EXHIBIT 10.1
EXECUTION VERSION
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[Published CUSIP Number: ________________]
CREDIT AGREEMENT
Dated as of September 30, 2005
among
NUVEEN INVESTMENTS, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
and
CITIGROUP GLOBAL MARKETS, INC.,
as
Joint Lead Arrangers and Joint Book Managers
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.............................. 1
1.01 Defined Terms.................................................. 1
1.02 Other Interpretive Provisions.................................. 15
1.03 Accounting Terms............................................... 15
1.04 Rounding....................................................... 16
1.05 References to Agreements and Laws.............................. 16
1.06 Times of Day................................................... 16
ARTICLE II. the COMMITMENTS and loans.................................... 16
2.01 Loans.......................................................... 16
2.02 Borrowings, Conversions and Continuations of Loans............. 17
2.03 Prepayments.................................................... 18
2.04 Termination or Reduction of Commitments........................ 19
2.05 Repayment of Loans............................................. 19
2.06 Interest....................................................... 19
2.07 Fees........................................................... 19
2.08 Computation of Interest and Fees............................... 20
2.09 Evidence of Debt............................................... 20
2.10 Payments Generally............................................. 21
2.11 Sharing of Payments............................................ 22
2.12 Increase in Commitments........................................ 23
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY...................... 24
3.01 Taxes.......................................................... 24
3.02 Illegality..................................................... 25
3.03 Inability to Determine Rates................................... 25
3.04 Increased Cost and Reduced Return; Capital Adequacy............ 26
3.05 Funding Losses................................................. 27
3.06 Matters Applicable to all Requests for Compensation............ 27
3.07 Survival....................................................... 27
ARTICLE IV. CONDITIONS PRECEDENT TO LOANS................................ 27
4.01 Conditions of Initial Loans.................................... 27
4.02 Conditions to All Borrowings................................... 29
ARTICLE V. REPRESENTATIONS AND WARRANTIES............................... 29
5.01 Corporate Existence; Conduct of Business....................... 29
5.02 Authorization and Validity..................................... 30
5.03 Compliance with Laws and Contracts............................. 30
5.04 Governmental Consents.......................................... 30
5.05 Financial Statements........................................... 31
5.06 Material Adverse Change........................................ 31
5.07 Taxes.......................................................... 31
5.08 Litigation and Contingent Obligations.......................... 31
5.09 Subsidiaries................................................... 32
5.10 ERISA.......................................................... 32
5.11 Defaults....................................................... 32
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5.12 Federal Reserve Regulations.................................... 32
5.13 Investment Company............................................. 32
5.14 Ownership of Properties........................................ 32
5.15 Material Agreements............................................ 33
5.16 Insurance...................................................... 33
5.17 Disclosure..................................................... 33
ARTICLE VI. COVENANTS.................................................... 33
6.01 Financial Reporting............................................ 33
6.02 Use of Proceeds................................................ 36
6.03 Notices........................................................ 36
6.04 Conduct of Business............................................ 36
6.05 Taxes.......................................................... 36
6.06 Insurance...................................................... 36
6.07 Compliance with Laws; Material Contractual Obligations......... 37
6.08 Maintenance of Properties...................................... 37
6.09 Inspection..................................................... 37
6.10 Ownership of Subsidiaries...................................... 37
6.11 Indebtedness................................................... 38
6.12 Merger......................................................... 38
6.13 Sale of Assets................................................. 38
6.14 Investments and Purchases...................................... 39
6.15 Liens.......................................................... 39
6.16 Affiliates..................................................... 40
6.17 Change in Corporate Structure; Fiscal Year..................... 41
6.18 Inconsistent Agreements........................................ 41
6.19 Financial Covenants............................................ 41
6.20 ERISA Compliance............................................... 41
ARTICLE VII. DEFAULTS.................................................... 42
7.01 Defaults....................................................... 42
7.02 Remedies Upon Event of Default................................. 43
7.03 Application of Funds........................................... 44
ARTICLE VIII. ADMINISTRATIVE AGENT....................................... 44
8.01 Appointment and Authority...................................... 44
8.02 Rights as a Lender............................................. 45
8.03 Exculpatory Provisions......................................... 45
8.04 Reliance by Administrative Agent............................... 46
8.05 Delegation of Duties........................................... 46
8.06 Resignation of Administrative Agent............................ 46
8.07 Non-Reliance on Administrative Agent and Other Lenders......... 47
8.08 No Other Duties, Etc........................................... 47
8.09 Administrative Agent May File Proofs of Claim.................. 47
ARTICLE IX. MISCELLANEOUS................................................ 48
9.01 Amendments, Etc................................................ 48
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9.02 Notices; Effectiveness; Electronic Communication............... 49
9.03 No Waiver; Cumulative Remedies................................. 51
9.04 Attorney Costs, Expenses and Taxes............................. 51
9.05 Indemnification................................................ 51
9.06 Payments Set Aside............................................. 52
9.07 Successors and Assigns......................................... 53
9.08 Confidentiality................................................ 55
9.09 Set-off........................................................ 56
9.10 Interest Rate Limitation....................................... 56
9.11 Counterparts................................................... 57
9.12 Integration.................................................... 57
9.13 Survival of Representations and Warranties..................... 57
9.14 Severability................................................... 57
9.15 Tax Forms...................................................... 57
9.16 Replacement of Lenders......................................... 59
9.17 Governing Law.................................................. 59
9.19 USA PATRIOT Act Notice......................................... 60
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.09 Subsidiaries and Investments
5.10 ERISA
9.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Note
C Compliance Certificate
D Assignment and Assumption
E-1 Opinion of Counsel
E-2 Opinion of General Counsel
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of September 30,
2005, among NUVEEN INVESTMENTS, INC., a Delaware corporation (the "Borrower"),
each lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), BANK OF AMERICA, N.A., as Administrative Agent, and
CITIBANK N.A., as Syndication Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
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. As used in this Agreement, the following terms shall
have the meanings set forth below:
"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 9.02, 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.
"Advisers Act" means the Investment Advisers Act of 1940, as amended.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract, or otherwise.
"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, BAS), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Annual Operating Cash Flow" means, as at any fiscal quarter end, EBITDA
for the four consecutive fiscal quarters then ended.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating as set forth below:
APPLICABLE RATE
(IN BASIS POINTS)
EURODOLLAR RATE
PRICING AND FEDERAL FUNDS UTILIZATION
LEVEL DEBT RATINGS S&P/▇▇▇▇▇'▇ FACILITY FEE RATE FEE
------- ------------------------ ------------ ----------------- -----------
I > or = A-/A3 8.0 22.0 5.0
II BBB+/Baa1 9.0 36.0 5.0
III BBB/Baa2 12.0 48.0 7.5
IV < or = BBB-/Baa3 15.0 60.0 12.5
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or ▇▇▇▇▇'▇ (collectively, the Debt Ratings) of the
Borrower's non-credit-enhanced, senior unsecured long-term debt; provided
that if the Debt Ratings issued by each of the foregoing rating agencies
differ by one level, then the higher of such Debt Ratings shall apply, and
if there is a split in Debt Ratings of more than one level, then the Debt
Rating that is one level lower than the higher Debt Rating shall apply. If
the Borrower only has one Debt Rating, the Debt Rating that is one level
lower than the actual Debt Rating shall apply. If the Borrower does not
have any Debt Rating, Pricing Level IV shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(f).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.
"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.
"Arrangers" means BAS and CGMI, in their capacities as joint lead arrangers
and joint book managers.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 9.07(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit D or any other form approved by the
Administrative Agent).
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"Attorney Costs" means and includes all 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.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended December 31,
2004, 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 the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.04, and (c) the date of termination
of the commitment of each Lender to make Loans pursuant to Section 7.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
"BAS" means Banc of America Securities LLC 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 such 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.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section 6.01.
"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.
"CFTC" means the Commodities Future Trading Commission and any successor
entity.
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"CGMI" means Citigroup Global Markets, Inc.
"Change of Control" means (a) the acquisition by any Person, or two or more
Persons acting in concert, including without limitation any acquisition effected
by means of any transaction contemplated by Section 6.12, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act of 1934) of 30% or more of the outstanding
shares of voting stock of the Borrower, or (b) during any period of 25
consecutive calendar months, commencing on the date of this Agreement, the
ceasing of those individuals (the "Continuing Directors") who (i) were directors
of the Borrower on the first day of each such period or (ii) subsequently became
directors of the Borrower and whose initial election or initial nomination for
election subsequent to that date was approved by a majority of the Continuing
Directors then on the board of directors of the Borrower, to constitute a
majority of the board of directors of the Borrower.
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 9.01.
"Code" means the Internal Revenue Code of 1986, and regulations promulgated
thereunder.
"Commitment" means, as to each Lender, its obligation to make Loans to the
Borrower pursuant to Section 2.01, 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.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; or (c) to purchase
any materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered. The amount of any Contingent Obligation shall, in the
case of Guaranty Obligations, be deemed
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equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations, shall be equal to the maximum
reasonably anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Debt" means the aggregate outstanding principal balance of all
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis
required to be reflected on a balance sheet prepared in accordance with GAAP.
"Debt Rating" has the meaning specified in the definition of Applicable
Rate.
"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 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 an Insolvency Proceeding.
"Distribution Receivables" means advanced sales commissions reflected on
the consolidated balance sheet of the Borrower and its Subsidiaries in
accordance with GAAP representing fees, commissions or other amounts payable by
registered investment companies sponsored or advised by Nuveen Investments or
any Affiliate thereof relating to the distribution of such investment companies'
shares.
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"Dollar" and "$" mean lawful money of the United States.
"EBITDA" means, for any applicable computation period, the Borrower's and
Subsidiaries' Net Income on a consolidated basis from continuing operations,
plus (a) income and franchise taxes paid or accrued during such period, (b)
interest expenses accrued during such period, and (c) amortization and
depreciation and other non-cash charges deducted in determining Net Income for
such period, all determined and computed in accordance with GAAP; provided, that
to the extent that EBITDA is calculated for a period in which (I) an entity
acquired after the Closing Date by the Borrower (or a Subsidiary thereof) shall
not have been acquired on the first day of such period, EBITDA shall include the
EBITDA contribution of such acquired entity for the relevant portion of such
period prior to the acquisition of such entity as if such acquisition had
occurred prior to the first day of such period, and (II) all or substantially
all of the capital stock or assets of a Subsidiary are sold, transferred,
otherwise disposed or subject to a merger in which the surviving entity is not
the Borrower or a Subsidiary, EBITDA shall not include the EBITDA contribution
of such disposed or merged Subsidiary for any portion of such period prior to
such disposition or merger as if such disposition or merger had occurred prior
to the first day of such period.
"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 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to time) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period. If such rate is not available at such time for any
reason, then the "Eurodollar Base Rate" for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the
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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 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.
"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.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 7.01.
"Existing Credit Agreements" means, collectively, (i) the 3-Year Credit
Agreement dated as of August 7, 2003, among the Borrower, Bank of America, as
administrative agent, Citibank, N.A., as syndication agent, Bank One, N.A., as
documentation agent, and the lenders party thereto, and (ii) the Bridge
Agreement dated as of April 1, 2005 among the Borrower, Citicorp North America,
Inc., as administrative agent, CGMI, as arranger and the other parties thereto.
"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 of New York 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.
"Federal Funds Rate Loan" means a Loan that bears interest based on the
Federal Funds Rate.
"Fee Letters" means, collectively, (i) the letter agreement, dated
September 2, 2005, among the Borrower, the Administrative Agent and BAS, and
(ii) the letter agreement, dated August 30, 2005, among the Borrower, Citibank,
N.A. and CGMI.
"Foreign Lender" has the meaning specified in Section 9.15(a)(i).
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"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"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.
"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 or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation".
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property); (f) all obligations with respect to capital leases;
(g) all Rate Hedging Obligations; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness; and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through (g) above.
"Indemnitee" has the meaning specified in Section 9.05.
"Indenture" means that certain Indenture dated as of September 12, 2005,
between the Borrower and The Bank of New York Trust Company, N.A., as amended,
supplemented, restated or otherwise modified from time to time.
"Information" has the meaning specified in Section 9.08.
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"Insolvency Proceeding" means (a) any case, action or proceeding before any
court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors; undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such 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 or Federal Funds Rate Loan, the first Business Day
of each January, April, July and October 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, or such
other period requested by the Borrower and consented to by all the Lenders;
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, in the case of a Eurodollar Rate Loan, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan 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.
"Investment" of a Person means any loan, advance (other than commission,
travel, entertainment, relocation and similar advances to officers and employees
made in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business), deposit account
or contribution of capital by such Person to any other Person or any investment
in, or purchase or other acquisition of, the stock, partnership interests,
notes, debentures or other securities of any other Person made by such Person.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"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,
9
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.
"Lender" has the meaning specified in the introductory paragraph hereto.
"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.
"Leverage Ratio" means, as determined as of the end of any fiscal quarter,
the ratio of (a) Debt at such time to (b) Annual Operating Cash Flow.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance or lien
(statutory or other) in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease or the repurchase
rights of a party to a Repurchase Agreement.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means this Agreement, each Note, and the Fee Letters.
"Loan Notice" means a notice of (a) a Borrowing, (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.
"Margin Stock" has the meaning assigned to that term under Regulation U.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets or financial
condition of the Borrower or the Borrower and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Borrower to perform under any
Loan Document and to avoid any Event of Default; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against the
Borrower of any Loan Document.
"Material Subsidiary" means at any time any Subsidiary that would meet the
definition of a "significant subsidiary" contained as of the date hereof in
Regulation S-X of the SEC.
"Maturity Date" means September 15, 2010.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"MSRB" means the Municipal Securities Rulemaking Board or any successor
entity.
10
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"NASD" means the NASD Regulation, Inc.
"Net Income" means, for any computation period, with respect to the
Borrower on a consolidated basis with its Subsidiaries, cumulative net income
earned during such period as determined in accordance with GAAP.
"Net Worth" means at any date the consolidated common stockholders equity
of the Borrower and its consolidated Subsidiaries and redeemable preferred stock
of the Borrower determined in accordance with GAAP.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
"Nuveen Investments" means Nuveen Investments, LLC, a Delaware limited
liability company.
"NYSE" means the New York Stock Exchange, Inc.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document or
otherwise with respect to any Loan, 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 the Borrower 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.
"Outstanding Amount" means the aggregate outstanding principal amount of
the Loans after giving effect to any borrowings and prepayments or repayments of
Loans.
"Participant" has the meaning specified in Section 9.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means an employee pension benefit plan, as defined in Section 3(2)
of ERISA, as to which the Borrower or any member of the Controlled Group may
have any liability.
"Platform" has the meaning specified in Section 6.01.
"Pro Rata Share" means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the
11
Commitment of such Lender at such time and the denominator of which is the
amount of the Aggregate Commitments at such time, or, if the commitment of each
Lender to make Loans has been terminated pursuant to Section 7.02, the numerator
of which is the Outstanding Amount of Loans owing to such Lender at such time
and the denominator of which is the Total Outstandings 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" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchase" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (a) acquires any ongoing business or all or substantially
all of the assets of any Person or division or line of business thereof, whether
through purchase of assets, merger or otherwise, or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under any and all agreements,
devices or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward rate currency or interest rate options, puts
and warrants; it being agreed that the amount of such obligations, at any time,
shall be the net amount, if any, that would be payable by such Person if the
relevant Rate Hedging Obligation were terminated on such date, determined in
accordance with market practice.
"Register" has the meaning set forth in Section 9.07(c).
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed in the
Securities Laws.
"Regulation T" means Regulation T of the FRB as from time to time in effect
and shall include any successor or other regulation or official interpretation
of the FRB relating to the extension of credit by securities brokers and dealers
for the purpose of purchasing or carrying margin stocks applicable to such
Persons.
"Regulation U" means Regulation U of the FRB from time to time in effect
and any successor or other regulation or official interpretation of the FRB
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to such Person.
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"Regulation X" means Regulation X of the FRB as from time to time in effect
and shall include any successor or other regulation or official interpretation
of FRB relating to the extension of credit by the specified lenders for the
purpose of purchasing or carrying margin stocks applicable to such Persons.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event; provided, that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"Repurchase Agreement" of a Person means any and all agreements or
arrangements pursuant to which such Person agrees to sell or purchase an asset
or security and simultaneously agrees to purchase or sell, respectively, the
same or a substantially similar asset or security at a date certain or on
demand.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans has been terminated pursuant to Section 7.02, Lenders holding in
the aggregate more than 50% of the Total Outstandings; provided that the
Commitment of, and the portion of the Total Outstandings 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, the president, any
executive vice president or any senior vice president of the Borrower; or, with
respect to compliance with financial covenants, the chief financial officer or
the treasurer of the Borrower, or any other officer having substantially the
same authority and responsibility.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
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"Seed Money" means Investments (i) constituting the initial investment in
any registered investment company sponsored by Nuveen Investments or any
Affiliate thereof made by the Borrower or any Subsidiary thereof pursuant to
Section 14(a) (or any successor provision) of the Investment Company Act,
without regard to any minimum investment requirements under said Section 14(a)
or (ii) constituting a portfolio of securities maintained on the books of the
Borrower or any Affiliate thereof and invested in accordance with a particular
method or investment style in order to develop a performance record and to be
subsequently offered to advisory clients as an investment option.
"Short-term Indebtedness" means Indebtedness with a term of no more than
ten Business Days.
"Significant Subsidiary" means any corporation in which (other than
directors' qualifying shares required by law) 80% or more of the capital stock
of each class having ordinary voting power, and 80% or more of the capital stock
of every other class, in each case, at the time as of which any determination is
being made, is owned, beneficially and of record, by the Borrower, or by one or
more of the other Significant Subsidiaries, or both.
"SIPC" means the Securities Investor Protection Corporation.
"Single Employer Plan" means a Plan subject to Title IV of ERISA maintained
by the Borrower or any member of the Controlled Group for employees of the
Borrower or any member of the Controlled Group, other than a Multiemployer Plan.
"Subsidiary" of a Person means any corporation, limited liability company,
association, partnership, joint venture or other business entity of which more
than 50% of the voting stock or other equity interests (in the case of Persons
other than corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a combination
thereof. Unless the context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (a) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries, as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the end of the quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net sales or
20% of the Net Income of the Borrower and its Subsidiaries for the 12-month
period ending as of the end of the quarter next preceding the date of
determination.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Termination Event" means, with respect to a Plan which is subject to Title
IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or any
other member of the Controlled Group from such Plan during a plan year in which
the Borrower or any other member of the Controlled Group was a substantial
employer as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of such
Plan as a
14
termination under Section 4041 of ERISA, (d) the institution by the PBGC of
proceedings to terminate such Plan or (e) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Plan.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans.
"Type" means, with respect to a Loan, its character as a Base Rate Loan, a
Eurodollar Rate Loan or a Federal Funds Rate Loan.
"Unfunded Liability" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under a Single Employer Plan exceeds
the fair market value of assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plans using PBGC actuarial
assumptions for single employer plan terminations.
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".
(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) 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, except as otherwise specifically prescribed herein.
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(b) If at any time any change in GAAP or any change in the accounting
policies of the Borrower or any Subsidiary 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 or such change in the accounting policies of the Borrower or any Subsidiary
(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.
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 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).
ARTICLE II.
THE COMMITMENTS AND LOANS
2.01 LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
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 Commitment; provided, however, that after giving effect to any
Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the Loans of any Lender
shall not exceed such Lender's Commitment and (iii) the Outstanding Amount of
all Federal Funds Rate Loans shall not exceed $40,000,000. Within the limits of
each Lender's Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under Section 2.03, and
reborrow under this Section 2.01. Loans may be Base Rate Loans, Federal Funds
Rate Loans or Eurodollar Rate Loans, as further provided herein.
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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 or Federal Funds Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Loans or Federal Funds
Rate Loans or conversion from Base Rate Loans to Federal Funds Rate Loans or
Federal Funds Rate Loans to 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 Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a 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. Notwithstanding the foregoing, no Base Rate Loan may be
converted to a Federal Funds Rate Loan on the same day on which the Base Rate
Loan is borrowed, and no Federal Funds Rate Loan may be converted to a Base Rate
Loan on the same day on which the Federal Funds Rate Loan is borrowed.
(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 4.02 (and, if such Borrowing is
the initial Loan, Section 4.01), 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.
17
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an 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.
(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 five Interest Periods in effect with respect to Loans.
(f) Notwithstanding the foregoing, (i) there may not be more than 30
consecutive days during which any one or more Federal Funds Rate Loans may be
outstanding (and all of such outstanding Federal Funds Rate Loans after such
period shall be converted to Eurodollar Rate Loans or Base Rate Loans or be
repaid (and if converted to Base Rate Loans or repaid, may not be converted back
to, or reborrowed as, Federal Funds Rate Loans within 5 Business Days of such
conversion or repayment)), and (ii) the Outstanding Amount of all Federal Funds
Rate Loans at any time outstanding shall not exceed $40,000,000.
2.03 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay 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 or Federal Funds Rate Loans; and (ii) any
prepayment of Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. 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.
(b) If for any reason (i) the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans in an aggregate amount equal to such excess; and (ii) the Outstanding
Amount of Federal Funds Rate Loans at
18
any time exceeds $40,000,000, the Borrower shall immediately prepay Federal
Funds Rate Loans in an aggregate amount equal to such excess.
2.04 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or from time
to time permanently reduce the Aggregate Commitments; 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, (ii) any such
partial reduction shall be in an aggregate amount of $5,000,000 or any whole
multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Pro Rata Share. All facility and
utilization fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.05 REPAYMENT OF LOANS. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Loans outstanding on such date.
2.06 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 Eurodollar Rate for such
Interest Period plus the Applicable Rate; (ii) each Federal Funds Rate Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Federal Funds Rate
plus the Applicable Rate; and (iii) 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.
(b) Upon the occurrence and during the continuance of an Event of Default,
all amounts then due and payable hereunder 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; provided, however, the interest payable on Federal Funds Rate
Loans and Base Rate Loans shall be payable on each Interest Payment Date for the
period ended the prior Business Day (other than the interest payable on the
Maturity Date which shall be payable for the period ended on the Maturity Date).
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.
2.07 FEES.
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(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
equal to the Applicable Rate times the actual daily amount of the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Loans), regardless of usage. The facility fee shall
accrue at all times during the Availability Period (and thereafter so long as
any Loans remain outstanding), including at any time during which one or more of
the conditions in Article IV is not met, and shall be due and payable quarterly
in arrears on the first Business Day of each January, April, July and October
for the period ended the prior Business Day, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date for the period ended
on the Maturity Date (and, if applicable, thereafter on demand). The facility
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.
(b) Utilization Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a utilization
fee of the Applicable Rate per annum times the Total Outstandings on each day
that the Total Outstandings exceed 50% of the actual daily amount of the
Aggregate Commitments. The utilization fee, to the extent payable, shall be due
and payable quarterly in arrears on the first Business Day of each January,
April, July and October for the period ended the prior Business Day, commencing
with the first such date to occur after the Closing Date, and on the Maturity
Date for the period ended on the Maturity Date. The utilization fee shall be
calculated quarterly in arrears. The utilization fee shall accrue at all times,
including at any time during which one or more of the conditions in Article IV
is not met.
(c) Other Fees. (i) The Borrower shall pay to each Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the applicable Fee Letter. Such fees shall be fully
earned when paid and shall not be 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.
2.08 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 2.10(a),
bear interest for one day.
2.09 EVIDENCE OF DEBT. The Loans 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
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and each Lender shall be conclusive absent manifest error of the amount of the
Loans 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
Note, which shall evidence such Lender's Loans in addition to such accounts or
records. 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.
2.10 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 3:00 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 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 3:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) 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
unless the next following Business Day occurs after the Maturity Date, in which
event payment shall be made on the next preceding Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be.
(c) 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 (or, with respect to any Base Rate Loan or
Federal Funds Rate Loan, such notice has been given prior to 12:00 noon on the
date of borrowing such Base Rate Loan or Federal Funds Rate Loan), that the
Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that such 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
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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, within two Business Days, 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.
(d) 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 Loan set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as received
from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make 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.
(f) 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.
2.11 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it, 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 as shall be necessary to cause such purchasing Lender
to share the excess payment in respect of such Loans; provided, however, that if
all or any
22
portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 9.06 (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 9.09) with respect to
such participation as fully as if such Lender were the direct creditor of such
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.
2.12 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to
time after the Closing Date request an increase in the Aggregate Commitments by
an amount (for all such requests) not exceeding $200,000,000; provided that (i)
any such request for an increase shall be in a minimum amount of $10,000,000,
and (ii) the Borrower may make a maximum amount of five (5) such requests. The
increase in the Aggregate Commitments under this Section shall not exceed
$200,000,000. At the time of sending such notice, the Borrower (in mutual
agreement with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond. Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the Borrower and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the effective
date (the "Increase Effective Date") and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of
the final allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Borrower (i)
23
certifying and attaching the resolutions adopted by the Borrower approving or
consenting to such increase, and (ii) certifying that, before and after giving
effect to such increase, (A) the representations and warranties contained in
Article V and the other Loan Documents are true and correct on and as of the
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section 2.12, the representations and warranties contained in Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to Section
6.01, and (B) no Default exists.
(c) Upon the effectiveness of any increase pursuant to this Section 2.12 of
the Aggregate Commitments and any resulting adjustment in a Pro Rata Share, the
Lenders will purchase from each other and sell to each other outstanding Loans
sufficient to cause the outstanding Loans of each Lender to equal its Pro Rata
Share (as so adjusted) of the aggregate outstanding Loans. If any Lender shall
suffer a loss or incur an expense as a result of the effectiveness of such
purchase or sale being during an Interest Period, the Borrower shall reimburse
such Lender for the amount of such loss or expense. Each such Lender shall
furnish the Borrower with a certificate setting forth the basis for determining
the amount to be paid to it hereunder.
(d) This Section shall supersede any provisions in Sections 2.11 or 9.01 to
the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower 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 the Borrower 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) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative
24
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"). 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 in respect of such additional amount, 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.
(c) 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; provided,
however, any claim under this Section 3.01 must be reasonable. Payment under
this subsection (c) shall be made within 30 days after the date the Lender or
the Administrative Agent makes a demand therefor, stating in reasonable detail
the basis for the indemnification claim.
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 or Federal Funds 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. If the
Borrower is required to so prepay any such Eurodollar Rate Loan, then
concurrently with such prepayment, the Borrower may borrow from the affected
Lender a Base Rate Loan or a Federal Funds Rate Loan in the amount of such
prepayment. 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.
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3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders) 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 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; provided, however, the Borrower shall not be required to pay
any such expense if the applicable Lender shall not notify the Borrower of such
expense within 180 days of such Lender being aware of its incurrence.
(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; provided, however, the Borrower shall not be
required to pay any such expense if the applicable Lender shall not notify the
Borrower of such expense within 180 days of such Lender being aware of its
incurrence.
(c) Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for the Borrower to pay additional amounts
pursuant to this Section 3.04 and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
26
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 or Federal Funds 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 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 9.16;
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) The Administrative Agent or any Lender claiming compensation under
Article III shall deliver to the Borrower a certificate of the Administrative
Agent or any Lender claiming compensation under this Article III setting forth
the additional amount or amounts to be paid to it hereunder. Such certificate
shall be presumptively correct 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 9.16.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO LOANS
4.01 CONDITIONS OF INITIAL LOANS. The obligation of each Lender to make its
initial Loan hereunder is subject to the condition that the Administrative Agent
has received on or
27
before the Closing Date all of the following, in form and substance satisfactory
to the Administrative Agent and each Lender, and in sufficient copies for each
Lender:
(a) Credit Agreement and Notes. This Agreement and, if requested, the
Notes, executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Borrower authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of the
Borrower; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to execute, deliver and perform, as applicable, this
Agreement, and all other Loan Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following documents:
(i) the articles or certificate of incorporation and the by-laws of
the Borrower as in effect on the Closing Date, certified by the Secretary
or Assistant Secretary of the Borrower as of the Closing Date; and
(ii) a good standing certificate for the Borrower from the Secretary
of State (or similar, applicable Governmental Authority) of its state of
incorporation and Illinois;
(d) Legal Opinions. An opinion of (i) Winston & ▇▇▇▇▇▇ LLP, counsel to the
Borrower and (ii) ▇▇▇▇ ▇. Berkshire, general counsel of the Borrower addressed
to the Agent and the Lenders, substantially in the forms of Exhibits E-1 and
E-2.
(e) Payment of Fees. Evidence of payment by the Borrower of all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of Bank of America to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute Bank of America's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Borrower and Bank of America upon an invoice itemizing
charges); including any such costs, fees and expenses arising under or
referenced in Sections 2.07 and 9.04;
(f) Certificate. A certificate signed by a Responsible Officer, dated as of
the Closing Date, stating:
(i) that the representations and warranties contained in Article V are
true and correct in all material respects on and as of such date, as though
made on and as of such date;
(ii) that no Default exists or would result from the initial
Borrowing;
28
(iii) that there has occurred since the date of the Audited Financial
Statements, no event or circumstance that has resulted or could reasonably
be expected to result in a Material Adverse Effect;
(iv) the current Debt Ratings; and
(v) that immediately upon funding hereunder the Existing Credit
Agreements shall be paid in full and terminated; and
(g) Other Documents. Such other approvals, opinions, documents or materials
as the Administrative Agent or any Lender may request.
4.02 CONDITIONS TO ALL BORROWINGS. The obligation of each Lender to make
any Loan to be made by it (including its initial Loan) is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date:
(a) Loan Notice. The Administrative Agent shall have received a Loan
Notice;
(b) Continuation of Representations and Warranties. The representations and
warranties in Article V (with the exceptions of Section 5.06 and the first
sentence of Section 5.08) shall be true and correct in all material respects on
and as of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
in all material respects of such earlier date); and
(c) No Existing Default. No Default shall exist or shall result from such
Borrowing.
Each Loan Notice submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower hereunder, as of the date of each
such notice and as of each Borrowing Date, that the conditions in Section 4.02
are satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each
Lender that:
5.01 CORPORATE EXISTENCE; CONDUCT OF BUSINESS. The Borrower and its
Subsidiaries (a) are corporations duly incorporated, validly existing and in
good standing under the Laws of their respective jurisdictions of incorporation,
(b) are duly qualified and in good standing as foreign corporations in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to be so qualified
will not have a Material Adverse Effect, and (c) possess all licenses,
registrations and authorizations from and with any Governmental Authority,
self-regulatory organization or securities exchange necessary or material to the
conduct of its business as presently conducted. Nuveen Investments is (a) a
broker-dealer duly registered under the Exchange Act, (b) a member in good
standing of the NASD, (c) not in arrears in regard to any assessment of the
SIPC, and (d) has received no notice from the SEC, MSRB, NASD or any other
Governmental Authority, self-regulatory
29
organization or securities exchange of any alleged rule violation or other
circumstance which could reasonably be expected to have a Material Adverse
Effect.
5.02 AUTHORIZATION AND VALIDITY. The Borrower has all requisite power and
authority (corporate and otherwise) to execute and deliver each of the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings and such Loan Documents constitute
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar Laws affecting the enforcement of
creditors' right generally or by general principles of equity limiting the
availability of equitable remedies.
5.03 COMPLIANCE WITH LAWS AND CONTRACTS. The Borrower and its Subsidiaries
have complied in all material respects with all applicable Laws, statutes,
rules, regulations, orders and restrictions of any Governmental Authority,
self-regulatory organization or securities exchange having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
properties (including, without limitation the Exchange Act, the Advisers Act,
the Investment Company Act and the applicable rules and regulations of the SEC,
NASD, NYSE, MSRB and CFTC), except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Neither the execution
and delivery by the Borrower of the Loan Documents, the application of the
proceeds of its Loans, the consummation of any transaction contemplated by the
Loan Documents, nor compliance with the provisions of the Loan Documents will,
or at the relevant time did, (a) violate any law, rule, regulation (including
Regulations T, U and X), order, writ, judgment, injunction, decree or award
binding on the Borrower or any Subsidiary thereof or the Borrower's or any such
Subsidiary's charter, articles or certificate of incorporation or by-laws, (b)
violate the provisions of or require the approval or consent of any party to any
indenture, instrument or agreement to which the Borrower or any such Subsidiary
is a party or is subject, or by which it, or its property, is bound or conflict
with or constitute a default thereunder, or result in the creation or imposition
of any Lien (other than Liens permitted by Section 6.15) in, of or on the
property of the Borrower or any such Subsidiary pursuant to the terms of any
such indenture, instrument or agreement, or (c) require the consent or approval
of any Person, except for any violation of, or failure to obtain an approval or
consent required under, any such indenture, instrument or agreement that could
not have a Material Adverse Effect.
5.04 GOVERNMENTAL CONSENTS. No order, consent, approval, qualification,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of, any Governmental
Authority, self-regulatory organization or securities exchange is necessary or
required in connection with the execution, delivery, consummation performance
of, or the legality, validity, binding effect or enforceability of, any of the
Loan Documents, the application of the proceeds of the Loans, or the
consummation of any other transaction contemplated by the Loan Documents.
Neither the Borrower nor any Subsidiary thereof is in default under or in
violation of any foreign, federal, state or local law, rule, regulation, order,
writ, judgment, injunction, decree or award binding upon or applicable to the
Borrower or such Subsidiary, in each case the consequence of which default or
violation could reasonably be expected to have a Material Adverse Effect.
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5.05 FINANCIAL STATEMENTS.
(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; and (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.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated June 30, 2005, 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, and (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 normal year-end audit adjustments.
5.06 MATERIAL ADVERSE CHANGE. No material adverse change in the business,
Property, condition (financial or otherwise), performance, or results of
operations of the Borrower and its Subsidiaries taken as a whole has occurred
since December 31, 2004.
5.07 TAXES. The Borrower and its Subsidiaries have filed or caused to be
filed on a timely basis and in correct form all United States federal and
applicable state tax returns and other material tax returns which are required
to be filed and have paid all material taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any Subsidiary, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP. As of the date
hereof, the United States income tax returns of the Borrower on a consolidated
basis have been audited by the IRS through its Fiscal Year ending December 31,
1999 and, to the Borrower's knowledge, there are no pending audits or
investigations regarding the Borrower's or its Subsidiaries' federal, state or
local tax returns which could reasonably be expected to have a Material Adverse
Effect. No tax liens have been filed and no claims are being asserted with
respect to any such taxes which could reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other governmental charges are
in accordance with GAAP.
5.08 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, proceeding, inquiry or investigation by any Governmental Authority,
self-regulatory organization or securities exchange pending or, to the knowledge
of any of the Borrower's officers, threatened against or affecting the Borrower
or any Subsidiary thereof or any of their respective Properties which could
reasonably be expected to have a Material Adverse Effect or to prevent, enjoin
or unduly delay the making of the Loans or the consummation of the transactions
contemplated by this Agreement. Neither the Borrower nor any Subsidiary thereof
has any material Contingent Obligations not provided for or disclosed in the
Financial Statements.
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5.09 SUBSIDIARIES. Schedule 5.09 hereto contains an accurate list of all of
the Borrower's existing Subsidiaries as of the date hereof, setting forth their
respective jurisdictions of incorporation and the percentage of their capital
stock owned by the Borrower or other Subsidiaries. Except as set forth on
Schedule 5.09 and except for Seed Money, as of the date hereof, the Borrower
does not own or hold, directly or indirectly, any capital stock or equity
security of, or any equity partnership interest in, any Person other than such
Subsidiaries.
5.10 ERISA. Except as disclosed on Schedule 5.10, neither the Borrower nor
any other member of the Controlled Group maintains any Single Employer Plans,
and no Single Employer Plan has any Unfunded Liability in excess of $25,000,000.
Neither the Borrower nor any other member of the Controlled Group maintains, or
is obligated to contribute to, any Multiemployer Plan or has incurred, or is
reasonably expected to incur, any withdrawal liability to any Multiemployer
Plan. Each Plan complies in all material respects with all applicable
requirements of law and regulations. Neither the Borrower nor any member of the
Controlled Group has, with respect to any Plan, failed to make any contribution
or pay any amount required under Section 412 of the Code or Section 302 of ERISA
or the terms of such Plan which could reasonably be expected to be in excess of
$5,000,000. There are no pending or, to the knowledge of the Borrower,
threatened claims, actions, investigations or lawsuits against any Plan, any
fiduciary thereof, or the Borrower or any member of the Controlled Group with
respect to a Plan which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any member of the Controlled Group has engaged
in any prohibited transaction (as defined in Section 4975 of the Code or Section
406 of ERISA) in connection with any Plan which would subject such Person to any
material liability. Within the last five years neither the Borrower nor any
member of the Controlled Group has engaged in a transaction which resulted in a
Single Employer Plan with an Unfunded Liability being transferred out of the
Controlled Group. No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan which is subject to Title IV of ERISA.
5.11 DEFAULTS. No Default has occurred and is continuing or would result
from the consummation of the transactions contemplated by this Agreement or any
other Loan Document.
5.12 FEDERAL RESERVE REGULATIONS. Neither the Borrower nor any Subsidiary
thereof is engaged, directly or indirectly, principally, or as one of its
important activities, in the business of extending or arranging for the
extension of, credit for the purpose of purchasing or carrying Margin Stock. No
part of the proceeds of any Loan will be used in a manner which would violate,
or result in any violation of, Regulation T, Regulation U or Regulation X.
Neither the making of a Loan hereunder or the use of the proceeds thereof will
violate or be inconsistent with the provisions of, Regulation T, Regulation U or
Regulation X.
5.13 INVESTMENT COMPANY. The Borrower is not, and after giving effect to
any Loan will not be, an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5.14 OWNERSHIP OF PROPERTIES. The Borrower and its Subsidiaries have a
subsisting leasehold interest in, or good and marketable title, free of all
Liens, other than those permitted by Section 6.15, to all of the properties and
assets reflected in the Audited Financial Statements as being owned by it,
except for assets sold, transferred or otherwise disposed of in the ordinary
32
course of business since the date thereof and such defects of title and Liens as
could not, individually or in the aggregate, have a Material Adverse Effect. To
the knowledge of the Borrower, there are no actual, threatened or alleged
defaults with respect to any leases of real property under which the Borrower or
any Subsidiary thereof is lessee or lessor which could reasonably be expected to
have a Material Adverse Effect.
5.15 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary thereof
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.16 INSURANCE. The Borrower and its Subsidiaries maintain with financially
sound and reputable insurance companies insurance on their Property in such
amounts and covering such risk as is consistent with sound business practice.
5.17 DISCLOSURE. None of the (a) information, exhibits or reports furnished
or to be furnished by the Borrower or any Subsidiary thereof to the
Administrative Agent or to any Lender in connection with the negotiation of the
Loan Documents, taken as a whole, or (b) representations or warranties of the
Borrower or any Subsidiary thereof contained in this Agreement, the other Loan
Documents or any other document, certificate or written statement furnished to
the Administrative Agent or the Lenders by or on behalf of the Borrower or any
Subsidiary thereof pursuant to this Agreement contained, contains or will
contain any untrue statement of a material fact or omitted, omits or will omit
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which they
were made. As of the date of this Agreement, there is no fact known to the
Borrower (other than matters of a general economic nature) that has had or could
reasonably be expected to have a Material Adverse Effect and that has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated by this Agreement.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.01 FINANCIAL REPORTING. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with GAAP, consistently applied, and will furnish to the Administrative Agent,
with sufficient copies for the Lenders:
(a) As soon as practicable and in any event within 90 days after the close
of each of its fiscal years, an unqualified audit report prepared in accordance
with GAAP on a consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period and related statements of income,
and changes in stockholders' equity and cash flows and
33
accompanied by a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing as to whether such financial statements are free
of material misstatement, which report and opinion shall be prepared in
accordance with audit standards of the Public Company Accounting Oversight Board
and applicable Securities Laws 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 or with respect to the absence of any material misstatement
(provided that so long as the common stock of the Borrower is listed for trading
on the NYSE, the foregoing requirement may be satisfied by the delivery of the
Borrower's Annual Report on Form 10-K filed with the SEC).
(b) As soon as practicable and in any event within 45 days after the close
of the first three fiscal quarters of each of its fiscal years, for itself and
its Subsidiaries, consolidated unaudited balance sheets as at the close of each
such period and consolidated statements of income, changes in stockholders'
equity and cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial officer (provided
that so long as the common stock of the Borrower is listed for trading on the
NYSE, the foregoing requirement may be satisfied by the delivery of the
Borrower's Quarterly Report on Form 10-Q as filed with the SEC).
(c) Together with the financial statements required by clauses (a) and (b)
above and additionally within 45 days after the close of the fourth fiscal
quarter of each fiscal year (which preliminary determination shall be subject to
adjustment upon receipt of Audited Financial Statements (or Form 10-K) and shall
not be deemed to constitute a misrepresentation or breach if prepared in good
faith and the audited numbers differ from the unaudited fourth quarter results),
a Compliance Certificate signed by its chief financial officer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default exists, or if any Default exists, the nature thereof.
(d) As soon as possible and in any event within 10 Business Days after any
officer of the Borrower knows that any Termination Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer of the
Borrower, describing said Termination Event and the action which the Borrower
proposes to take with respect thereto.
(e) As soon as possible and in any event within 10 Business Days after any
officer of the Borrower learns thereof, notice of the assertion or commencement
of any claim, action, litigation, suit or proceeding against or affecting the
Borrower or any Subsidiary, including any investigation or proceeding commenced
by the SEC, NASD, MSRB, NYSE or any other Governmental Authority,
self-regulatory organization or securities exchange, which could have a Material
Adverse Effect.
(f) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements so
furnished.
(g) Within 15 Business Days after the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission (other than Financial and
34
Operational Combined Uniform Single (FOCUS) Reports and Form 17-H Risk
Assessment Reports of the Borrower).
(h) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01 (to the extent
any such documents are included in materials otherwise filed with the SEC) 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 9.02; 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 to the extent the
Administrative Agent or such Lender 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 6.01(c) 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.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
public-side Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC
shall appear prominently on the first page thereof; (x) by marking Borrower
Materials PUBLIC, the Borrower shall be deemed to have authorized the
Administrative Agent, the Arrangers and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 9.07); (y)
all Borrower Materials marked PUBLIC are permitted to be made available through
a portion of the Platform designated Public Investor; and (z) the Administrative
Agent and the Arrangers shall be entitled to treat any Borrower Materials that
are not marked PUBLIC as being suitable only for posting on a portion of the
Platform not designated Public Investor.
35
6.02 USE OF PROCEEDS. The Borrower will use proceeds of its Loans for
general corporate purposes, including permitted Purchases, working capital,
capital expenditures and repayment of Indebtedness outstanding under the
Existing Credit Agreements, of the Borrower and its Subsidiaries. The Borrower
will not and will not permit any Subsidiary thereof to, use any of the proceeds
of its Loans to purchase or carry any Margin Stock in violation of Regulation T,
Regulation U or Regulation X, or to finance the Purchase of any Person which has
not been approved and recommended by the board of directors (or functional
equivalent thereof) of such Person.
6.03 NOTICES. Within 5 days after any officer of the Borrower has knowledge
thereof, the Borrower will give notice in writing to the Lenders of the
occurrence of:
(a) any Default;
(b) any other event or development, financial or other, relating
specifically to the Borrower or any of its Subsidiaries (and not of a general
economic or political nature) that has resulted or could reasonably be expected
to result in a Material Adverse Effect; and
(c) any announcement by ▇▇▇▇▇'▇ or S&P of any change in a Debt Rating.
6.04 CONDUCT OF BUSINESS. The Borrower will, and will cause each of its
Subsidiaries to,(a) subject to Section 6.12(c), preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, (b) maintain all registrations, licenses, consents, approvals
and authorizations from and with any Governmental Authority, self-regulatory
organization or securities exchange necessary or material to the conduct of its
business, and (c) qualify and remain qualified as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where failure to qualify could not
have a Material Adverse Effect. The Borrower will not, and will not permit any
of its Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by them on the date hereof
(provided that further entry into the financial services business, as well as
service businesses related thereto, will not be prohibited by this Section
6.04).
6.05 TAXES. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct in all material respects United States federal and
applicable foreign, state and local tax returns required by applicable law and
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except (i) those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside and (ii) those, with respect to which failure to
file or pay, the Borrower and its Subsidiaries would not reasonably be expected
to have an aggregate liability in excess of $1,000,000.
6.06 INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance in
such amounts and covering such risks as is consistent with sound business
practice, and the Borrower will furnish to the Administrative Agent and any
Lender upon request full information as to the insurance carried.
36
6.07 COMPLIANCE WITH LAWS; MATERIAL CONTRACTUAL OBLIGATIONS. The Borrower
will, and will cause each Subsidiary to, comply with all Laws (including,
without limitation, the Securities Laws, the Advisers Act and the Investment
Company Act), orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, the failure to comply with which could reasonably be expected
to have a Material Adverse Effect and with all Contractual Obligations, the
failure to comply with which could reasonably be expected to have a Material
Adverse Effect.
6.08 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
all material portions of its Property in good repair, working order and
condition (other than ordinary wear and tear), and make all necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times; provided that this Section
shall not prevent the Borrower or any Subsidiary from discontinuing the
operation and maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Borrower has concluded that
such discontinuance would not, individually or in the aggregate, have a Material
Adverse Effect.
6.09 INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, upon at least two Business
Days' notice (unless a Default has occurred and is continuing) and during normal
business hours, by their respective representatives and agents, to inspect any
of the Property, corporate books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers. The Borrower will keep
or cause to be kept, and cause each Subsidiary to keep or cause to be kept,
appropriate records and books of account in which complete entries are to be
made reflecting its and their business and financial transactions, such entries
to be made in accordance with GAAP consistently applied.
6.10 OWNERSHIP OF SUBSIDIARIES. The Borrower will continue to own directly
or indirectly, free and clear of all Liens and restrictions, such outstanding
shares of capital stock of each Material Subsidiary for it to be a Significant
Subsidiary; provided, however, notwithstanding the foregoing, any such capital
stock may be sold, transferred, or otherwise disposed of to, or be subject to a
merger with, another Person other than the Company or any Subsidiary if (a) on
or prior to the effective date of such sale, transfer, disposition or merger the
Borrower delivers to the Administrative Agent and each Lender a Compliance
Certificate demonstrating compliance as of such effective date with Section 6.19
giving pro forma effect to such sale, transfer, disposition or merger (including
without limitation as set forth in clause (II) of the definition of "EBITDA")
and the use of proceeds therefrom as applied on such effective date, (b) no
Default or Event of Default shall then exist or would result from such sale,
transfer, disposition or merger, and (c) the contribution to EBITDA during the
four fiscal quarter period ended immediately prior to such effective date of the
Subsidiary or Subsidiaries whose capital stock is to be sold, transferred,
disposed of or subject to such merger in any such transaction or series of
related transactions shall be less than twenty percent (20%) of EBITDA during
such period.
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6.11 INDEBTEDNESS. The Borrower will not permit any Subsidiary to, create,
incur or suffer to exist any Indebtedness, except:
(a) Short-term Indebtedness incurred in connection with the purchase of
municipal, corporate and treasury bonds and other securities in the ordinary
course of business;
(b) Indebtedness of any Subsidiary owed to the Borrower or any Significant
Subsidiary;
(c) Contingent Obligations consisting of endorsement of instruments for
deposit or collection in the ordinary course of business;
(d) contingent pay-out and similar obligations relating to prior
acquisitions by the such Subsidiary and to acquisitions permitted hereunder; and
(e) obligations in respect of Repurchase Agreements (to the extent such
obligations constitute Indebtedness) and Rate Hedging Obligations incurred in
the ordinary course of business;
(f) unsecured Indebtedness relating to the financing of Distribution
Receivables in an aggregate principal amount not exceeding the amount of such
Distribution Receivables;
(g) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital asset;
(h) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided, that such Indebtedness exists at the time such Person becomes
a Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Subsidiary;
(i) any extension, renewal or replacement of any Indebtedness permitted by
clause (g) or (h) above that does not increase the outstanding principal amount
thereof; and
(j) other unsecured Indebtedness not otherwise permitted by this Section
6.11 in an aggregate principal amount for all Subsidiaries not exceeding
$50,000,000.
6.12 MERGER. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that (a) a Subsidiary
may merge into the Borrower or any Significant Subsidiary of the Borrower, (b)
the Borrower or any Subsidiary may merge or consolidate with any other Person so
long as the Borrower or such Subsidiary is the continuing or surviving
corporation and, prior to and after giving effect to such merger or
consolidation, no Event of Default or Default shall exist, and (c) any
Subsidiary may enter into a merger or consolidation as a means of effecting a
disposition not prohibited by Section 6.13.
6.13 SALE OF ASSETS. Subject to Section 6.10, the Borrower will not, nor
will it permit any Subsidiary to, lease, sell, transfer or otherwise dispose of
all or substantially all of its Property to any other Person other than to the
Borrower or any Significant Subsidiary of the Borrower.
38
6.14 INVESTMENTS AND PURCHASES. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including, without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Purchases, except:
(a) Existing Investments in Subsidiaries and other Investments in existence
on the date hereof and described on Schedule 5.09 hereto;
(b) Securities or assets transferred under Repurchase Agreements;
municipal, corporate and treasury bonds; money market funds as defined in Rule
2a-7 of the Investment Company Act; and other securities purchased in the
ordinary course of business;
(c) Obligations of, or fully guaranteed by, the United States of America;
commercial paper and other notes and securities rated investment grade by a
national securities rating agency; demand deposit accounts maintained in the
ordinary course of business; and bankers acceptances and certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000;
(d) Additional Purchases of or Investments in the stock of Subsidiaries or
the capital stock, assets, obligations or other securities of or interest in
other Persons provided that (i) each such Person shall be engaged in a line of
business not substantially different from those lines of business carried on by
the Borrower and its Subsidiaries on the date hereof (which for this purpose
shall be deemed to include the financial services business as well as service
businesses related thereto), (ii) the transaction shall have been approved and
recommended by the board of directors (or functional equivalent thereof ) of
such Person, and (iii) no Default shall have occurred and be continuing either
immediately before or after giving effect to such transaction and no Material
Adverse Effect would result therefrom;
(e) Seed Money;
(f) Non-cash consideration received in connection with a disposition not
prohibited by Section 6.13;
(g) The creation or acquisition of Subsidiaries that are registered
investment advisors to mutual funds or other investment advisory clients or
otherwise engaged in the financial services business, as well as service
businesses related thereto; and
(h) Other Investments in an aggregate amount as to the Borrower and its
Subsidiaries not exceeding $50,000,000.
6.15 LIENS. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are
39
being contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(b) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business which
secure the payment of obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or the Subsidiaries; and
(e) Statutory Liens on any deposit account of the Borrower and its
Subsidiaries in favor of the applicable depository institution;
(f) Purchase money Liens upon assets acquired or held by the Borrower or
any of its Subsidiaries in the ordinary course of business to secure the
purchase price of such asset or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of any such asset at the time of
acquisition; provided, that no such Lien shall extend to or cover any asset
other than the asset being acquired and no extension, renewal or replacement
shall extend to or cover any asset not theretofore subject to the Lien being
extended, renewed or replaced;
(g) Liens on the assets of any Person that becomes a Subsidiary after the
date hereof; provided, that such Liens exist at the time such Person becomes a
Subsidiary and are not created in contemplation of or in connection with such
Person becoming a Subsidiary;
(h) Deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature;
(i) Judgment Liens in respect of judgments rendered against the Borrower,
any Subsidiary of the Borrower or any combination thereof that (i) are not in
effect for more than 90 days or (ii) individually or in the aggregate could not
reasonably be expected to exceed $25,000,000;
(j) Liens relating to Indebtedness permitted by Sections 6.11(a) and
6.11(e); and
(k) The replacement, extension or renewal of any Lien permitted by clause
(f) or (g) above upon or in the same assets theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount) of the
Indebtedness secured thereby.
6.16 AFFILIATES. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except (a) in the ordinary course
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of business and pursuant to the reasonable requirements of the Borrower's or
such Subsidiary's business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction, and (b) transactions among the
Borrower and Significant Subsidiaries of the Borrower.
6.17 CHANGE IN CORPORATE STRUCTURE; FISCAL YEAR. The Borrower shall not,
nor shall it permit any Subsidiary to, (a) permit any amendment or modification
to be made to its certificate or articles of incorporation or by-laws which is
materially adverse to the interests of the Lenders (provided that the Borrower
shall notify the Agent of any other amendment or modification thereto as soon as
practicable thereafter) or (b) change its fiscal year to end on any date other
than December 31 of each year.
6.18 INCONSISTENT AGREEMENTS. The Borrower will not, and will not permit
any Subsidiary to, be a party to any indenture, agreement, instrument or other
arrangement that directly or indirectly prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, (i) the granting of Liens to secure the Obligations, or (ii) the ability
of any Subsidiary to (a) pay dividends or make other distributions on its
capital stock or other equity interests, (b) make loans or advances to the
Borrower or (c) repay loans or advances from the Borrower; provided that the
foregoing shall not apply to any prohibition or restraint contained in (w) this
Agreement, (x) the Indenture, (y) any document governing Indebtedness of a
Person that is acquired by, but not merged with or into, the Borrower or any
Subsidiary of the Borrower so long as such prohibition or restraint applies only
to such Person and its assets or (z) any document governing purchase money
liens, capital leases and operating leases (but only with respect to the
prohibition or restraint of the type described in (i) above and then only as to
the assets so purchased or leased).
6.19 FINANCIAL COVENANTS. The Borrower on a consolidated basis with its
Subsidiaries shall:
(a) Minimum Net Worth. Maintain a minimum Net Worth (i) as at September 30,
2005 of at least $0 and (ii) as at the last day of each fiscal quarter of the
Borrower thereafter of at least the sum of (A) the amount of Net Worth required
to be maintained pursuant to this Section 6.19(a) as at the end of the
immediately preceding fiscal quarter, plus (B) 30% of Net Income (with no
reduction for net losses during any period) for the fiscal quarter of the
Borrower ending on such day, plus (C) 50% of the aggregate amount of all
increases during the fiscal quarter ending on such day in the stated capital and
additional paid-in capital accounts of the Borrower resulting from the issuance
of equity securities or other capital investments.
(b) Leverage Ratio. Maintain a Leverage Ratio of not more than 3.25 to 1.00
from the Closing Date through the end of the fiscal quarter ending December 31,
2006, and of not more than 3.00 to 1.00 at all times thereafter.
6.20 ERISA COMPLIANCE. The Borrower will (a) fulfill, and cause each member
of the Controlled Group to fulfill, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan, except where the
failure to do so would not result in any liabilities to members of the
Controlled Group in excess of $5,000,000, (b) comply, and cause each member of
the Controlled Group to comply, with all applicable provisions of ERISA and
41
the Code respect to each Plan, except where such failure or noncompliance
individually or in the aggregate would not have a Material Adverse Effect and
(c) not, and not permit any member of the Controlled Group to, (i) seek a waiver
of the minimum funding standards under ERISA, (ii) terminate or withdraw from
any Plan or (iii) take any other action with respect to any Plan which would
reasonably be expected to entitle the PBGC to terminate, impose liability in
respect of, or cause a trustee to be appointed to administer, any Plan, unless
the actions or events described in foregoing clauses (i), (ii) or (iii)
individually or in the aggregate would not have a Material Adverse Effect.
ARTICLE VII.
DEFAULTS
7.01 DEFAULTS. The occurrence of any one or more of the following events
shall constitute an Event of Default:
(a) Representation or Warranty. Any representation or warranty made or
deemed made by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the Administrative Agent under or in connection with this Agreement,
any other Loan Document, any Loan, or any certificate or information delivered
in connection with this Agreement or any other Loan Document shall be false in
any material respect on the date as of which made or deemed made.
(b) Non-Payment. Nonpayment of (i) any principal of any Note when due, or
(ii) any interest upon any Note or any facility fee or other fee or obligations
under any of the Loan Documents within three (3) days after the same becomes
due.
(c) Specific Defaults. The breach by the Borrower of any of the terms or
provisions of Section 6.02, Section 6.03(a), Section 6.04 or Sections 6.10
through 6.15 or Sections 6.17 through 6.20.
(d) Other Defaults. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.01(a), (b) or (c)) of any of the terms or
provisions of this Agreement which is not remedied within thirty (30) days after
written notice from the Administrative Agent or any Lender.
(e) Cross-Default. Failure of the Borrower or any of its Subsidiaries to
pay any Indebtedness aggregating in excess of $25,000,000 for the Borrower and
all its Subsidiaries when due (other than contingent pay-out and similar
obligations relating to prior acquisitions of the Borrower and to acquisitions
permitted hereunder as to which a good faith dispute exists and which are being
appropriately contested); or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement or agreements under which any such Indebtedness was created or is
governed, or the occurrence of any other event or existence of any other
condition, the effect of any of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any such Indebtedness of the Borrower or any of its
Subsidiaries
42
shall be declared to be due and payable or required to be prepaid (other than by
a regularly scheduled payment) prior to the stated maturity thereof.
(f) Insolvency; Voluntary Proceedings. The Borrower or any of its Material
Subsidiaries shall (i) have an order for relief entered with respect to it under
the Federal Bankruptcy Laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal Bankruptcy Laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debt under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors to fail or file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.01(f), (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.01(g) or (vii) become unable to pay, not pay,
or admit in writing its inability to pay, its debts generally as they become
due.
(g) Involuntary Proceedings. Without the application, approval or consent
of the Borrower or any of its Material Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Borrower or
any of its Material Subsidiaries or any Substantial Portion of its Property, or
a proceeding described in Section 7.01(f)(iv) shall be instituted against the
Borrower or any of its Material Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of sixty consecutive days.
(h) Judgments. The Borrower or any of its Subsidiaries shall fail within
thirty days to pay, bond or otherwise discharge any judgment or order for the
payment of money of $25,000,000 or more (or multiple judgments or orders for the
payments of an aggregate amount of $25,000,000 or more), which is not stayed on
appeal or otherwise being appropriately contested in good faith and as to which
no enforcement actions have been commenced.
(i) Change in Control. Any Change in Control shall occur.
(j) ERISA. With respect to any Plan, the Borrower or any Subsidiary shall
(a) incur any "accumulated funding deficiency" (as such term is defined in
Section 302 of ERISA) in excess of $25,000,000 whether or not waived, or permit
any Unfunded Liability to exceed $25,000,000; or (b) permit the occurrence of
any Termination Event which could result in a liability to the Borrower or an
other member of the Controlled Group in excess of $25,000,000.
7.02 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 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
43
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; and
(c) 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 shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, in each case without further act of the Administrative Agent or any
Lender.
7.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 7.02 (or after the Loans have automatically become immediately due and
payable), 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, 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, 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.
ARTICLE VIII.
ADMINISTRATIVE AGENT
8.01 APPOINTMENT AND AUTHORITY. Each of the Lenders hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the Borrower shall not have rights as a third party
beneficiary of any of such provisions.
44
8.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term Lender or Lenders shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
8.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.01 and 7.02) or (ii) in the absence of
its own gross negligence or willful misconduct; provided, such limitation of
liability of the Administrative Agent shall not prohibit or limit any cause of
action the Borrower may otherwise have against any Lender. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Borrower or a Lender.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability,
45
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
8.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) reasonably believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
reasonably believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any
condition hereunder to the making of a Loan that by its terms must be fulfilled
to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of
such Loan. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in good
faith in accordance with the advice of any such counsel, accountants or experts.
8.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more subagents appointed by the
Administrative Agent. The Administrative Agent and any such subagent may perform
any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Article shall
apply to any such subagent and to the Related Parties of the Administrative
Agent and any such subagent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
8.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all
46
of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 9.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its subagents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
8.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
8.08 NO OTHER DUTIES, ETC. Anything herein to the contrary notwithstanding,
none of the Book Managers, Arrangers, Syndication Agent or Documentation Agent
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent or a Lender
hereunder.
8.09 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
the Borrower, the Administrative Agent (irrespective of whether the principal of
any Loan 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 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, 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 2.07 and 9.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
47
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 2.07 and 9.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender 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.
ARTICLE IX.
MISCELLANEOUS
9.01 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 therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower 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) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 7.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, 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;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (ii) of the third proviso to this Section 9.01)
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;
(e) change Section 2.11 or Section 7.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender; or
(f) 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,
48
waive or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender;
and, provided further, that (i) 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 (ii) the Fee Letters 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.
9.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (c) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, 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 or the Administrative Agent, to the address,
telecopier number, electronic mail address or telephone number, electronic
mail address or telephone number specified for such Person on Schedule
9.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (c) below, shall be effective as provided in such
subsection (c).
(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 the Borrower,
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) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) as set forth in Section
6.01 or pursuant to other procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is
49
incapable of receiving notices under such Article by electronic communication.
The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgment from the intended recipient (such as by
the return receipt requested function, as available, return e-mail or other
written acknowledgment), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(d) The Platform. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE
AGENT-RELATED PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Agent-Related Persons have any
liability to the Borrower, any Lender or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of the Borrower's or the Administrative Agent's
transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent-Related
Person; provided, however, that in no event shall any Agent-Related Person have
any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or
actual damages).
(e) Change of Address, Etc. Each of the Borrower and the Administrative
Agent may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower and the Administrative
Agent. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.
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(f) 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) 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 the Administrative Agent,
each Lender and the Related Parties or each of them from any losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice that such Person reasonably believes has been 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.
9.03 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.
9.04 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 reasonable Attorney Costs, and (b) to pay or reimburse
the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents during the
existence of an Event of Default or after acceleration of the Loans (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 reasonable 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 9.04 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
9.05 INDEMNIFICATION.
(a) Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold
harmless the Administrative Agent, the Arranger, each Lender and each of their
Affiliates and their directors, officers, employees, advisors and agents (each,
an "Indemnitee") from and against (and will reimburse each Indemnitee as the
same are incurred) any and all losses, claims, damages, liabilities, and
51
expenses (including, without limitation, the reasonable fees and expenses of
counsel and the allocated cost of internal counsel) that may be incurred by or
asserted or awarded against any Indemnitee, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) any matters contemplated by this Agreement, any related
transaction or any use made or proposed to be made with the proceeds thereof
unless and only to the extent that, as to any Indemnitee, it shall be determined
in a final nonappealable judgment by a court of competent jurisdiction that such
losses, claims, damages, liabilities or expenses resulted primarily from the
gross negligence or willful misconduct of such Indemnified Party.
Notwithstanding the foregoing, the Borrower shall have no obligation to any
Indemnitee in respect of losses, claims, damages, liabilities or expenses
arising from (a) disputes between Lender, the Administrative Agent and/or the
Arranger or (b) disputes between any Borrower and an Indemnitee, with respect to
which the Borrower is the prevailing party unless such losses, claims, damages,
liabilities or expenses under this clause (b) arise from the negligence (but not
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. The agreements in this
Section shall survive the resignation of the Administrative Agent, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
(b) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) of
this Section or required under Section 9.04 to be paid by it to the
Administrative Agent (or any subagent thereof) or any Related Party, each Lender
severally agrees to pay to the Administrative Agent (or any such subagent) or
such Related Party, as the case may be, such Lender's Pro Rata Share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
subagent) or against any Related Party acting for the Administrative Agent (or
any such subagent) in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section
2.10(e).
(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof.
9.06 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of
the Borrower 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,
52
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.
9.07 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. 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 the Administrative Agent and 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) Assignments by Lenders. 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 with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender, 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 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); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;
53
(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;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent unless the Person that is the proposed assignee is
itself a Lender (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 in the amount of $2,500 to be charged to the
assigning Lender (unless such assignment is to an Affiliate of such
assigning Lender), and the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
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, 9.04 and 9.05 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) Register. 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 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
at any reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or substantive
change to the Loan Documents is pending, any Lender may request and receive from
the Administrative Agent a copy of the Register.
(d) Participations. 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
54
"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 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 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 9.01 that 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 9.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.11 as though it were a Lender.
(e) Limitations upon Participant Rights. 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 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 9.15 as though it were a Lender.
(f) Certain Pledges. 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) Electronic Execution of Assignments. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
9.08 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 understood that the Persons to whom such
55
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 governmental, judicial, administrative or regulatory
authority to which a Lender or any of its Affiliates is subject (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower. For purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or any of their respective businesses, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrower, provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified 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.
9.09 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, any such notice being waived by the Borrower 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 Borrower against any and all Obligations owing to such Lender
hereunder or under any 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.
9.10 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
56
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.
9.11 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.
9.12 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.
9.13 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 Loan, and shall continue in full force and effect
as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.
9.14 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.
9.15 TAX FORMS. (a) (i) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the 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
57
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 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 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 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 9.15(a) or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 9.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 9.15(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 9.15(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
58
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 9.15(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 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 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 Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
9.16 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 (with the assignment fee to be paid by the Borrower in such instance)
pursuant to Section 9.07(b) to one or more other Lenders or Eligible Assignees
procured by the Borrower; provided, however, that if the Borrower elects to
exercise such right with respect to any Lender pursuant to Section 3.06(b), they
shall be obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The 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), and (y) 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.
9.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF ILLINOIS 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.
59
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS
SITTING IN CHICAGO OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER 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 OF THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
9.18 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.
9.19 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) 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, and
the Borrower covenants and agrees that it will provide such information to such
Lender or the Administrative Agent upon reasonable request.
60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NUVEEN INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Vice President and Treasurer
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-2
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇-▇
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇.,
as Syndication Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
S-4
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ Horn
Title: Vice President
S-5
STATE TRUST BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
S-6
UBS LOAN FINANCE LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Director Banking Products
Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director Banking Products
Services, US
S-7
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
S-8
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇-▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
S-10
EXHIBIT B
FORM OF NOTE
___________, 2005
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
pay to _____________________ or registered assigns (the "Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Loan from time to time made by the Lender to the Borrower under
that certain Credit Agreement dated as of September 30, 2005 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement"; the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, Bank
of America, N.A., as Administrative Agent, and Citibank, N.A., as Syndication
Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. Upon the occurrence and continuation of one or
more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.
NUVEEN INVESTMENTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-2
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF OUTSTANDING
PRINCIPAL OR PRINCIPAL
TYPE OF LOAN AMOUNT OF LOAN END OF INTEREST INTEREST PAID BALANCE THIS
DATE MADE MADE PERIOD THIS DATE DATE NOTATION MADE BY
---- ------------ -------------- --------------- ------------- ------------ ----------------
B-3
