Borrower pursuant to this Agreement)
or IRS Form W-8ECI or any successor thereto (relating to all payments to
be made to such Foreign Lender by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Internal Revenue Code.
Thereafter and from time to time, each such Foreign Lender shall (A)
promptly submit to the Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by
the Borrower pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any
such sums paid or payable, and at such other times as may be necessary
in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or
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payable with respect to which such Lender acts for its own account that
is not subject to U.S. withholding tax, and (B) two duly signed
completed copies of IRS Form W-8IMY (or any successor thereto), together
with any information such Lender chooses to transmit with such form, and
any other certificate or statement of exemption required under the
Internal Revenue Code, to establish that such Lender is not acting for
its own account with respect to a portion of any such sums payable to
such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing provisions
of this Section 11.15(a); provided that if such Lender shall have
satisfied the requirement of this Section 11.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect
to any payment under any of the Loan Documents, nothing in this Section
11.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.01 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender or other Person for the account of which such
Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrower is not
required to pay additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender
that is a "United States person" within the meaning of Section
7701(a)(30) of the Internal Revenue Code shall deliver to the
Administrative Agent two duly signed completed copies of IRS Form W-9.
If such Lender fails to deliver such forms, then the Administrative
Agent may withhold from any interest payment to such Lender an amount
equivalent to the applicable back-up withholding tax imposed by the
Internal Revenue Code, without reduction.
(c) If any Governmental Authority asserts that the
Administrative Agent did not properly withhold or backup withhold, as
the case may be, any tax or other amount from payments made to or for
the account of any Lender, such Lender shall indemnify the
Administrative Agent therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation
of the Lenders under this Section shall survive the termination of the
Aggregate Revolving Commitments, repayment of all other Obligations
hereunder and the resignation of the Administrative Agent.
11.16 Replacement of Lenders.
----------------------
Under any circumstances set forth herein providing that the Borrower
shall have the right to replace a Lender as a party to this Agreement, the
Borrower may, upon notice to such Lender and the Administrative Agent, replace
such Lender by causing such Lender to assign its Commitment and outstanding
Loans (with the assignment fee to be paid by the Borrower in such instance)
pursuant to Section 11.07(b) to one or more other Lenders or Eligible Assignees
procured by the Borrower. The
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Borrower shall (x) pay in full all principal, interest, fees and other amounts
owing to such Lender through the date of replacement (including any amounts
payable pursuant to Section 3.05), (y) provide appropriate assurances and
indemnities (which may include letters of credit) to the L/C Issuer and the
Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing
Line Loans then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.
11.17 Release of Collateral and Guarantees.
------------------------------------
The Administrative Agent hereby agrees with the Borrower that the
Administrative Agent shall, upon the request of the Borrower:
(a) release any Lien on any Collateral granted to or held by
the Administrative Agent under any Loan Document (i) upon termination of
the Aggregate Revolving Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with Section
11.01;
(b) subordinate or release any Lien on any Property granted to
or held by the Administrative Agent under any Loan Document to the
holder of any Lien on such Property that is permitted by Section
8.01(b), (i) or (p); and
(c) release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
11.18 Governing Law.
-------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF NORTH CAROLINA applicable to agreements made and
to be performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE
Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ SITTING IN CHARLOTTE, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ FOR THE
WESTERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL
94
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
11.19 Waiver of Right to Trial by Jury.
--------------------------------
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.20 USA Patriot Act Notice.
----------------------
Each Lender and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
[SIGNATURE PAGES FOLLOW]
95
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed as of the date first above written.
BORROWER: FTI CONSULTING, INC.,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and Executive Vice President
GUARANTORS: FTI CORPORATE RECOVERY, INC.,
a Maryland corporation
FTI LITIGATION CONSULTING, LLC,
a Maryland limited liability company
▇▇▇▇ CONSULTING, INC.,
a New York corporation
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, INC.,
a Virginia corporation
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.C.,
a New Jersey limited liability company
TECHNOLOGY & FINANCIAL CONSULTING, INC.,
a Texas corporation
TEKLICON, INC.,
a California corporation
FTI OHIO, INC.,
an Ohio corporation
FTI (ANNAPOLIS), LLC,
a Maryland limited liability company
DAS BUSINESS, LLC,
a Maryland limited liability company
FTI TEN EYCK, LLC,
a Maryland limited liability company
LI ACQUISITION COMPANY, LLC,
a Maryland limited liability company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer of each of the Guarantors
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice-President
[SIGNATURE PAGES CONTINUE]
LENDER: BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Director
COMERICA BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
SOVEREIGN BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: AVP
NATIONAL CITY BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President