CREDIT AGREEMENT Dated as of October 17, 2005, Among AFFINION GROUP HOLDINGS, INC., AFFINION GROUP, INC., as Borrower, THE LENDERS PARTY HERETO, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent, DEUTSCHE BANK SECURITIES INC., as...
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Exhibit 10.1
Β
$960,000,000
Dated as of OctoberΒ 17, 2005,
Among
AFFINION GROUP HOLDINGS, INC.,
AFFINION GROUP, INC.,
as Borrower,
THE LENDERS PARTY HERETO,
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Administrative Agent,
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
and
BNP PARIBAS SECURITIES CORP.,
as Documentation Agents
Β
CREDIT SUISSE FIRST BOSTON LLC,
as Joint Lead Arranger and Joint Bookrunner
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger and Joint Bookrunner
Β
Table of Contents
TABLE OF CONTENTS
Β
ARTICLE I | Β Β | |
Definitions | Β Β | |
SECTION 1.01. Defined Terms |
Β Β | 1 |
SECTION 1.02. Terms Generally |
Β Β | 51 |
SECTION 1.03. Effectuation of Transfers |
Β Β | 51 |
SECTION 1.04. Currency Translation |
Β Β | 51 |
ARTICLE II | Β Β | |
The Credits | Β Β | |
SECTION 2.01. Commitments |
Β Β | 52 |
SECTION 2.02. Loans and Borrowings |
Β Β | 52 |
SECTION 2.03. Requests for Borrowings |
Β Β | 53 |
SECTION 2.04. Swingline Loans |
Β Β | 54 |
SECTION 2.05. Letters of Credit |
Β Β | 55 |
SECTION 2.06. Funding of Borrowings |
Β Β | 60 |
SECTION 2.07. Interest Elections |
Β Β | 60 |
SECTION 2.08. Termination and Reduction of Commitments |
Β Β | 62 |
SECTION 2.09. Repayment of Loans; Evidence of Debt |
Β Β | 62 |
SECTION 2.10. Repayment of Term Loans and Revolving Facility Loans |
Β Β | 63 |
SECTION 2.11. Prepayment of Loans |
Β Β | 65 |
SECTION 2.12. Fees |
Β Β | 66 |
SECTION 2.13. Interest |
Β Β | 67 |
SECTION 2.14. Alternate Rate of Interest |
Β Β | 68 |
SECTION 2.15. Increased Costs |
Β Β | 68 |
SECTION 2.16. Break Funding Payments |
Β Β | 70 |
SECTION 2.17. Taxes |
Β Β | 70 |
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
Β Β | 71 |
SECTION 2.19. Mitigation Obligations; Replacement of Lenders |
Β Β | 73 |
SECTION 2.20. Incremental Commitments |
Β Β | 75 |
SECTION 2.21. Illegality |
Β Β | 77 |
ARTICLE III | Β Β | |
Representations and Warranties | Β Β | |
SECTION 3.01. Organization; Powers |
Β Β | 77 |
SECTION 3.02. Authorization |
Β Β | 77 |
SECTION 3.03. Enforceability |
Β Β | 78 |
SECTION 3.04. Governmental Approvals |
Β Β | 78 |
SECTION 3.05. Financial Statements |
Β Β | 78 |
SECTION 3.06. No Material Adverse Change or Material Adverse Effect |
Β Β | 79 |
SECTION 3.07. Title to Properties; Possession Under Leases |
Β Β | 80 |
SECTION 3.08. Subsidiaries |
Β Β | 80 |
Β
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SECTION 3.09. Litigation; Compliance with Laws |
Β Β | 81 |
SECTION 3.10. Federal Reserve Regulations |
Β Β | 81 |
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act |
Β Β | 81 |
SECTION 3.12. Use of Proceeds |
Β Β | 82 |
SECTION 3.13. Tax Returns |
Β Β | 82 |
SECTION 3.14. No Material Misstatements |
Β Β | 82 |
SECTION 3.15. Employee Benefit Plans |
Β Β | 83 |
SECTION 3.16. Environmental Matters |
Β Β | 84 |
SECTION 3.17. Security Documents |
Β Β | 84 |
SECTION 3.18. Location of Real Property |
Β Β | 86 |
SECTION 3.19. Solvency |
Β Β | 86 |
SECTION 3.20. Labor Matters |
Β Β | 86 |
SECTION 3.21. Insurance |
Β Β | 87 |
SECTION 3.22. Representations and Warranties in Purchase Agreement |
Β Β | 87 |
SECTION 3.23. Senior Debt |
Β Β | 87 |
SECTION 3.24. No Violation |
Β Β | 87 |
SECTION 3.25. Holdings Indebtedness |
Β Β | 87 |
ARTICLE IV | Β Β | |
Conditions of Lending | Β Β | |
SECTION 4.01. All Credit Events |
Β Β | 88 |
SECTION 4.02. First Credit Event |
Β Β | 89 |
ARTICLE V | Β Β | |
Affirmative Covenants | Β Β | |
SECTION 5.01. Existence; Businesses and Properties |
Β Β | 92 |
SECTION 5.02. Insurance |
Β Β | 93 |
SECTION 5.03. Taxes |
Β Β | 94 |
SECTION 5.04. Financial Statements, Reports, etc. |
Β Β | 94 |
SECTION 5.05. Litigation and Other Notices |
Β Β | 97 |
SECTION 5.06. Compliance with Laws |
Β Β | 97 |
SECTION 5.07. Maintaining Records; Access to Properties and Inspections |
Β Β | 97 |
SECTION 5.08. Payment of Obligations |
Β Β | 97 |
SECTION 5.09. Use of Proceeds |
Β Β | 98 |
SECTION 5.10. Compliance with Environmental Laws |
Β Β | 98 |
SECTION 5.11. Further Assurances; Additional Security |
Β Β | 98 |
SECTION 5.12. Fiscal Year; Accounting |
Β Β | 100 |
SECTION 5.13. Rating |
Β Β | 100 |
SECTION 5.14. Lender Meetings |
Β Β | 100 |
SECTION 5.15. Compliance with Material Contracts |
Β Β | 101 |
ARTICLE VI | Β Β | |
Negative Covenants | Β Β | |
SECTION 6.01. Indebtedness |
Β Β | 101 |
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SECTION 6.02. Liens |
Β Β | 105 |
SECTION 6.03. Sale and Lease-Back Transactions |
Β Β | 110 |
SECTION 6.04. Investments, Loans and Advances |
Β Β | 110 |
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions |
Β Β | 113 |
SECTION 6.06. Dividends and Distributions |
Β Β | 115 |
SECTION 6.07. Transactions with Affiliates |
Β Β | 118 |
SECTION 6.08. Business of Holdings, the Borrower and the Subsidiaries |
Β Β | 121 |
SECTION 6.09. Limitation on Modifications and Payments of Indebtedness; Modifications of Β Β Β Β Β Β Certificate of Incorporation, By-Laws and Certain Other Agreements; etc. |
Β Β | 122 |
SECTION 6.10. Consolidated Leverage Ratio |
Β Β | 125 |
SECTION 6.11. Interest Coverage Ratio |
Β Β | 125 |
SECTION 6.12. Swap Agreements |
Β Β | 125 |
SECTION 6.13. Designated Senior Debt |
Β Β | 125 |
ARTICLE VII | Β Β | |
Events of Default | Β Β | |
SECTION 7.01. Events of Default |
Β Β | 126 |
SECTION 7.02. Exclusion of Certain Subsidiaries |
Β Β | 129 |
SECTION 7.03. Right to Cure |
Β Β | 129 |
ARTICLE VIII | Β Β | |
The Agents | Β Β | |
SECTION 8.01. Appointment |
Β Β | 130 |
SECTION 8.02. Delegation of Duties |
Β Β | 130 |
SECTION 8.03. Exculpatory Provisions |
Β Β | 131 |
SECTION 8.04. Reliance by Administrative Agent |
Β Β | 131 |
SECTION 8.05. Notice of Default |
Β Β | 132 |
SECTION 8.06. Non-Reliance on Agents and Other Lenders |
Β Β | 132 |
SECTION 8.07. Indemnification |
Β Β | 132 |
SECTION 8.08. Agent in Its Individual Capacity |
Β Β | 133 |
SECTION 8.09. Successor Administrative Agent |
Β Β | 133 |
SECTION 8.10. Agents and Arrangers |
Β Β | 134 |
ARTICLE IX | Β Β | |
Miscellaneous | Β Β | |
SECTION 9.01. Notices |
Β Β | 134 |
SECTION 9.02. Survival of Agreement |
Β Β | 134 |
SECTION 9.03. Binding Effect |
Β Β | 135 |
SECTION 9.04. Successors and Assigns |
Β Β | 135 |
SECTION 9.05. Expenses; Indemnity |
Β Β | 138 |
SECTION 9.06. Right of Set-off |
Β Β | 140 |
SECTION 9.07. Applicable Law |
Β Β | 140 |
SECTION 9.08. Waivers; Amendment |
Β Β | 140 |
Β
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SECTION 9.09. Interest Rate Limitation |
Β Β | 142 |
SECTION 9.10. No Liability of the Issuing Banks |
Β Β | 143 |
SECTION 9.11. Entire Agreement |
Β Β | 143 |
SECTION 9.12. WAIVER OF JURY TRIAL |
Β Β | 143 |
SECTION 9.13. Severability |
Β Β | 144 |
SECTION 9.14. Counterparts |
Β Β | 144 |
SECTION 9.15. Headings |
Β Β | 144 |
SECTION 9.16. Jurisdiction; Consent to Service of Process |
Β Β | 144 |
SECTION 9.17. Confidentiality |
Β Β | 144 |
SECTION 9.18. Direct Website Communications |
Β Β | 145 |
SECTION 9.19. Release of Liens and Guarantees |
Β Β | 146 |
SECTION 9.20. Power of Attorney |
Β Β | 147 |
SECTION 9.21. U.S.A. Patriot Act |
Β Β | 147 |
Β
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Exhibits and Schedules
Β
Exhibit A |
Β Β | Form of Assignment and Acceptance |
Exhibit B |
Β Β | Form of Administrative Questionnaire |
Exhibit C-1 |
Β Β | Form of Borrowing Request |
Exhibit C-2 |
Β Β | Form of Swingline Borrowing Request |
Exhibit D |
Β Β | Form of Guarantee and Collateral Agreement |
Exhibit E |
Β Β | Intellectual Property Security Agreement |
ScheduleΒ 1.01(a) |
Β Β | EBITDA Scheduled Adjustments |
ScheduleΒ 1.01(b) |
Β Β | Immaterial Subsidiaries |
ScheduleΒ 1.01(c) |
Β Β | Subsidiary Spin-off |
ScheduleΒ 1.01(d) |
Β Β | Unrestricted Subsidiaries |
ScheduleΒ 2.01 |
Β Β | Commitments and Lenders |
ScheduleΒ 2.05 |
Β Β | Issuing Banks |
ScheduleΒ 3.01 |
Β Β | Organization and Good Standing |
ScheduleΒ 3.04 |
Β Β | Governmental Approvals |
ScheduleΒ 3.05(a) |
Β Β | Financial Statements |
ScheduleΒ 3.05(b) |
Β Β | Liabilities/Long-Term Obligations |
ScheduleΒ 3.07(b) |
Β Β | Possession under Leases |
ScheduleΒ 3.08(a) |
Β Β | Subsidiaries |
ScheduleΒ 3.08(b) |
Β Β | Subscriptions |
ScheduleΒ 3.13 |
Β Β | Taxes |
ScheduleΒ 3.15 |
Β Β | Employee Benefit Plans |
ScheduleΒ 3.16 |
Β Β | Environmental Matters |
ScheduleΒ 3.20 |
Β Β | Labor Matters |
ScheduleΒ 3.21 |
Β Β | Insurance |
ScheduleΒ 4.02(b) |
Β Β | Local U.S. and/or Foreign Counsel |
ScheduleΒ 4.02(e) |
Β Β | Subsidiary Collateral |
ScheduleΒ 6.01 |
Β Β | Indebtedness |
ScheduleΒ 6.02(a) |
Β Β | Liens |
ScheduleΒ 6.04 |
Β Β | Investments; Intercompany Loans |
ScheduleΒ 6.07 |
Β Β | Transactions with Affiliates |
ScheduleΒ 6.09(c) |
Β Β | Contractual Encumbrances and Restrictions |
Β
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CREDIT AGREEMENT (this βAgreementβ), dated as of OctoberΒ 17, 2005, among AFFINION GROUP HOLDINGS, INC., a Delaware corporation (βHoldingsβ), AFFINION GROUP, INC., a Delaware corporation (the βBorrowerβ), the LENDERS (as hereinafter defined) from time to time party hereto, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as administrative agent for the Lenders (βCredit Suisseβ or, together with any successor administrative agent appointed pursuant hereto, in such capacity, the βAdministrative Agentβ), DEUTSCHE BANK SECURITIES INC., as syndication agent (in such capacity, the βSyndication Agentβ) and BANK OF AMERICA, N.A. and BNP PARIBAS SECURITIES CORP., as documentation agents (in such capacity, each, a βDocumentation Agentβ and together, the βDocumentation Agentsβ).
WHEREAS, Holdings was organized by the Fund, to acquire (the βAcquisitionβ) (a)Β all of the Equity Interests in Cendant Marketing Group, LLC (formerly, Cendant Membership Services Holdings LLC, βCMGβ), a Delaware limited liability company and a direct wholly owned subsidiary of Cendant Corporation, a Delaware corporation (the βSellerβ), and (b)Β 10,000,000 ordinary shares of Β£1 each in the capital of Cendant International Holdings Limited, a private company limited by shares incorporated in England and Wales with registered number 3458969 and an indirect wholly owned subsidiary of the Seller (βCIHβ and, together with CMG, the βCompaniesβ);
WHEREAS, in order to effect the Acquisition, Holdings created the Borrower, its wholly owned Subsidiary, and the Seller, Holdings and the Borrower entered into the Purchase Agreement, dated as of JulyΒ 26, 2005 (as amended by Amendment No.Β 1, dated as of the date hereof, and as further amended from time to time in accordance with the terms hereof and thereof, the βPurchase Agreementβ), setting forth the terms and conditions of the Acquisition;
WHEREAS, in connection with the consummation of the Acquisition and the payment of certain fees and expenses related thereto, the Borrower has requested the Lenders to extend credit in the form of (a)Β Tranche B Term Loans on the Closing Date in an aggregate principal amount not in excess of $860,000,000 and (b)Β Revolving Facility Loans and Letters of Credit at any time and from time to time prior to the Revolving Facility Maturity Date in an aggregate principal amount at any time outstanding not in excess of $100,000,000.
NOW, THEREFORE, the Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:
βABRβ shall mean, for any day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of (a)Β the rate of interest per annum determined by Credit Suisse as its prime rate in effect at its principal office in
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New York, New York, and notified to the Borrower and (b)Β Β 1/2 of 1%Β per annum above the Federal Funds Rate.
βABR Borrowingβ shall mean a Borrowing comprised of ABR Loans.
βABR Loanβ shall mean any ABR Term Loan, any ABR Revolving Loan or any Swingline Loan to the Borrower.
βABR Revolving Borrowingβ shall mean a Borrowing comprised of ABR Revolving Loans.
βABR Revolving Loanβ shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
βABR Term Loanβ shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
βAcquisitionβ shall have the meaning assigned to such term in the recitals hereto.
βAdditional Mortgageβ shall have the meaning assigned to such term in SectionΒ 5.11(c).
βAdjusted Eurocurrency Rateβ shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum equal to the rate per annum obtained by dividing (i)Β the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time), on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankersβ Association Interest Settlement Rates for deposits in U.S. Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankersβ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such interest period or to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in U.S. Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period, by (ii)Β a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
βAdjustment Dateβ shall have the meaning assigned to such term in the definition of the term βPricing Grid.β
βAdministrative Agentβ shall have the meaning assigned to such term in the preamble hereto.
βAdministrative Agent Feesβ shall have the meaning assigned to such term in SectionΒ 2.12(c).
Β
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βAdministrative Questionnaireβ shall mean an Administrative Questionnaire in the form of Exhibit B or in such other form as may be supplied by the Administrative Agent.
βAffiliateβ shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified.
βAgent Partiesβ shall have the meaning assigned to such term in SectionΒ 9.18(c).
βAgentsβ shall mean the Administrative Agent, the Syndication Agent and the Documentation Agents.
βAgreementβ shall have the meaning assigned to such term in the preamble hereto, as amended from time to time in accordance with the terms hereof.
βApplicable Insurance Laws and Regulationsβ shall mean any laws, rules and regulations of any government or governmental authority or agency, including of any Applicable Insurance Regulatory Authority, applicable to the Insurance Business or the Insurance Subsidiaries.
βApplicable Insurance Regulatory Authorityβ shall mean, when used with respect to any Insurance Subsidiary, the insurance department or similar administrative authority or agency located in (x)Β the state or other jurisdiction in which such Insurance Subsidiary is domiciled or (y)Β to the extent asserting regulatory jurisdiction over such Insurance Subsidiary, the insurance department, authority or agency in each state or other jurisdiction in which such Insurance Subsidiary is licensed, and shall include any Federal insurance regulatory department, authority or agency that may be created in the future and that asserts regulatory jurisdiction over such Insurance Subsidiary.
βApplicable Marginβ shall mean for any day (a)Β with respect to any Eurocurrency Loan, 2.75%Β per annum; (b)Β with respect to any ABR Loan, 1.75%Β per annum; and (c)Β with respect to the Commitment Fee, 0.50%Β per annum; provided, that on and after the first Adjustment Date occurring after the delivery of financial statements pursuant to SectionΒ 5.04 for the first fiscal quarter of the Borrower commencing after the Closing Date, the Applicable Margin with respect to Revolving Facility Loans and Swingline Loans will be determined pursuant to the Pricing Grid.
βApplicable Percentageβ shall mean, with respect to any Revolving Lender, the percentage of the total Revolving Commitments represented by such Lenderβs Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the relative amounts of the Revolving Facility Exposures of the Revolving Lenders.
βApproved Fundβ shall have the meaning assigned to such term in SectionΒ 9.04(b).
βAsset Acquisitionβ shall mean, for purposes of calculating any financial ratios, any Permitted Business Acquisition the aggregate consideration for which exceeds $1,000,000.
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βAsset Dispositionβ shall mean, for purposes of calculating any financial ratios, any sale, transfer or other disposition by the Borrower or any Subsidiary to any person other than the Borrower or any Subsidiary, to the extent otherwise permitted hereunder of any asset or group of related assets (other than inventory or other assets sold, transferred or otherwise disposed of in the ordinary course of business) in one or a series of related transactions, the Net Proceeds from which exceed $1,000,000.
βAssigneeβ shall have the meaning assigned to such term in SectionΒ 9.04(b).
βAssignment and Acceptanceβ shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent and the Borrower (if required by SectionΒ 9.04), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.
βAvailable Free Cash Flow Amountβ shall mean, at any time of determination, an amount equal to, without duplication:
(a) the Cumulative Retained Excess Cash Flow Amount on such date of determination (which may be a negative amount), plus
(b) the aggregate amount of proceeds received after the Closing Date and prior to such date of determination that would have constituted Net Proceeds pursuant to clause (a)Β of the definition thereof except for the operation of clause (x)Β or (y)Β of the second proviso thereof (the βBelow-Threshold Asset Sale Proceedsβ), plus
(c) the Cumulative Equity Proceeds Amount on such date of determination, minus
(d) the cumulative amount of Investments pursuant to SectionΒ 6.04(b)(iv)(B) from and after the Closing Date and on or prior to such time, minus
(e) the cumulative amount of dividends paid and distributions made pursuant to SectionΒ 6.06(h) from and after the Closing Date and on or prior to such time, minus
(f) the cumulative amount of the Available Free Cash Flow Amount immediately prior to the time of such determination used to repay, repurchase, redeem, acquire, cancel or terminate Indebtedness pursuant to SectionΒ 6.09(b)(i) from and after the Closing Date and on or prior to such time;
provided, however, for purposes of determining the amount of Available Free Cash Flow Amount available for dividends and distributions under SectionΒ 6.06(h), the calculation of the Available Free Cash Flow Amount shall not include any Below-Threshold Asset Sale Proceeds to the extent the cumulative amount of such Below-Threshold Asset Sale Proceeds exceeds the sum of the cumulative amounts referred to in clauses (d), (e)Β and (f)Β above.
βAvailable Unused Commitmentβ shall mean, with respect to a Revolving Facility Lender at any time, an amount equal to the amount by which (a)Β the aggregate amount of
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the Revolving Facility Commitment of such Revolving Facility Lender at such time exceeds (b)Β the Revolving Facility Exposure of such Revolving Facility Lender at such time.
βBanking Subsidiaryβ shall mean any Subsidiary that is an Insured Depository Institution (as defined in SectionΒ 3 of the Federal Deposit Insurance Act, 12 U.S.C. Β§ 1813).
βBoardβ shall mean the Board of Governors of the Federal Reserve System of the United States of America.
βBoard of Directorsβ shall mean, as to any person, the board of directors or managers, as applicable, of such person (or, if such person is a partnership, the board of directors or other governing body of the general partner of such person) or any duly authorized committee thereof.
βBorrowerβ shall have the meaning assigned to such term in the preamble hereto.
βBorrowingβ shall mean a group of Loans of a single Type, Class and currency and made on a single date to a single Borrower and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.
βBorrowing Minimumβ shall mean $5,000,000.
βBorrowing Multipleβ shall mean $1,000,000.
βBorrowing Requestβ shall mean a request by the Borrower in accordance with the terms of SectionΒ 2.03 and substantially in the form of Exhibit C-1.
βBridge Facility Agentβ shall mean Credit Suisse or any successor administrative agent appointed pursuant the Bridge Loan Agreement.
βBridge Financingβ shall mean $383,612,600 in senior subordinated increasing rate bridge loans made to the Borrower in accordance with the provisions of the Bridge Loan Agreement, together with accrued interest thereon increasing the principal amount thereof to the extent permitted to be paid in the form of senior subordinated bridge increasing rate bridge loans, if any, under the Bridge Loan Agreement, including any senior subordinated increasing rate term loans into which any such senior subordinated increasing rate bridge loans are converted in accordance with the provisions of the Bridge Loan Agreement, together with accrued interest thereon increasing the principal amount thereof to the extent permitted to be paid in the form of senior subordinated increasing rate term loans, if any, under the Bridge Loan Agreement; provided, that no Bridge Financing shall be deemed to be outstanding after 100% of the aggregate principal amount of all bridge loans and term loans under the Bridge Loan Agreement have been exchanged for Senior Subordinated Exchange Notes.
βBridge Financing Covenant Releaseβ shall mean the earliest of (a)Β the one-year anniversary of the Closing Date, (b)Β the date on which no Bridge Financing remains outstanding, and (c)Β solely as relating to any specific transaction, and limited to such transaction, the covenants set forth in the Bridge Loan Agreement not prohibiting such transaction (and permitting such transaction, to the extent subject to any financial ratio conditions, in accordance
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with the terms thereof), including, without limitation, as a result of any waiver or amendment by the lenders holding the Bridge Financing under the Bridge Loan Agreement of any such covenants, or any other consent having the effect thereof, in order to permit such transaction, such waiver, amendment or consent to be in accordance with the provisions of the Bridge Loan Agreement.
βBridge Financing Documentsβ shall mean the Bridge Loan Agreement and the other βLoan Documentsβ as defined in the Bridge Loan Agreement.
βBridge Loan Agreementβ means the Senior Subordinated Bridge Loan Agreement dated as of OctoberΒ 17, 2005 among Holdings, the Borrower, Credit Suisse, Deutsche Bank AG Cayman Islands Branch, Banc of America Bridge LLC and BNP Paribas as initial bridge lenders, and the Bridge Facility Agent in respect of the Bridge Facility, as amended and supplemented from time to time in accordance with the terms hereof and thereof.
βBudgetβ shall have the meaning assigned to such term in SectionΒ 5.04(f).
βBusiness Dayβ shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided, that when used in connection with a Eurocurrency Loan, the term βBusiness Dayβ shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.
βCapital Expendituresβ shall mean, for any person in respect of any period, the aggregate of all expenditures incurred by such person during such period that, in accordance with GAAP, are or should be included in βadditions to property, plant or equipmentβ or similar items reflected in the statement of cash flows of such person; provided, however, that Capital Expenditures shall not include:
(a) expenditures with funds that would have constituted Net Proceeds under clause (a)Β of the definition of the term βNet Proceedsβ but for the application of the first proviso to such clause (a));
(b) expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower and the Subsidiaries within 12 months of receipt of such proceeds;
(c) interest capitalized during such period;
(d) expenditures that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding Holdings, the Borrower or any Subsidiary) and for which none of Holdings, the Borrower or any Subsidiary has provided or is required to provide or incur or is otherwise liable for, directly or indirectly,
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any consideration or obligation to such third party or any other person (whether before, during or after such period);
(e) the book value of any asset owned by such person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided, that (i)Β any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (ii)Β such book value shall have been included in Capital Expenditures when such asset was originally acquired;
(f) the purchase price of equipment purchased during such period to the extent that the consideration therefor consists of any combination of (i)Β used or surplus equipment traded in at the time of such purchase and (ii)Β the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;
(g) Investments in respect of a Permitted Business Acquisition; or
(h) the Acquisition.
βCapital Lease Obligationsβ of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
βCash Interest Expenseβ shall mean, with respect to any person on a consolidated basis for any period, Interest Expense for such period, less, without duplication, the sum of (a)Β pay-in-kind Interest Expense or other noncash Interest Expense (including as a result of the effects of purchase accounting), (b)Β to the extent included in Interest Expense, the amortization of any financing fees paid by, or on behalf of, Holdings, the Borrower or any Subsidiary, including such fees paid in connection with the Transactions, (c)Β the amortization of debt discounts, if any, or fees in respect of Swap Agreements and (d)Β cash interest income of Holdings, the Borrower and the Subsidiaries for such period; provided, that Cash Interest Expense shall exclude any one-time financing fees paid in connection with the Transactions or one-time amendment fees paid in connection with any amendment of this Agreement.
βCendantβ shall mean Cendant Corporation, a Delaware corporation.
A βChange in Controlβ shall be deemed to occur if:
(a) a majority of the seats (other than vacant seats) on the Board of Directors of Holdings shall at any time be occupied by persons who were neither (a)Β nominated by the Board of Directors of Holdings or a Permitted Holder, (b)Β appointed by directors so nominated nor (c)Β appointed by the Fund or a Fund Affiliate; or
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(b) a βchange of controlβ shall occur under (i)Β the Senior Notes, the Bridge Loan Agreement, the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect of any of the foregoing, (ii)Β the Seller Preferred Equity or (iii)Β any Material Indebtedness; or
(c) Holdings shall fail to own, directly or indirectly, beneficially and of record, 100% of all issued and outstanding Equity Interests of the Borrower; or
(d) Permitted Holders, collectively, shall fail to own beneficially, directly or indirectly, in the aggregate Equity Interests representing at least 51% of (i)Β the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings or (ii)Β the common stock represented by the issued and outstanding Equity Interests of Holdings.
βChange in Lawβ shall mean (a)Β the adoption of any law, rule or regulation after the Closing Date, (b)Β any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c)Β compliance by any Lender or Issuing Bank (or, for purposes of SectionΒ 2.15(b), by any lending office of such Lender or by such Lenderβs or Issuing Bankβs holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date.
βChargesβ shall have the meaning assigned to such term in SectionΒ 9.09.
βCIHβ shall have the meaning assigned to such term in the recitals hereto.
βClassβ when used in reference to (a)Β any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Facility Loans, Tranche B Term Loans, Other Revolving Facility Loans, Other Term Loans or Swingline Loans and (b)Β any Commitment, refers to whether such Commitment is a Revolving Facility Commitment, Tranche B Commitment, Incremental Revolving Facility Commitment with respect to Other Revolving Facility Loans or Incremental Term Loan Commitment with respect to Other Term Loans. Other Term Loans (together with the Incremental Term Loan Commitments in respect thereof) and Other Revolving Facility Loans (together with the Incremental Revolving Facility Commitments in respect thereof) that have different terms and conditions shall be construed to be in different Classes.
βClosing Dateβ shall mean OctoberΒ 17, 2005.
βCMGβ shall have the meaning assigned to such term in the recitals hereto.
βCodeβ shall mean the Internal Revenue Code of 1986, as amended from time to time.
βCollateralβ shall mean all βCollateralβ and βMortgaged Propertyβ referred to in the Security Documents (including the Mortgaged Properties) and all other property that is or is intended to be subject to any Lien in favor of the Administrative Agent or any Subagent for the benefit of the Lenders.
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βCollateral and Guarantee Requirementβ shall mean, at any time, the requirement that:
(a) on the Closing Date, the Administrative Agent shall have received (i)Β from Holdings and each other Loan Party a counterpart of the Guarantee and Collateral Agreement, duly executed and delivered on behalf of such person and (ii)Β (except as provided in SectionΒ 4.02(e)), from each Loan Party that directly owns any Equity Interests of a Foreign Subsidiary (other than any Foreign Subsidiary organized under the laws of an Excluded Jurisdiction), a counterpart of a Foreign Pledge Agreement, duly executed and delivered on behalf of such person;
(b) on the Closing Date (except as provided in SectionΒ 4.02(e) with respect to any Equity Interests issued by a Foreign Subsidiary), all outstanding Equity Interests of the Borrower, all other outstanding Equity Interests directly owned by any Loan Party (other than (x)Β the Equity Interests of a Banking Subsidiary or an Insurance Subsidiary to the extent that a pledge of such Equity Interests violates applicable law, (y)Β in the case of Holdings, the Equity Interests of a special purpose person the sole assets of which are the Netcentives Assets, and (z)Β the Equity Interests of the Unrestricted Travel Rewards Subsidiary), and all Indebtedness owing to any Loan Party (other than intercompany indebtedness, which is governed by clause (c)Β below) shall have been pledged pursuant to the Guarantee and Collateral Agreement (or other applicable Security Document) and the Administrative Agent shall have received certificates or other instruments representing or evidencing all such Equity Interests (other than (i)Β uncertificated Equity Interests, (ii)Β Equity Interests issued by Foreign Subsidiaries organized under the laws of a jurisdiction where receipt of such certificates or other instruments is not required for perfection of security interests in such Equity Interests and (iii)Β Equity Interests issued by a Foreign Subsidiary organized under the laws of an Excluded Jurisdiction) and any notes or other instruments representing such Indebtedness in excess of $10,000,000, together with stock powers, note powers or other instruments of transfer with respect thereto endorsed in blank, provided, that in no event shall more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary be pledged to secure Obligations of the Loan Parties;
(c) (i)Β all Indebtedness of Holdings, the Borrower and each Subsidiary (other than (x)Β intercompany Indebtedness incurred in the ordinary course of business in connection with the cash management operations and intercompany sales of the Borrower and each Subsidiary, (y)Β any Indebtedness not exceeding $1,000,000 and (z)Β to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to any Loan Party (A)Β shall be evidenced by a promissory note or an instrument in form satisfactory to the Administrative Agent and (B)Β except for (x)Β Indebtedness of any Foreign Subsidiary owing to the Borrower or a Domestic Subsidiary for so long as the pledge of such Indebtedness would be deemed an incurrence of Indebtedness under the Senior Notes or the Senior Subordinated Notes and (y)Β Indebtedness of the Borrower or any Domestic Subsidiary owing to the Borrower or a Domestic Subsidiary at any time that the pledge of such Indebtedness would be deemed an incurrence of Indebtedness under the Senior Notes Indenture or the Senior Subordinated Notes Indenture and, in each case, the Indebtedness arising from such pledge is not expressly permitted Indebtedness
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under the Senior Notes Indenture or the Senior Subordinated Notes Indentures as βPermitted Debtβ (or similar term) and could not otherwise be incurred in accordance with the terms of the Senior Notes Indenture or the Senior Subordinated Notes Indenture, shall have been pledged pursuant to the Guarantee and Collateral Agreement (or other applicable Security Document), and (ii)Β the Administrative Agent shall have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank (other than with respect to any such intercompany debt the perfection of the pledge of which does not require delivery to the Administrative Agent);
(d) except as otherwise contemplated by any Security Document (including with regard to deposit accounts), all documents and instruments, (including, in the United States of America, filings of Uniform Commercial Code financing statements and filings with the United States Copyright Office and the United States Patent and Trademark Office) and all other actions required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or the recording or taken concurrently with, or promptly following, the execution and delivery of each such Security Document;
(e) except as set forth pursuant to any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (i)Β the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (ii)Β the performance of its obligations thereunder; and
(f) subject to SectionΒ 5.11(g), in the case of any person that (i)Β becomes a Subsidiary Loan Party after the Closing Date, the Administrative Agent shall have received from such Subsidiary Loan Party, (A)Β a supplement to the Guarantee and Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such person, (B)with respect to any Foreign Pledge Agreement that the Administrative Agent determines, based on the advice of counsel, to be necessary or advisable in connection with the pledge of Equity Interests or Indebtedness of a Foreign Subsidiary (other than a pledge of Equity Interests of any Foreign Subsidiary that is not directly owned by it or that is organized under the laws of an Excluded Jurisdiction) owned by such Subsidiary Loan Party, a counterpart thereof, duly executed and delivered on behalf of such person, (C)Β such other Security Documents as may be required to be delivered pursuant to SectionΒ 5.11, and (D)Β evidence that any other requirements of SectionΒ 5.11 shall have been complied with and (ii)Β becomes such a Subsidiary Loan Party, the Administrative Agent shall have received from the parent of such Subsidiary Loan Party, (A)Β supplements to the applicable Security Documents pursuant to which it shall have pledged the Equity Interests in the other Subsidiaries owned by it, or other Security Documents, effecting the pledge of such Equity Interests in favor of the Administrative Agent, subject to the same exceptions and limitations as set forth in paragraph (c)Β above, (B)Β certificates and instruments representing or evidencing such
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Equity Interests, subject to the same exceptions and limitations as set forth in paragraph (c)Β above.
βCommitment Feeβ shall have the meaning assigned to such term in SectionΒ 2.12(a).
βCommitmentsβ shall mean (a)Β with respect to any Lender, such Lenderβs Revolving Facility Commitment, Tranche B Commitment, Incremental Revolving Facility Commitment and/or Incremental Term Loan Commitment, (b)Β with respect to the Swingline Lender, its Swingline Commitment and (c)Β with respect to any Issuing Bank, such Issuing Bankβs L/C Commitment.
βCommunicationsβ shall have the meaning assigned to such term in SectionΒ 9.18(a).
βCompaniesβ shall have the meaning assigned to such term in the recitals hereto.
βConduit Lenderβ shall mean any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender; provided, further that no Conduit Lender shall (a)Β be entitled to receive any greater amount pursuant to SectionΒ 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b)Β be deemed to have any Commitment.
βConsolidated Debtβ at any date shall mean the sum of (without duplication) all Indebtedness (other than letters of credit, to the extent undrawn) consisting of Capital Lease Obligations, bankersβ acceptances, Indebtedness for borrowed money, Disqualified Stock and Indebtedness in respect of the deferred purchase price of property or services of the Borrower and the Subsidiaries determined on a consolidated basis on such date.
βConsolidated Fixed Chargesβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the sum, without duplication, of:
(a) the consolidated interest expense (net of interest income) to the extent it relates to Indebtedness of the Borrower and the Subsidiaries for such period, and to the extent such expense was deducted in computing Consolidated Net Income, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankersβ acceptance financings, and net of the effect of all payments made or received pursuant to obligations under any Swap Agreement, but excluding the
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amortization or write-off of deferred financing fees or expenses of any bridge or other financing fee in connection with the Transactions; plus
(b) the consolidated interest of the Borrower and the Subsidiaries that was capitalized during such period; plus
(c) any interest expense on Indebtedness of another person that is Guaranteed by the Borrower and the Subsidiaries or secured by a Lien on assets of the Borrower and the Subsidiaries, whether or not such Guarantee or Lien is called upon;
in each case, on a consolidated basis and in accordance with GAAP.
βConsolidated Leverage Ratioβ shall mean, on any date, the ratio of (a)Β Consolidated Total Debt as of such date to (b)Β EBITDA for the period of four consecutive fiscal quarters most recently ended as of such date, all determined on a consolidated basis in accordance with GAAP; provided, that to the extent any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions that require a waiver or a consent of the provisions of SectionΒ 6.04 or SectionΒ 6.05 by the Required Lenders pursuant to SectionΒ 9.08 and such waiver or consent has been obtained in accordance with the terms hereof), including the Transactions, has occurred during the relevant Test Period, EBITDA shall be determined for the respective Test Period on a Pro Forma Basis for such occurrences.
βConsolidated Net Incomeβ shall mean, with respect to any person for any period, the aggregate of the Net Income of such person and its subsidiaries for such period, on a consolidated basis, plus the amount that the provision for taxes exceeds cash taxes paid by such Person and its Restricted Subsidiaries in such period; provided, however, that, without duplication,
(a) any net after-tax extraordinary or nonrecurring or unusual gains, losses, income, expense or charges (less all fees and expenses relating thereto), including, without limitation, any severance, relocation or other restructuring costs and transition expenses incurred as a direct result of the transition of the Borrower to an independent operating company in connection with the Transactions and fees, expenses or charges related to any offering of Equity Interests of such person, any Investment, any acquisition or any offering of Indebtedness permitted to be incurred by this Agreement (in each case, whether or not successful), including any such fees, expenses or charges related to the Transactions, in each case, shall be excluded;
(b) any increase in amortization or depreciation or any one-time non-cash charges resulting from purchase accounting in connection with any acquisition that is consummated on or after the Closing Date shall be excluded;
(c) the cumulative effect of a change in accounting principles during such period shall be excluded;
(d) any net after-tax gains or losses on disposal of discontinued operations shall be excluded;
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(e) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by senior management or the Board of Directors of the Borrower) shall be excluded;
(f) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness shall be excluded;
(g) the Net Income for such period of any person that is not a subsidiary of such person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments actually paid in cash (or to the extent converted into cash) to the referent person or a subsidiary thereof in respect of such period;
(h) the Net Income for such period of any subsidiary of such person shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such subsidiary or its equityholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or converted into cash) by any such subsidiary to such person or a subsidiary of such person (subject to the provisions of this clause (h)), to the extent not already included therein;
(i) any non-cash impairment charge or asset write-off resulting from the application of Statement of Financial Accounting Standards No.Β 142 and 144, and the amortization of intangibles arising pursuant to No.Β 141, shall be excluded;
(j) any non-cash expenses realized or resulting from employee benefit plans or post-employment benefit plans, grants of stock appreciation or similar rights, stock options or other rights to officers, directors and employees of such person or any of its Subsidiaries shall be excluded;
(k) any one-time non-cash compensation charges shall be excluded;
(l) non-cash gains, losses, income and expenses resulting from fair value accounting required by Statement of Financial Accounting Standards No.Β 133 and related interpretations shall be excluded;
(m) the effects of purchase accounting as a result of the Acquisition shall be excluded;
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(n) accruals and reserves that are established within twelve months after the Closing Date and that are so required to be established in accordance with GAAP shall be excluded (until such time as such items require an expenditure of cash); and
(p) to the extent not already reflected in Consolidated Net Income, the amount of any accrual, reserve or other charge that reduces Net Income of such Person that was taken in respect of expected or actual Losses by reason of (x)Β any legal proceedings disclosed in the Offering Circular, including the financial statements included therein, or relating to the same facts and circumstances as disclosed, or (y)Β a breach or violation of law, in each case, shall be excluded; provided, that (as certified in a Certificate delivered to the Administrative Agent and signed by any two of the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower) the Borrower has (i)Β a reasonable good faith belief that it is entitled to be indemnified by Cendant pursuant to the Purchase Agreement in respect of such Losses in an amount greater than or equal to the amount to be excluded from the calculation of Consolidated Net Income pursuant to this clause (p)Β and (ii)Β provided Cendant a notice in respect of the Borrowerβs intent to seek indemnity; provided, further, that (x)Β if Net Income is increased as a result of any amounts received from Cendant in respect of such an indemnity and the right to be so indemnified was used in a prior period to increase Consolidated Net Income pursuant to this clause (p), such amounts received shall be excluded from Consolidated Net Income and (y)Β to the extent the actual indemnity received is less than the expected indemnity amount excluded in a prior period pursuant to this clause (p), Consolidated Net Income shall be reduced by the difference in the period in which such lower actual indemnity amounts are received or in which a final judgment of a court of competent jurisdiction is made that the Borrower is entitled to no indemnity
βConsolidated Total Assetsβ shall mean, as of any date, the total assets of the Borrower and the Subsidiaries, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Borrower as of such date.
βConsolidated Total Debtβ at any date shall mean (i)Β Consolidated Debt on such date less (ii)Β the Unrestricted Cash and Permitted Investments of the Borrower and its Subsidiaries on such date; provided, that the Unrestricted Cash and Permitted Investments of any Subsidiaries that are not Loan Parties to be included in clause (ii)Β as a reduction of Consolidated Debt may not exceed $15,000,000 in the aggregate.
βControlβ shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and βControllingβ and βControlledβ shall have meanings correlative thereto.
βCredit Eventβ shall have the meaning assigned to such term in Article IV.
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βCumulative Equity Proceeds Amountβ shall mean, at any time of determination, an amount equal to, without duplication:
(a) 100% of the aggregate net proceeds (determined in a manner consistent with the definition of βNet Proceedsβ), including cash and the Fair Market Value of tangible assets other than cash, received by the Borrower after the Closing Date from the issue or sale of Equity Interests of the Borrower to Holdings (excluding, without duplication, Excluded Contributions, Excluded Equity Proceeds, Permitted Cure Securities (including the Cure Amount) and Disqualified Stock) including Equity Interests of Holdings (other than Disqualified Stock) issued upon conversion of Indebtedness or Disqualified Stock to the extent the Borrower had received the Net Proceeds of such Indebtedness or Disqualified Stock, plus
(b) 100% of the aggregate amount of contributions to the capital of the Borrower by Holdings received in cash and the Fair Market Value of tangible assets other than cash after the Closing Date (other than Excluded Contributions, Excluded Equity Proceeds, Permitted Cure Securities (including the Cure Amount) and Disqualified Stock), plus
(c) 100% of the aggregate amount received by the Borrower or any Subsidiary in cash and the Fair Market Value of tangible assets other than cash received by the Borrower or any Subsidiary after the Closing Date from:
(i) the sale or other disposition (other than to the Borrower or a Subsidiary of the Borrower) of Investments made by the Borrower and its Subsidiaries and from repurchases and redemptions of such Investments from the Borrower and its Subsidiaries by any person (other than Holdings, the Borrower or any of its Subsidiaries) to the extent the Net Proceeds thereof are not required to be applied pursuant to SectionΒ 2.11(b);
(ii) the sale (other than to the Holdings, Borrower or a Subsidiary of the Borrower) of the Equity Interests of an Unrestricted Subsidiary to the extent the Net Proceeds thereof are not required to be applied pursuant to SectionΒ 2.11(b);
or
(iii) a distribution, dividend or other payment from an Unrestricted Subsidiary.
βCumulative Retained Excess Cash Flow Amountβ shall mean, at any date of determination, an amount (which may be negative) equal to:
(a) the aggregate cumulative sum of the Retained Percentage of Excess Cash Flow for each Excess Cash Flow Period (commencing after the Closing Date except, solely for purposes of determining the Available Free Cash Flow Amount, commencing on JulyΒ 1, 2005); plus
(b) for each Excess Cash Flow Interim Period during any Excess Cash Flow Period in which the Borrower has elected to make an Excess Cash Flow Early Prepayment, an amount equal to the Retained Percentage of the Excess Cash Flow for such Excess Cash Flow Interim Period; plus
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(c) an amount (which may be negative) equal to (i)Β the Retained Percentage of Year To Date Excess Cash Flow for such Excess Cash Flow Period minus (ii)Β the aggregate of all amounts, if any, added pursuant to clause (b)Β above during any Excess Cash Flow Period.
βCure Amountβ shall have the meaning assigned to such term in SectionΒ 7.03(a).
βCure Rightβ shall have the meaning assigned to such term in SectionΒ 7.03(a).
βCurrent Assetsβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Permitted Investments or other cash equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits.
βCurrent Liabilitiesβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current liabilities at such date of determination, other than (a)Β the current portion of any Indebtedness, (b)Β accruals of Interest Expense (excluding Interest Expense that is due and unpaid), (c)Β accruals for current or deferred Taxes based on income or profits, (d)Β accruals, if any, of transaction costs resulting from the Transactions, (e)Β accruals of any costs or expenses related to (i)Β severance or termination of employees prior to the Closing Date or (ii)Β bonuses, pension and other post-retirement benefit obligations, and (f)Β accruals for add-backs to EBITDA included in clauses (a)(iv) and (a)(vi) of the definition of such term.
βDebt Serviceβ shall mean, with respect to Holdings, the Borrower and the Subsidiaries on a consolidated basis for any period, Cash Interest Expense for such period plus scheduled principal amortization of Consolidated Debt for such period.
βDefaultβ shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
βDefaulting Lenderβ shall mean any Lender with respect to which a Lender Default is in effect.
βDisqualified Stockβ shall mean, with respect to any person, any Equity Interests of such person that, by their terms (or by the terms of any security into which such Equity Interests are convertible or for which such Equity Interests are redeemable or exchangeable), or upon the happening of any event, (i)Β mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale), (ii)Β are convertible or exchangeable other than at the option of the issuer thereof for Indebtedness or Disqualified Stock or (iii)Β are redeemable at the option of the holder thereof (other than upon the occurrence of a Change of Control (or similar event), sale or disposition of all or substantially all of the assets of the Borrower and its Subsidiaries, or the acceleration of the Loans, subject, in each case, to the prior payment in full in cash of all Obligations), in whole or in part, in each case prior to 91 days after the latest to mature of any Tranche, Other Term Loan, if any, and Other
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Revolving Loan, if any; provided, however, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employeeβs termination, death or disability; provided, still further, that any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock; provided, still further, that the Seller Preferred Equity, as in effect on the date hereof, shall not be deemed to be Disqualified Stock.
βDividendsβ shall have the meaning assigned to such term in SectionΒ 6.06.
βDocumentation Agentsβ shall have the meaning assigned to such term in the preamble hereto.
βDomestic Subsidiaryβ shall mean any Subsidiary that is not a Foreign Subsidiary.
βEBITDAβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of the Borrower and the Subsidiaries for such period (without giving effect to the amount added to Net Income in calculating Consolidated Net Income for the excess of the provision for taxes over cash taxes) plus (a)Β the sum of without duplication:
(i) to the extent deducted or otherwise excluded in calculating Consolidated Net Income for such period, provision for taxes based on income, profits or capital of the Borrower and the Subsidiaries for such period, without duplication, including, without limitation, state franchise and similar taxes, and including an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of the Borrower and the Subsidiaries in respect of such period in accordance with SectionΒ 6.06(b), which shall be included as though such amounts had been paid as income taxes directly by the Borrower or any Subsidiary; plus
(ii) to the extent deducted or otherwise excluded in calculating Consolidated Net Income for such period, Consolidated Fixed Charges of the Borrower and the Subsidiaries for such period; plus
(iii) to the extent deducted or otherwise excluded in calculating Consolidated Net Income for such period, depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash charges or expenses to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of the Borrower and the Subsidiaries for such period; plus
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(iv) to the extent deducted or otherwise excluded in calculating Consolidated Net Income for such period, the amount of any restructuring charges or expenses (which, for the avoidance of doubt, shall include retention payments and special supplemental bonus payable in connection with the Acquisition or otherwise, exit costs, severance payments, systems establishment costs or excess pension charges); plus
(v) EBITDA Scheduled Adjustments; plus
(vi) an amount of $3,000,000 for each of the four consecutive calendar quarters commencing with the calendar quarter beginning JanuaryΒ 1, 2005, representing anticipated cost savings from the 2005 Reorganization (as defined in the Offering Circular); plus
(vii) to the extent permitted to be paid pursuant to SectionΒ 6.07(b), the amount of management, monitoring, consulting and advisory fees and related expenses paid to the Fund or any Fund Affiliate (or any accruals relating to such fees and related expenses) during such period; provided, however, that such amount shall not exceed in any four-quarter period the greater of (x)Β $2,500,000 and (y)Β 1% of EBITDA of the Borrower and the Subsidiaries on a consolidated basis for the immediately preceding fiscal year (calculated without giving effect to this clause (vii)); minus
(b) non-cash items increasing such Consolidated Net Income for such period (excluding the recognition of deferred revenue or any non-cash items which represent the reversal of any accrual of, or reserve for, anticipated cash charges in any prior period and any items for which cash was received in any prior period and excluding amounts increasing Consolidated Net Income pursuant to clause (p)Β of the definition of Consolidated Net Income);
in each case, on a consolidated basis and determined in accordance with GAAP; provided, that for purposes of calculating EBITDA for any period including a fiscal quarter ended JuneΒ 30, 2005 or earlier, EBITDA for any such applicable fiscal quarter shall be, in the case of the fiscal quarter ended, (A)Β SeptemberΒ 30, 2004, $68,100,000, (B)Β DecemberΒ 31, 2004, $84,400,000, (C)Β MarchΒ 31, 2005, $53,900,000, and (D)Β JuneΒ 30, 2005, $52,400,000.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, the Consolidated Fixed Charges of, the depreciation and amortization and other non-cash expenses or non-cash items of and the restructuring charges or expenses of, a Subsidiary of the Borrower will be added to (or subtracted from, in the case of non-cash items described in clause (b)Β above) Consolidated Net Income to compute EBITDA, (A)Β in the same proportion that the Net Income of such Subsidiary was added to compute such Consolidated Net Income of the Borrower, and (B)Β only to the extent that a corresponding amount of the Net Income of such Subsidiary would be permitted at the date of determination to be dividended or distributed to the Borrower by such Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders.
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βEBITDA Scheduled Adjustmentsβ shall mean the adjustments to EBITDA set forth on Schedule 1.01(a) attached hereto.
βEMU Legislationβ shall mean the legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states.
βenvironmentβ shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.
βEnvironmental Lawsβ shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees, directives, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to health and safety matters (to the extent relating to the environment or Hazardous Materials).
βEquity Financingβ shall mean, in connection with the consummation of the Acquisition, the issuance by Holdings of Equity Interests to the Permitted Holders and the Seller Preferred Equity to the Seller and/or its designee.
βEquity Financing Documentsβ shall mean, collectively, (a)Β the Registration Rights Agreement, dated as of the date hereof, between Holdings and Affinion Group Holdings, LLC, (b)Β the Subscription Agreement and Redemption Agreement, dated as of the date hereof, between Holdings and Affinion Group Holdings, LLC, (c)Β the Seller Warrants, and (d)Β the Seller Preferred Equity Documents, as the same may be amended from time to time in accordance with the terms hereof and thereof.
βEquity Interestsβ of any person shall mean any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing.
βERISAβ shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
βERISA Affiliateβ shall mean any trade or business (whether or not incorporated) that, together with Holdings, the Borrower or a Subsidiary, is treated as a single employer under SectionΒ 414(b) or (c)Β of the Code, or, solely for purposes of SectionΒ 302 of ERISA and SectionΒ 412 of the Code, is treated as a single employer under SectionΒ 414 of the Code.
βERISA Eventβ shall mean (a)Β any Reportable Event; (b)Β the existence with respect to any Plan of an βaccumulated funding deficiencyβ (as defined in SectionΒ 412 of the Code or SectionΒ 302 of ERISA), whether or not waived; (c)Β the filing pursuant to SectionΒ 412(d)
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of the Code or SectionΒ 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under SectionΒ 412(m) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (d)Β the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e)Β the receipt by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention, or the institution by the PBGC of proceedings, to terminate any Plan or to appoint a trustee to administer any Plan; (f)Β the incurrence by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)Β the receipt by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Holdings, the Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
βeuroβ or ββ¬β shall mean the currency constituted by the Treaty on the European Union and as referred to in the EMU Legislation.
βEurocurrency Borrowingβ shall mean a Borrowing comprised of Eurocurrency Loans.
βEurocurrency Liabilitiesβ has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
βEurocurrency Loanβ shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.
βEurocurrency Rate Reserve Percentageβ means, with respect to any Interest Period, the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Borrowings denominated in U.S. Dollars is determined) having a term equal to such Interest Period.
βEurocurrency Revolving Borrowingβ shall mean a Borrowing comprised of Eurocurrency Revolving Loans.
βEurocurrency Revolving Loanβ shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of Article II.
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βEurocurrency Term Loanβ shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of Article II.
βEvent of Defaultβ shall have the meaning assigned to such term in SectionΒ 7.01.
βExcess Cash Flowβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any Excess Cash Flow Period, EBITDA of the Borrower and the Subsidiaries on a consolidated basis for such Excess Cash Flow Period, minus, without duplication,
(a) Debt Service for such Excess Cash Flow Period, reduced by the aggregate principal amount of voluntary prepayments of Consolidated Debt (other than prepayments of the Loans) that would otherwise constitute scheduled principal amortization during such Excess Cash Flow Period;
(b) the amount of any voluntary prepayment permitted hereunder of term Indebtedness (other than any Term Loans) during such Excess Cash Flow Period, in each case to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness, the sale or issuance of any Equity Interests, any Cumulative Equity Proceeds Amount or any Net Proceeds not otherwise required to prepay the Loans pursuant to SectionΒ 2.11 or the definition of the term βNet Proceedsβ, in each case, to the extent that the amount of such prepayment is not already reflected in Debt Service;
(c) (i)Β Capital Expenditures by the Borrower and the Subsidiaries on a consolidated basis during such Excess Cash Flow Period that are paid in cash and (ii)Β the aggregate consideration paid in cash during such Excess Cash Flow Period in respect of Permitted Business Acquisitions and other Investments permitted hereunder, in each case, to the extent not financed with the proceeds of, without duplication, the incurrence of Indebtedness, the sale or issuance of any Equity Interests, any component of Available Free Cash Flow Amount (which, in the case of Cumulative Retained Excess Cash Flow Amount, only to the extent attributable to a time prior to such Excess Cash Flow Period) or any Net Proceeds not otherwise required to prepay the Loans pursuant to SectionΒ 2.11 or the definition of the term βNet Proceedsβ (less any amounts received in respect thereof as a return of capital);
(d) Capital Expenditures that the Borrower or any Subsidiary shall, during such Excess Cash Flow Period, become obligated to make but that are not made during such Excess Cash Flow Period; provided, that (i)Β any amount so deducted that will be paid after the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash Flow Period, and (ii)Β the Borrower shall deliver a certificate to the Administrative Agent not later than 90 days after the end of such Excess Cash Flow Period, signed by a Responsible Officer of the Borrower and certifying that such Capital Expenditures and the delivery of the related equipment will be made in the following Excess Cash Flow Period; provided, further, that if any such Capital Expenditures so deducted are either (A)Β not so made in the following Excess Cash Flow Period or (B)
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made in the following Excess Cash Flow Period with the proceeds of, without duplication, the incurrence of Indebtedness, the sale or issuance of any Equity Interests, any component of Available Free Cash Flow Amount (which, in the case of Cumulative Retained Excess Cash Flow Amount, only to the extent attributable to a time prior to such Excess Cash Flow Period) or any Net Proceeds not otherwise required to prepay the Loans pursuant to SectionΒ 2.11 or the definition of the term βNet Proceedsβ, the amount of such Capital Expenditures not so made or so financed shall be added to the calculation of Excess Cash Flow in such following Excess Cash Flow Period;
(e) Taxes paid in cash by Holdings, the Borrower and the Subsidiaries on a consolidated basis during such Excess Cash Flow Period or that will be paid within six months after the close of such Excess Cash Flow Period and for which reserves have been established, including income tax expense and withholding tax expense incurred in connection with cross-border transactions involving the Foreign Subsidiaries; provided, that any amount so deducted that will be paid after the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash Flow Period;
(f) an amount equal to any increase in Working Capital of the Borrower and the Subsidiaries for such Excess Cash Flow Period;
(g) cash expenditures made in respect of Swap Agreements during such Excess Cash Flow Period, to the extent not reflected in the computation of EBITDA or Cash Interest Expense;
(h) permitted dividends or distributions or repurchases of its Equity Interests paid in cash by the Borrower to Holdings during such Excess Cash Flow Period and permitted dividends paid by any Subsidiary to any person other than the Borrower or any of the Subsidiaries during such Excess Cash Flow Period, in each case in accordance with SectionΒ 6.06 (other than SectionΒ 6.06(e)) or SectionΒ 6.06(h);
(i) without duplication of any exclusions to the calculation of Consolidated Net Income or EBITDA, amounts paid in cash during such Excess Cash Flow Period on account of (A)Β items that were accounted for as noncash reductions of Net Income in determining Consolidated Net Income or as noncash reductions of Consolidated Net Income in determining EBITDA of the Borrower and the Subsidiaries in a prior Excess Cash Flow Period and (B)Β reserves or accruals established in purchase accounting;
(j) to the extent not deducted in the computation of Net Proceeds in respect of any asset disposition or condemnation giving rise thereto, the amount of any mandatory prepayment of Indebtedness (other than Indebtedness created hereunder or under any other Loan Document), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith to the extent that the income or gain realized from the transaction giving rise to such Net Proceeds exceeds the aggregate amount of all such mandatory prepayments and Capital Expenditures made with such Net Proceeds, and
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(k) the amount related to items that were added to or not deducted from Net Income in calculating Consolidated Net Income or were added to or not deducted from Consolidated Net Income in calculating EBITDA to the extent such items represented a cash payment (which had not reduced Excess Cash Flow upon the accrual thereof in a prior Excess Cash Flow Period), or an accrual for a cash payment, by the Borrower and the Subsidiaries or did not represent cash received by the Borrower and the Subsidiaries, in each case on a consolidated basis during such Excess Cash Flow Period,
plus, without duplication,
(a) an amount equal to any decrease in Working Capital of the Borrower and the Subsidiaries for such Excess Cash Flow Period;
(b) all proceeds received during such Excess Cash Flow Period of Capital Lease Obligations, purchase money Indebtedness, Sale and Lease-Back Transactions pursuant to SectionΒ 6.03 and any other Indebtedness, in each case to the extent used to finance any Capital Expenditure (other than Indebtedness under this Agreement to the extent there is no corresponding deduction to Excess Cash Flow above in respect of the use of such Borrowings);
(c) all amounts referred to in clause (c)Β or (d)Β above to the extent funded with, without duplication, (i)Β the proceeds of the sale or issuance of Equity Interests of, or capital contributions to, the Borrower after the Closing Date, (ii)Β any amount that would have constituted Net Proceeds under clause (a)Β of the definition of the term βNet Proceedsβ if not so spent or (iii)Β any component of Available Free Cash Flow Amount (which, in the case of Cumulative Retained Excess Cash Flow Amount, only to the extent attributable to a time prior to such Excess Cash Flow Period), in each case to the extent there is a corresponding deduction from Excess Cash Flow above;
(d) to the extent any permitted Capital Expenditures referred to in clause (d)Β above and the delivery of the related equipment do not occur in the following Excess Cash Flow Period specified in the certificate of the Borrower provided pursuant to clauseΒ (d) above, the amount of such Capital Expenditures that were not so made in such following Excess Cash Flow Period;
(e) cash payments received in respect of Swap Agreements during such Excess Cash Flow Period to the extent (i)Β not included in the computation of EBITDA or (ii)Β such payments do not reduce Cash Interest Expense;
(f) any extraordinary or nonrecurring gain realized in cash during such Excess Cash Flow Period, except to the extent such gain consists of Net Proceeds subject to SectionΒ 2.11(c);
(g) to the extent deducted in the computation of EBITDA, cash interest income; and
(h) the amount related to items that were deducted from or not added to Net Income in connection with calculating Consolidated Net Income or were deducted from
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or not added to Consolidated Net Income in calculating EBITDA to the extent either (x)Β such items represented cash received by the Borrower or any Subsidiary or (y)Β such items do not represent cash paid by the Borrower or any Subsidiary, in each case on a consolidated basis during such Excess Cash Flow Period;
provided, that for purposes of calculating Excess Cash Flow in connection with any Excess Cash Flow Early Prepayment of Term Loans to be made in accordance with SectionΒ 2.11(a)(ii) or Cumulative Retained Excess Cash Flow Amount for any Excess Cash Flow Interim Period, Excess Cash Flow Period as used in this definition shall be deemed to be Excess Cash Flow Interim Period.
βExcess Cash Flow Early Prepaymentβ shall have the meaning assigned to such term in SectionΒ 2.11(a)(ii).
βExcess Cash Flow Interim Periodβ shall mean during any Excess Cash Flow Period, the one, two or three quarter period (taken as one accounting period) for which an Excess Cash Flow Early Prepayment has been made (or calculated and not required to be made) (a)Β commencing on the later of (i)Β the end of the immediately preceding Excess Cash Flow Period and (ii)Β if an Excess Cash Flow Early Prepayment shall have previously been made during such Excess Cash Flow Period, the end of the immediately preceding Excess Cash Flow Interim Period during such Excess Cash Flow Period and (b)Β ending on the last day of the most recently ended fiscal quarter (other than the last day of the fiscal year) during such Excess Cash Flow Period for which financial statements are available.
βExcess Cash Flow Periodβ shall mean (a)Β the period taken as one accounting period beginning on JulyΒ 1, 2006, and ending on DecemberΒ 31, 2006, and (b)Β each fiscal year of the Borrower ended thereafter; provided, that solely for purposes of determining the Available Free Cash Flow Amount, such period shall be (i)Β the period taken as one accounting period beginning on JulyΒ 1, 2005, and ending on DecemberΒ 31, 2005, and (ii)Β each fiscal year of the Borrower ended thereafter.
βExchange Actβ shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
βExcluded Contributionsβ shall mean the Permitted Investments or other assets (valued at their Fair Market Value as determined in good faith by senior management or the Board of Directors of the Borrower) received by the Borrower from:
(a) contributions in respect of its common stock and
(b) the sale (other than to a Subsidiary of the Borrower or pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower or any of its Subsidiaries) of Equity Interests (other than Disqualified Stock) of the Borrower to Holdings,
in each case, as designated as Excluded Contributions pursuant to an Officerβs Certificate executed by a Responsible Officer of the Borrower; provided, that, notwithstanding anything to the contrary, Excluded Contributions shall not include any amounts included in Cumulative
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Equity Proceeds Amount, any Excluded Equity Proceeds and any Permitted Cure Securities (including the Cure Amount).
βExcluded Equity Proceedsβ shall mean, during any fiscal year, the net proceeds (determined in a manner consistent with the definition of βNet Proceedsβ) received by Holdings during such fiscal year from the sales and issuance of its Equity Interests (other than Disqualified Stock) so long as (a)Β all such proceeds are contributed in cash to the Borrower, (b)Β none of such proceeds are included in Cumulative Equity Proceeds Amount (or otherwise in the calculation of Available Free Cash Flow Amount), Excluded Contributions or Cure Amount, and (c)Β such Equity Interests are not Permitted Cure Securities.
βExcluded Indebtednessβ shall mean all Indebtedness permitted to be incurred under SectionΒ 6.01 (as amended or waived from time to time).
βExcluded Jurisdictionsβ shall mean any jurisdiction in which a Foreign Subsidiary is formed or organized to the extent that (a)Β the perfection of the pledge of Equity Interests in such Foreign Subsidiary pursuant to a Foreign Pledge Agreement requires the consent or approval of any Governmental Authority in such jurisdiction and such consent or approval is not readily obtainable in the ordinary course, or violates applicable law, or (b)Β such Foreign Subsidiary, taken on a consolidated basis with its subsidiaries, is an Immaterial Subsidiary.
βExcluded Taxesβ shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, the following taxes, including interest, penalties or other additions thereto:
(a) income taxes imposed on (or measured by) its net income or franchise taxes imposed on (or measured by) its gross or net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, in each case including any political subdivision thereof,
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a)Β above,
(c) any withholding tax that is attributable to a Lenderβs failure to comply with SectionΒ 2.17(e) (other than as a result of a change in law), and
(d) any withholding tax that is in effect and would apply to amounts payable hereunder by the Borrower at the time such Lender becomes a party to this Agreement (or designates a new Lending Office),
except, in the case of clause (d)Β above, to the extent that (i)Β such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from a Loan Party with respect to any withholding tax pursuant to SectionΒ 2.17(a) or (ii)Β such withholding tax shall have resulted from the making of any payment
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to a location other than the office designated by the Administrative Agent or such Lender for the receipt of payments of the applicable type.
βFair Market Valueβ means, with respect to any asset or property, the price that could be negotiated in an armsβ-length transaction between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
βFederal Funds Rateβ means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
βFeesβ shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees and the Administrative Agent Fees.
βFinancial Officerβ of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such person.
βFlow Through Entityβ means an entity that is treated as a partnership not taxable as a corporation, a grantor trust or a disregarded entity for U.S. federal income tax purposes or subject to treatment on a comparable basis for purposes of state, local or foreign tax law.
βForeign Pledge Agreementβ shall mean a pledge or charge agreement with respect to the Pledged Collateral that constitutes Equity Interests of a Foreign Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent; provided, that in no event shall more than 65% of the issued and outstanding voting Equity Interests of such Foreign Subsidiary be pledged to secure Obligations of the Loan Parties.
βForeign Subsidiaryβ shall mean any Subsidiary (together with its successors) that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia.
βFundβ shall mean (i)Β Apollo Overseas Partners V, L.P., (ii)Β Apollo Netherlands Partners V(A), L.P., (iii)Β Apollo Netherlands Partners (V)(B), L.P., (iv)Β Apollo German Partners V GmbH KGΒ & Co., and (v)Β Apollo Investment Fund V, L.P.
βFund Affiliateβ shall mean (a)Β each Affiliate of the Fund that is neither a βportfolio companyβ, whether or not controlled, nor a company controlled by a βportfolio companyβ or in which a βportfolio companyβ has made an investment (including joint ventures) and (b)Β any individual who is a partner or employee of the Fund.
βGAAPβ shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section
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1.02; provided, that any reference to the application of GAAP in Sections 3.13(a), 3.13(b), 3.20, 5.03, 5.07 and 6.02(e), to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally accepted accounting principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary.
βGovernmental Authorityβ shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality, regulator or regulatory or legislative body.
βGuaranteeβ of or by any person (the βguarantorβ) shall mean (a)Β any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the βprimary obligorβ) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i)Β to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (ii)Β to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii)Β to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (iv)Β entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or (v)Β as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation, or (b)Β any Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor; provided, however, that the term βGuaranteeβ shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement.
βGuarantee and Collateral Agreementβ shall mean the Guarantee and Collateral Agreement, in the form of Exhibit D, as amended, supplemented or otherwise modified from time to time, among Holdings, the Borrower and each Subsidiary Loan Party and the Administrative Agent.
βHazardous Materialsβ shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.
βHoldingsβ shall have the meaning assigned to such term in the preamble hereto.
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βImmaterial Subsidiaryβ shall mean any Subsidiary that (a)Β did not, as of the last day of the fiscal quarter of the Borrower most recently ended, have assets with a value in excess of 5% of the Consolidated Total Assets or revenues representing in excess of 5% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date and (b)Β taken together with all Unrestricted Subsidiaries designated pursuant to clause (ii)Β of the definition thereof and all other Immaterial Subsidiaries as of the last day of the fiscal quarter of the Borrower most recently ended, did not have assets with a value in excess of 10% of the Consolidated Total Assets or revenues representing in excess of 10% of total revenues of the Borrower and the Subsidiaries on a consolidated basis as of such date; provided, that (i)Β for purposes of the definition of βExcluded Jurisdictionβ, the assets and revenues of such Subsidiary shall be deemed to include all assets and revenues of such Subsidiaryβs Subsidiaries on a consolidated basis and (ii)Β any Subsidiary that is a βSignificant Subsidiaryβ as such term (or any similar term) is used in the Senior Notes Indenture or the Senior Subordinated Notes Indenture (or any Permitted Refinancing Indebtedness incurred to Refinance the Bridge Financing) shall not be an βImmaterial Subsidiaryβ hereunder. Each Immaterial Subsidiary shall be set forth in Schedule 1.01(b), and the Borrower shall update such Schedule from time to time after the Closing Date as necessary to reflect all Immaterial Subsidiaries at such time (the selection of Subsidiaries to be added to or removed from such Schedule to be made as the Borrower may determine).
βIncreased Amount Dateβ shall have the meaning assigned to such term in SectionΒ 2.20.
βIncremental Amountβ shall mean, at any time, the excess, if any, of (a)Β the greater of (x)Β $175,000,000 and (y)Β an amount equal to EBITDA for the most recent four-quarter period then ended for which financial statements are available, as determined from the certificate delivered pursuant to SectionΒ 5.04(c) for such period over (b)Β the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments established prior to such time pursuant to SectionΒ 2.20.
βIncremental Assumption Agreementβ shall mean an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders.
βIncremental Revolving Facility Commitmentβ shall mean the commitment of any Lender, established pursuant to SectionΒ 2.20, to make Incremental Revolving Facility Loans to the Borrower.
βIncremental Revolving Facility Lenderβ shall mean a Lender with an Incremental Revolving Facility Commitment or an outstanding Incremental Revolving Facility Loan.
βIncremental Revolving Facility Loansβ shall mean Revolving Facility Loans made by one or more Lenders to the Borrower pursuant to SectionΒ 2.01(c). Incremental Revolving Facility Loans may be made in the form of additional Revolving Facility Loans or, to
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the extent permitted by SectionΒ 2.20 and provided for in the relevant Incremental Assumption Agreement, Other Revolving Facility Loans.
βIncremental Term Lenderβ shall mean a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
βIncremental Term Loan Commitmentβ shall mean the commitment of any Lender, established pursuant to SectionΒ 2.20, to make Incremental Term Loans to the Borrower.
βIncremental Term Loansβ shall mean Term Loans made by one or more Lenders to the Borrower pursuant to SectionΒ 2.01(c). Incremental Term Loans may be made in the form of additional Tranche B Term Loans or, to the extent permitted by SectionΒ 2.20 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans.
βIndebtednessβ of any person shall mean, without duplication, (a)Β all obligations of such person for borrowed money, (b)Β all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c)Β all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (d)Β all obligations of such person issued or assumed as the deferred purchase price of property or services (other than current trade liabilities and current intercompany liabilities (but not any refinancings, extensions, renewals or replacements thereof) incurred in the ordinary course of business and maturing within 365 days after the incurrence thereof), (e)Β all Guarantees by such person of Indebtedness of others, (f)Β all Capital Lease Obligations of such person, (g)Β all payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Agreements, (h)Β the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit, (i)Β the principal component of all obligations of such person in respect of bankersβ acceptances and (j)Β the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock). The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof; provided, however, that, notwithstanding the foregoing, solely for purposes of calculating any financial covenant in SectionΒ 6.10 or SectionΒ 6.11 or calculating any financial ratio, Indebtedness shall be deemed not to include (i)Β contingent obligations incurred in the ordinary course of business, (ii)Β deferred or prepaid revenues, (iii)Β purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv)Β with respect to the Borrower, the Seller Preferred Stock, whether or not reflected as a liability of the Borrower on the balance sheet of the Borrower, as in effect as of the Closing Date and as permitted to be amended pursuant to SectionΒ 6.08(b), so long as the Borrower and its Subsidiaries do not have any obligations or liabilities in respect thereof, contingent or otherwise, (v)Β obligations to make payments in respect of money backed guarantees offered to customers in the ordinary course of business, (vi)Β obligations to make payments to one or more insurers in respect of profit sharing arrangements entered into in the ordinary course of business, or (vii)Β any Indebtedness of Holdings deemed to be Indebtedness of
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the Borrower on its balance sheet under GAAP but for which the Borrower and its Subsidiaries do not have any obligations or liabilities, contingent or otherwise.
βIndemnified Taxesβ shall mean all Taxes other than Excluded Taxes and Other Taxes.
βIndemniteeβ shall have the meaning assigned to such term in SectionΒ 9.05(b).
βIneligible Institutionβ shall mean the persons identified in writing to the Administrative Agent by the Borrower on the Closing Date, and as may be identified in writing to the Administrative Agent by the Borrower from time to time thereafter, with the written consent of the Administrative Agent, by delivery of a notice thereof to the Administrative Agent setting forth such person or persons (or the person or persons previously identified to Agent that are to be no longer considered βIneligible Institutionsβ).
βInformationβ shall have the meaning assigned to such term in SectionΒ 3.14(a).
βInformation Memorandumβ shall mean the Confidential Information Memorandum dated September 2005, as modified or supplemented prior to the Closing Date.
βInsurance Businessβ shall mean one or more aspects of the business of soliciting, administering, selling, issuing or underwriting insurance or reinsurance.
βInsurance Reservesβ shall mean all reserves required by Applicable Insurance Laws and Regulations to by maintained by any company engaged in the Insurance Business, including, without limitation, adequate reserves for incurred losses and incurred loss adjustment expenses, whether or not reported.
βInsurance Subsidiaryβ shall mean any Subsidiary that is licensed by any Applicable Insurance Regulatory Authority to conduct, and conducts, an Insurance Business.
βIntellectual Property Security Agreementβ shall mean the Intellectual Property Security Agreement, in the form of Exhibit E, as amended, supplemented or otherwise modified from time to time, among Holdings, the Borrower and each Subsidiary Loan Party and the Administrative Agent.
βInterest Coverage Ratioβ shall mean, on any date, the ratio of (a)Β EBITDA to (b)Β Cash Interest Expense of the Borrower and the Subsidiaries, in each case, for the period of four consecutive fiscal quarters most recently ended as of such date, all determined on a consolidated basis in accordance with GAAP.
βInterest Election Requestβ shall mean a request by the Borrower to convert or continue a Term Borrowing or Revolving Borrowing in accordance with SectionΒ 2.07.
βInterest Expenseβ shall mean, with respect to any person for any period, the sum of, without duplication, (a)Β gross interest expense of such person for such period on a consolidated basis, including (i)Β the amortization of debt discounts, (ii)Β the amortization of all fees (including fees with respect to Swap Agreements) payable in connection with the incurrence
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of Indebtedness to the extent included in interest expense, (iii)Β the portion of any payments or accruals with respect to Capital Lease Obligations allocable to interest expense and (iv)Β net payments and receipts (if any) pursuant to interest rate hedging obligations, and excluding amortization of deferred financing fees and expensing of any bridge or other financing fees, (b)Β capitalized interest of such person, whether paid or accrued, and (c)Β commissions, discounts, yield and other fees and charges incurred for such period in connection with any receivables financing of such person or any of its subsidiaries that are payable to persons other than Holdings, the Borrower and the Subsidiaries.
βInterest Payment Dateβ shall mean, (a)Β with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three monthsβ duration each day that would have been an Interest Payment Date had successive Interest Periods of three monthsβ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type and (b)Β with respect to any ABR Loan, the last day of each calendar quarter (being the last day of March, June, September and December of each year).
βInterest Periodβ shall mean, as to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of the relevant Borrowing, all Lenders agree to make interest periods of such length available), as the Borrower may elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with SectionΒ 2.07 or repaid or prepaid in accordance with SectionΒ 2.09, 2.10 or 2.11; provided, however, that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.
βInvestmentβ shall have the meaning set forth in SectionΒ 6.04.
βIssuing Bankβ shall mean each Issuing Bank set forth on Schedule 2.05 and each other Issuing Bank designated pursuant to SectionΒ 2.05(k), in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in SectionΒ 2.05(i). An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term βIssuing Bankβ shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
βIssuing Bank Feesβ shall have the meaning assigned to such term in SectionΒ 2.12(b).
βJoint Lead Arrangersβ shall Credit Suisse and Deutsche Bank Securities Inc.
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βL/C Commitmentβ shall mean, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit pursuant to SectionΒ 2.05. The initial aggregate amount of the L/C Commitments of all Issuing Banks is $50,000,000.
βL/C Disbursementβ shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
βL/C Exposureβ shall mean, at any time, the sum of (a)Β the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b)Β the aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The L/C Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total L/C Exposure at such time.
βL/C Participation Feeβ shall have the meaning assigned such term in SectionΒ 2.12(b).
βLenderβ shall mean each financial institution listed on Schedule 2.01, as well as any person that becomes a βLenderβ hereunder pursuant to SectionΒ 9.04 or SectionΒ 2.20, including, as applicable the Swingline Lender, and in respect of Letters of Credit, each Issuing Bank.
βLender Defaultβ shall mean (a)Β the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing, to acquire participations in a Swingline Loan pursuant to SectionΒ 2.04 or to fund its portion of any unreimbursed payment under SectionΒ 2.05(e), or (b)Β a Lender having notified in writing the Borrower and/or the Administrative Agent that it does not intend to comply with its obligations under SectionΒ 2.04, 2.05 or 2.06.
βLending Officeβ shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans to the Borrower.
βLetter of Creditβ shall mean any letter of credit issued pursuant to SectionΒ 2.05.
βLienβ shall mean, with respect to any asset, (a)Β any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b)Β the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c)Β in the case of securities (other than securities representing an interest in a joint venture that is not a Subsidiary), any purchase option, call or similar right of a third party with respect to such securities; provided, that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
βLoan Documentsβ shall mean this Agreement, the Letters of Credit, the Security Documents and any promissory note issued under SectionΒ 2.09(e), and solely for the purposes of Sections 4.02(l) and 7.01(c) hereof, the Fee Letter dated JulyΒ 26, 2005, by and among Holdings, the Borrower, Credit Suisse, the Joint Lead Arrangers and the other parties thereto.
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βLoan Partiesβ shall mean Holdings, the Borrower and the Subsidiary Loan Parties.
βLoansβ shall mean the Term Loans, the Revolving Facility Loans and the Swingline Loans (and shall include any Loans under the Incremental Revolving Facility Commitments or Incremental Term Loan Commitments).
βLocal Timeβ shall mean New York City time.
βLossesβ shall have the meaning assigned to such term in SectionΒ 6.01(w).
βMajority Lendersβ of any Tranche shall mean, at any time, Lenders under such Tranche having Loans and unused Commitments representing more than 50% of the sum of all Loans outstanding under such Tranche and unused Commitments under such Tranche at such time.
βManagement Groupβ means the group consisting of the directors, executive officers and other management personnel of Holdings and the Borrower on the Closing Date together with (a)Β any new directors of Holdings or the Borrower whose election by such Boards of Directors or whose nomination for election by the shareholders of Holdings was approved by a vote of a majority of the directors of Holdings then still in office who were either directors on the Closing Date or whose election or nomination was previously so approved and (b)Β executive officers and other management personnel of Holdings or the Borrower hired at a time when the directors on the Closing Date together with the directors so approved constituted a majority of the directors of Holdings.
βMargin Stockβ shall have the meaning assigned to such term in Regulation U.
βMaterial Adverse Effectβ shall mean the existence of any event, development or circumstance that, subsequent to DecemberΒ 31, 2004, has had or could reasonably be expected to have a material adverse effect on (a)Β the Transactions, (b)Β the business, property, operations or condition of the Borrower and the Subsidiaries, taken as a whole, or (c)Β the validity or enforceability of any material Loan Document or the rights and remedies of the Administrative Agent and the Lenders thereunder.
βMaterial Indebtednessβ shall mean Indebtedness (other than Loans and Letters of Credit) of any one or more of Holdings, the Borrower or any Subsidiary in an aggregate principal amount exceeding $30,000,000.
βMaterial Subsidiaryβ shall mean any Subsidiary other than Immaterial Subsidiaries.
βMaximum Rateβ shall have the meaning assigned to such term in SectionΒ 9.09.
βMoodyβsβ shall mean Xxxxxβx Investors Service, Inc.
βMortgaged Propertiesβ shall mean each real property encumbered by a Mortgage pursuant to SectionΒ 5.11.
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βMortgagesβ shall mean the mortgages, debentures, hypothecs, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered pursuant to SectionΒ 5.11, as amended, supplemented or otherwise modified from time to time, with respect to Mortgaged Properties, each in form and substance reasonably satisfactory to the Administrative Agent.
βMultiemployer Planβ shall mean a multiemployer plan as defined in SectionΒ 4001(a)(3) of ERISA to which Holdings, the Borrower or any Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions.
βNetcentives Assetsβ shall mean the portfolio of patents that relate to online award redemption programs, which expire on DecemberΒ 14, 2015.
βNetcentives Asset Saleβ shall mean the sale, conveyance, transfer, license or other disposition of the Netcentives Assets.
βNet Incomeβ shall mean, with respect to any person, the net income (loss) of such person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends minus an amount equal to the amount of tax distributions actually made to the holders of Equity Interests of such person or any parent of such person in respect of a period in accordance with SectionΒ 6.06(b)(i) as if such amounts had been paid as income taxes directly by such person but only to the extent such amounts have not already been accounted for as taxes reducing the net income (loss) of such person.
βNet Proceedsβ shall mean:
(a) 100% of the cash proceeds actually received by any Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any loss, damage, destruction or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets and any mortgage or lease of real property) to any person of any asset or assets of the Borrower or any Subsidiary Loan Party (other than those pursuant to SectionΒ 6.05(a), (b), (c), (e), (f)Β (except to the extent of any cash consideration), (g), (i), (j), or (m)) net of (i)Β attorneysβ fees, accountantsβ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset (other than pursuant hereto), other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and (ii)Β Taxes paid or payable as a result thereof; provided, that, if no Event of Default exists, the Borrower or any Subsidiary may deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly after receipt of any such proceeds setting forth the Borrowerβs or such Subsidiaryβs intention to use, or to commit to use, any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiary Loan Parties or to make
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investments in Permitted Business Acquisitions or Investments permitted by SectionΒ 6.04, in each case, if such certificate shall have been delivered, within twelve months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent (A)Β not so used (or committed to be used) within such twelve-month period or (B)Β if committed to be used within such twelve-month period, not so used within 18 months of such receipt); provided, further, that (x)Β no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $5,000,000 and (y)Β no proceeds shall constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $10,000,000; provided, still further, that pending such reinvestment, such proceeds may be applied to temporarily reduce outstanding Revolving Facility Loans; and
(b) 100% of the cash proceeds from the incurrence, issuance or sale by any Loan Party of any Indebtedness (other than Excluded Indebtedness), net of all taxes and fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to Holdings or the Borrower or any Affiliate of either of them shall be disregarded, except for financial advisory fees customary in type and amount paid to Affiliates of the Fund.
βNon-Consenting Lenderβ shall have the meaning assigned to such term in SectionΒ 2.19(c).
βNoteβ shall have the meaning assigned to such term in SectionΒ 2.09(e).
βObligationsβ shall, unless otherwise indicated, have the meaning assigned to the term βLoan Document Obligationsβ in the Guarantee and Collateral Agreement.
βOffering Circularβ shall mean the offering circular dated OctoberΒ 3, 2005 prepared in connection with the offering of the Senior Notes.
βOIDβ shall have the meaning assigned to such term in SectionΒ 2.20(b).
βOther Revolving Facility Loansβ shall have the meaning assigned to such term in SectionΒ 2.20(a).
βOther Taxesβ shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents, and any and all interest and penalties related thereto.
βOther Term Loansβ shall have the meaning assigned to such term in SectionΒ 2.20(a).
βOverdraft Lineβ shall have the meaning assigned to such term in SectionΒ 6.01(r).
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βParticipantβ shall have the meaning assigned to such term in SectionΒ 9.04(c).
βPBGCβ shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
βPerfection Certificateβ shall mean the Perfection Certificate with respect to Borrower, in a form reasonably satisfactory to the Administrative Agent.
βPermitted Business Acquisitionβ shall mean any acquisition of all or substantially all the assets of, or all the Equity Interests (other than directorsβ qualifying shares) in, a person or division or line of business of a person (or any subsequent investment made in a person, division or line of business previously acquired in a Permitted Business Acquisition) if (a)Β such acquisition was not preceded by, or effected pursuant to, an unsolicited or hostile offer by the acquirer or an Affiliate of the acquirer and (b)Β immediately after giving effect thereto: (i)Β no Event of Default shall have occurred and be continuing or would result therefrom; (ii)Β all transactions related thereto shall be consummated in accordance with applicable laws; (iii)Β (A)Β the Borrower and the Subsidiaries shall be in Pro forma Compliance after giving effect to such acquisition, with the covenants set forth in Sections 6.10 and 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower, and the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower to such effect, together with all relevant financial information for such Subsidiary or assets, and (B)Β any acquired or newly formed Subsidiary shall not be liable for any Indebtedness (except for Indebtedness permitted by SectionΒ 6.01); (iv)Β the Available Unused Commitments together with all Unrestricted Cash and Permitted Investments of the Borrower and the Subsidiaries at such time shall be no less than $20,000,000; and (v)Β the person acquired in such acquisition, if acquired by the Borrower or a Domestic Subsidiary, shall be merged into the Borrower or a Subsidiary Loan Party or become upon consummation of such acquisition a Subsidiary Loan Party.
βPermitted Cure Securityβ shall mean Equity Interests of Holdings other than Disqualified Stock.
βPermitted Holderβ shall mean each of (a)Β the Fund and the Fund Affiliates and (b)Β the Management Group, with respect to not more than 10% of the total voting power of the Equity Interests of Holdings or the Borrower.
βPermitted Investmentsβ shall mean:
(a) U.S. Dollars, Sterling, euros, or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
(b) securities issued or directly and fully guaranteed or insured by the government of, or any agency or instrumentality thereof, the United States of America, Mexico or any member state of the European Union, in each case, with maturities not exceeding two years after the date of acquisition;
(c) in the case of any Foreign Subsidiary, securities issued or directly and fully guaranteed or insured by the government of, or any agency or instrumentality
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thereof, in each case with maturities not exceeding 270 days after the date of acquisition and held by it from time to time in the ordinary course of business;
(d) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankersβ acceptances, in each case with maturities not exceeding one year and overnight bank deposits and demand deposits (in their respective local currencies), in each case with any commercial bank having capital and surplus in excess of $500,000,000 or the foreign currency equivalent thereof and whose long-term debt is rated βAβ or the equivalent thereof by Moodyβs or S&P (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency);
(e) repurchase obligations for underlying securities of the types described in clauses (b)Β and (d)Β above entered into with any financial institution meeting the qualifications specified in clause (d)Β above;
(f) commercial paper issued by a corporation (other than an Affiliate of Borrower) rated at least βA-1β or the equivalent thereof by Moodyβs or S&P (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency) and in each case maturing within one year after the date of acquisition;
(g) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moodyβs or S&P in each case with maturities not exceeding two years from the date of acquisition;
(h) Indebtedness issued by persons (other than the Fund or any of its Affiliates) with a rating of βAβ or higher from S&P or βA-2β or higher from Moodyβs (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency) in each case with maturities not exceeding two years from the date of acquisition; and
(i) investment funds investing at least 95% of their assets in securities of the types described in clauses (a)Β through (h)Β above.
βPermitted Refinancing Indebtednessβ shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to βRefinanceβ), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a)Β the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses), (b)Β the average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to that of the Indebtedness being Refinanced, (c)Β if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment
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to such Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, (d)Β no Permitted Refinancing Indebtedness shall have obligors that are not Loan Parties hereunder, or greater guarantees or security, than the Indebtedness being Refinanced, (e)Β if the Indebtedness being Refinanced is secured by any collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral (including in respect of Indebtedness of Foreign Subsidiaries that are not Loan Parties otherwise permitted under this Agreement only, any collateral pursuant to after-acquired property clauses to the extent any such collateral secured the Indebtedness being Refinanced) on terms no less favorable to the Secured Parties than those contained in the documentation (including any intercreditor agreement) governing the Indebtedness being Refinanced, (f)Β in the case of any Permitted Subordinated Indebtedness, the Senior Notes or the Senior Subordinated Notes, has no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments, other than regularly scheduled payments of interest, and (g)Β in the case of the Bridge Financing, otherwise satisfies the requirements set forth in clause (b)Β of the definition of βSenior Subordinated Notesβ.
βPermitted Subordinated Indebtednessβ means any unsecured Indebtedness that (a)Β is expressly subordinated to the prior payment in full in cash of the Obligations on terms and conditions no less favorable to the Lenders than the subordination terms and conditions of the Senior Subordinated Exchange Notes, (b)Β will not mature prior to the date that is 6 months after the scheduled Term Facility Maturity Date, (c)Β has no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments, (d)Β has covenant, default and remedy provisions, in the aggregate, substantially as set forth in the Senior Subordinated Notes Indenture or otherwise no more restrictive or expansive in scope than those contained in Senior Notes Indenture (except as may be appropriate for senior subordinated notes in high yield debt offerings), and (e)Β has provisions relating to mandatory prepayment, repurchase, redemption and offers to purchase, in the aggregate, no more onerous or expansive in scope than those contained in the Senior Subordinated Notes Indenture.
βPermitted Senior Indebtednessβ means any unsecured Indebtedness that (a)Β if issued by Holdings, is not subject to any Guarantee by the Borrower or any of its Subsidiaries, unless the Borrower or any Subsidiary Guarantees such Indebtedness and such Guarantees are permitted under this Agreement, (b)Β will not mature prior to the date that is 6 months after the scheduled Term Facility Maturity Date, (c)Β has no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments, (d)Β has covenant, default and remedy provisions, in the aggregate, no more restrictive or expansive in scope than those in the Senior Notes Indenture, taken as a whole, and (e)Β has provisions relating to mandatory prepayment, repurchase, redemption and offers to purchase, in the aggregate, no more onerous or expansive in scope than those contained in the Senior Notes Indenture (it being understood that this definition shall not restrict any voluntary prepayments, repurchases, redemptions or offers to purchase).
βpersonβ shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
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βPlanβ shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or SectionΒ 412 of the Code and in respect of which Holdings, the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under SectionΒ 4069 of ERISA be deemed to be) an βemployerβ as defined in SectionΒ 3(5) of ERISA.
βPlatformβ shall have the meaning assigned to such term in SectionΒ 9.18(b).
βPledged Collateralβ shall have the meaning assigned to such term in the Guarantee and Collateral Agreement or a Foreign Pledge Agreement, as applicable.
βPresumed Tax Rateβ shall mean the highest effective marginal statutory combined U.S. federal, state and local income tax rate prescribed for an individual residing in New York City (taking into account (a)Β the deductibility of state and local income taxes for U.S. federal income tax purposes, assuming the limitation of SectionΒ 68(a)(2) of the Code applies and taking into account any impact of SectionΒ 68(f) of the Code, and (b)Β the character (long-term or short-term capital gain, dividend income or other ordinary income) of the applicable income).
βPricing Gridβ shall mean the table set forth below:
Β
Senior Secured Bank Leverage Ratio |
Β Β | ApplicableΒ Margin for ABR Revolving Loans |
Β | Β | ApplicableΒ MarginΒ for Revolving Loans |
Β |
Greater than 2.50 to 1.00 |
Β Β | 1.75 | % | Β | 2.75 | % |
Greater than 2.00 to 1.00 and equal to or less than 2.50 to 1.00 |
Β Β | 1.50 | % | Β | 2.50 | % |
Greater than 1.50 to 1.00 and equal to or less than 2.00 to 1.00 |
Β Β | 1.25 | % | Β | 2.25 | % |
Equal to or less than 1.50 to 1.00 |
Β Β | 1.00 | % | Β | 2.00 | % |
For the purposes of the Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Leverage Ratio shall become effective on the date (the βAdjustment Dateβ) that is three Business Days after the date on which financial statements are delivered to the Lenders pursuant to SectionΒ 5.04, commencing with the delivery of such financial statements for the first fiscal quarter of the Borrower commencing after the Closing Date, and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in SectionΒ 5.04, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Pricing Grid shall apply. In addition, at all times while a Default or an Event of Default shall have occurred and be continuing, the highest rate set forth in each column of the Pricing Grid shall apply.
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βprimary obligorβ shall have the meaning assigned to such term in the definition of the term βGuarantee.β
βPro Forma Basisβ shall mean, as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the four consecutive fiscal quarter period ended on or before the occurrence of such event (the βReference Periodβ): (i)Β in making any determination of EBITDA, pro forma effect shall be given to any Asset Disposition and to any Asset Acquisition (or any similar transaction or transactions that require a waiver or a consent of the provisions of SectionΒ 6.04 or SectionΒ 6.05 by the Required Lenders pursuant to SectionΒ 9.08 and such waiver or consent has been obtained in accordance with the terms hereof), in each case that occurred during the Reference Period (or, in the case of determinations made pursuant to the definition of the term βPermitted Business Acquisition,β or pursuant to SectionΒ 2.11(b), SectionΒ 6.01(s), SectionΒ 6.01(t), SectionΒ 6.02(c), SectionΒ 6.02(i), SectionΒ 6.02(l), SectionΒ 6.08(b) or SectionΒ 6.09(b) occurring during the Reference Period or thereafter and through and including the date upon which the respective Permitted Business Acquisition or incurrence or cancellation of Indebtedness or incurrence, creation, assumption or acquisition of Liens is consummated); (ii)Β in making any determination on a Pro forma Basis, (A)Β all Indebtedness (including Indebtedness incurred or assumed and for which the financial effect is being calculated, whether incurred under this Agreement or otherwise, but excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes and not to finance any acquisition) incurred or permanently repaid during the Reference Period (or, in the case of determinations made pursuant to the definition of the term βPermitted Business Acquisition,β or pursuant to SectionΒ 2.11(b), SectionΒ 6.01(s), SectionΒ 6.01(t), SectionΒ 6.02(c), SectionΒ 6.02(i), SectionΒ 6.02(l), SectionΒ 6.08(b) or SectionΒ 6.09(b) occurring during the Reference Period or thereafter and through and including the date upon which the respective Permitted Business Acquisition or incurrence of Indebtedness or Liens or Dividend is consummated) shall be deemed to have been incurred or repaid at the beginning of such period and (B)Β Interest Expense of such person attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (A), bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period for which pro forma effect is being given had been actually in effect during such periods; and (iii)Β for purposes of SectionΒ 6.08(b)(ii)(B), Indebtedness of Holdings to be incurred thereunder, in making any determination on a Pro Forma Basis, such Indebtedness shall be deemed to be Indebtedness of (including all prior Indebtedness incurred under SectionΒ 6.08(b)(ii)(B)), and incurred by, the Borrower.
Pro forma calculations made pursuant to the definition of this term βPro Forma Basisβ shall be determined in good faith by a Responsible Officer of the Borrower. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Borrower, to reflect operating expense reductions, other operating improvements or synergies reasonably expected to result from the applicable pro forma event (including, to the extent applicable, from the Transactions) in the 12-month period following the consummation of the pro forma event. The Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower setting forth such demonstrable or additional
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operating expense reductions and other operating improvements or synergies and information and calculations supporting them in reasonable detail.
βPro Forma Closing Balance Sheetβ shall have the meaning assigned to such term in SectionΒ 3.05(a)(i).
βPro Forma Closing EBITDAβ shall mean, βPro Forma Adjusted EBITDAβ as calculated in the Offering Circular.
βPro Forma Closing Financial Statementsβ shall have the meaning assigned to such term in SectionΒ 3.05.
βPro Forma Closing Income Statementsβ shall have the meaning assigned to such term in SectionΒ 3.05.
βPro Forma Complianceβ shall mean, at any date of determination, that the Borrower shall be in pro forma compliance with the covenants set forth in Sections 6.10 and 6.11 as of the date of such determination or the last day of the most recent fiscal quarter-end, as the case may be (computed on the basis of (a)Β balance sheet amounts as of such date and (b)Β income statement amounts for the most recently completed period of four consecutive fiscal quarters for which financial statements shall have been delivered to the Administrative Agent and calculated on a Pro forma Basis in respect of the event giving rise to such determination).
βProjectionsβ shall mean the projections of the Borrower and the Subsidiaries included in the Information Memorandum and any other projections and any forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of Holdings, the Borrower or any of the Subsidiaries prior to the Closing Date.
βPurchase Agreementβ shall have the meaning assigned to such term in the recitals hereto.
βRateβ shall have the meaning assigned to such term in the definition of the term βType.β
βReference Periodβ shall have the meaning assigned to such term in the definition of the term βPro forma Basis.β
βRefinanceβ shall have the meaning assigned to such term in the definition of the term βPermitted Refinancing Indebtedness,β and βRefinancedβ shall have a meaning correlative thereto.
βRegisterβ shall have the meaning assigned to such term in SectionΒ 9.04(b).
βRegulation Uβ shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
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βRegulation Xβ shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
βRelated Fundβ shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar extensions of credit, any other fund that invests in bank or commercial loans and similar extensions of credit and is advised or managed by (a)Β such Lender, (b)Β an Affiliate of such Lender or (c)Β an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.
βRelated Partiesβ shall mean, with respect to any specified person, such personβs Affiliates and the respective directors, officers, employees, agents and advisors of such person and such personβs Affiliates.
βReleaseβ shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the environment.
βRemaining Present Valueβ shall mean, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.
βReportable Eventβ shall mean any reportable event as defined in SectionΒ 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in SectionΒ 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)Β or (o)Β of SectionΒ 414 of the Code).
βRepricing Transactionβ means any repayment, refinancing, substitution or replacement, in whole or in part, of principal of outstanding Tranche B Term Loans, directly or indirectly, from the net proceeds of any Indebtedness of Holdings, the Borrower or any of its Subsidiaries having an effective interest rate margin or weighted average yield (as determined by the Administrative Agent consistent with generally accepted financial practice) that is less than the Applicable Margin for, or weighted average yield (as determined by the Administrative Agent on the same basis) of, the Tranche B Term Loans, including, without limitation, as may be effected through any Incremental Term Loans or any other new or additional loans under this Agreement or by an amendment of any provisions of this Agreement relating to the Applicable Margin for, or weighted average yield of, the Tranche B Term Loans.
βRequired Lendersβ shall mean, at any time, Lenders having (a)Β Loans (other than Swingline Loans) outstanding, (b)Β L/C Exposure, (c)Β Swingline Exposure and (d)Β Available Unused Commitments that, taken together, represent more than 50% of the sum of (w)Β all Loans (other than Swingline Loans) outstanding, (x)Β L/C Exposure, (y)Β Swingline Exposure and (z)Β the total Available Unused Commitments at such time. The Loans, L/C Exposure, Swingline Exposure and Available Unused Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
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βRequired Percentageβ shall mean, with respect to an Excess Cash Flow Period (or Excess Cash Flow Interim Period), 50%; provided, that (a)Β if the Senior Secured Bank Leverage Ratio at the end of any Excess Cash Flow Period (or Excess Cash Flow Interim Period) is (i)Β less than or equal to 2.50 to 1.00, the Required Percentage shall be 25% and (ii)Β less than or equal to 1.75 to 1.00, the Required Percentage shall be 0% and (b)Β with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim Period) or portion thereof occurring prior to JulyΒ 1, 2006, the Required Percentage shall be 0%.
βResponsible Officerβ of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.
βRetained Percentageβ shall mean, with respect to any Excess Cash Flow Period (or Excess Cash Flow Interim Period), (a)Β 100% minus (b)Β the Required Percentage with respect to such Excess Cash Flow Period (or Excess Cash Flow Interim Period).
βRevolving Availability Periodβ shall mean, with respect to the Revolving Facility Commitments, the period from and including the Closing Date to but excluding the earlier of the Revolving Facility Maturity Date and the date of termination of the Revolving Facility Commitments.
βRevolving Facility Borrowingβ shall mean a Borrowing comprised of Revolving Facility Loans.
βRevolving Facility Commitmentβ shall mean, with respect to any Revolving Facility Lender, such Lenderβs commitment to make Revolving Facility Loans pursuant to SectionΒ 2.01, expressed as an amount representing the maximum aggregate permitted amount of such Lenderβs Revolving Facility Exposure hereunder, as such commitment may be (a)Β reduced from time to time pursuant to SectionΒ 2.08 and (b)Β reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 2.20 or pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04. The initial amount of each Lenderβs Revolving Facility Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance or Incremental Assumption Agreement pursuant to which such Lender shall have assumed its Revolving Facility Commitment, as applicable. The initial aggregate amount of the Lendersβ Revolving Facility Commitments is $100,000,000.
βRevolving Facility Exposureβ shall mean, at any time, the sum of the aggregate principal amount of the Revolving Facility Loans outstanding at such time and the aggregate L/C Exposure at such time; provided, that for purposes of Sections 2.01(b), 2.04(a)(ii), 2.05(b)(ii), 2.08(b)(ii) and 2.11(d), βRevolving Facility Exposureβ shall also include the aggregate Swingline Exposure at such time. The Revolving Facility Exposure of any Lender at any time shall be such Lenderβs Applicable Percentage of the total Revolving Facility Exposure at such time.
βRevolving Facility Lenderβ shall mean a Lender with a Revolving Facility Commitment or with outstanding Revolving Facility Exposure, or an Incremental Revolving Facility Lender.
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βRevolving Facility Loansβ shall mean a loan made by a Revolving Facility Lender pursuant to SectionΒ 2.01(b) and Other Revolving Facility Loans. Each Revolving Facility Loan shall be a Eurocurrency Loan or an ABR Loan.
βRevolving Facility Maturity Dateβ shall mean OctoberΒ 17, 2011.
βS&Pβ shall mean StandardΒ & Poorβs Ratings Group, Inc.
βSale and Lease-Back Transactionβ shall have the meaning assigned to such term in SectionΒ 6.03.
βSECβ shall mean the Securities and Exchange Commission or any successor thereto.
βSecured Partiesβ shall mean the βSecured Partiesβ as defined in the Guarantee and Collateral Agreement.
βSecurities Actβ shall mean the Securities Act of 1933, as amended.
βSecurity Documentsβ shall mean the Mortgages, the Guarantee and Collateral Agreement, the Foreign Pledge Agreements, the Intellectual Property Security Agreement and each of the security agreements, mortgages and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to SectionΒ 5.11, in each case, as amended from time to time in accordance with the terms hereof and thereof.
βSecurity Trust Deedβ shall mean a security trust deed entered into between the Administrative Agent, as security trustee thereunder, and the applicable grantors thereunder, in form and substance reasonably acceptable to the Administrative Agent.
βSellerβ shall have the meaning assigned to such term in the recitals hereto.
βSeller Preferred Equityβ shall mean the Seller Preferred Stock, as amended from time to time in accordance with the terms hereof and thereof.
βSeller Preferred Equity Documentsβ shall mean the certificate of designation governing the Seller Preferred Stock and the Securityholder Rights Agreement dated as of the date hereof among Holdings, Affinion Group Holdings, LLC and Cendant, in each case as amended from time to time in accordance with the terms hereof and thereof.
βSeller Preferred Stockβ shall mean the Series A Redeemable Exchangeable Preferred Stock issued by Holdings on OctoberΒ 17, 2005, plus any accrued and unpaid dividends paid-in-kind with respect to the Seller Preferred Stock from and after the Closing Date.
βSeller Warrantsβ shall mean the Warrant to Purchase Common Stock of Holdings dated OctoberΒ 17, 2005, or any warrant or warrants issued in connection with the partial exercise thereof, in each case as amended from time to time in accordance with the terms hereof and thereof.
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βSenior Notesβ shall mean $270,000,000 in initial aggregate principal amount of 10.125% Senior Notes due 2013 yielding gross cash proceeds of $266,387,400 on or prior to the Closing Date, and such additional 10.125% Senior Notes due 2013 or Senior Notes with the same terms other than coupon and maturity date, which may be the same as or later than (but not earlier than) the maturity date of 10.125% Senior Notes due 2013.
βSenior Notes Documentsβ shall mean the Senior Notes, the Senior Notes Indenture and any documents, supplements, instruments and agreements delivered in connection therewith.
βSenior Notes Indentureβ shall mean the indenture, dated as of OctoberΒ 17, 2005, among the Borrower, the Subsidiary Guarantors parties thereto and Xxxxx Fargo Bank, N.A., under which the Senior Notes are issued, as amended and supplemented from time to time in accordance with the terms hereof and thereof.
βSenior Secured Bank Debtβ at any date shall mean the aggregate principal amount of Consolidated Total Debt outstanding at such date that consists of, without duplication, net of the Unrestricted Cash and Permitted Investments of the Borrower and its Subsidiaries on such date, (i)Β Term Loans, Revolving Facility Exposure or Other Revolving Facility Loans and (ii)Β senior Indebtedness secured by a Lien (other than Indebtedness of a Subsidiary that is not a Loan Party secured by a Lien on assets of a Subsidiary that is not a Loan Party) under SectionΒ 6.02(a), (c), (i), (j)Β or (l)Β but only to the extent securing Indebtedness (in each case of clauses (i)Β and (ii), other than letters of credit to the extent undrawn and not supporting Indebtedness of the type included in Consolidated Debt).
βSenior Secured Bank Leverage Ratioβ shall mean, on any date, the ratio of (a)Β Senior Secured Bank Debt as of such date to (b)Β EBITDA for the period of four consecutive fiscal quarters of the Borrower most recently ended as of such date for which financial statements are available (such EBITDA, prior to any adjustments on a Pro Forma Basis, to be as determined from the certificate delivered pursuant to SectionΒ 5.04(c) for such period), all determined on a consolidated basis in accordance with GAAP; provided, that to the extent any Asset Disposition or any Asset Acquisition (or any similar transaction or transactions that require a waiver or a consent of the provisions of SectionΒ 6.04 or SectionΒ 6.05 by the Required Lenders pursuant to SectionΒ 9.08 and such waiver or consent has been obtained in accordance with the terms hereof), including the Transactions, has occurred during the relevant Test Period, EBITDA shall be determined for the respective Test Period on a Pro Forma Basis for such occurrences.
βSenior Subordinated Exchange Notesβ shall mean the Senior Subordinated Exchange Notes to be issued under the Senior Subordinated Exchange Notes Indenture in accordance with the provisions of the Bridge Loan Agreement.
βSenior Subordinated Exchange Notes Documentsβ shall mean the Senior Subordinated Exchange Notes, the Senior Subordinated Exchange Notes Indenture and any documents, supplements, instruments and agreements delivered in connection therewith.
βSenior Subordinated Exchange Notes Indentureβ shall mean, upon execution and delivery thereof, or if earlier, the finalization of the agreed form thereof pursuant to the
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provisions of the Bridge Loan Agreement, the βSenior Subordinated Exchange Notes Indentureβ, as such term is defined in the Bridge Loan Agreement, as may be amended and supplemented from time to time in accordance with the terms hereof and thereof.
βSenior Subordinated Notesβ shall mean, collectively, or any of, as the context may require, (a)Β the Senior Subordinated Exchange Notes, (b)Β if the Bridge Financing shall have been funded on the Closing Date, any Senior Subordinated Notes issued by the Borrower that (i)Β the aggregate principal amount of which does not to exceed the aggregate outstanding principal amount of the Bridge Financing to be repaid with the proceeds thereof plus unpaid accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses required to be paid in connection therewith, (ii)Β are expressly subordinated to the prior payment in full in cash of the Obligations on terms and conditions no less favorable to the Lenders than the subordination terms and conditions of the Senior Subordinated Exchange Notes, (iii)Β will not mature prior to the date that is 6 months after the scheduled Term Facility Maturity Date, (iv)Β have no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments, (v)Β have covenant, default and remedy provisions, in the aggregate, substantially as set forth in the Senior Subordinated Exchange Notes Indenture or otherwise (or if the Senior Subordinated Exchange Notes Indenture has not been agreed to or executed and delivered) no more restrictive or expansive in scope than those contained in Senior Notes Indenture (except as may be appropriate for senior subordinated notes in high yield debt offerings), and (vi)Β have provisions relating to mandatory prepayment, repurchase, redemption and offers to purchase, in the aggregate, no more onerous or expansive in scope than those contained in the Senior Subordinated Exchange Notes Indenture (or, if the Senior Subordinated Exchange Notes Indenture has not been agreed to or executed and delivered, customary for publicly traded senior subordinated high yield debt securities as determined in the reasonable judgment of the Administrative Agent) , and (c)Β if senior subordinated notes of the Borrower are to be issued on or prior to the Closing Date in lieu of the Bridge Financing, any Senior Subordinated Notes issued by the Borrower in an aggregate principal amount not to exceed $383,612,600 on terms and conditions reasonably satisfactory to the Administrative Agent, it being agreed that the terms and conditions of the Senior Subordinated Exchange Notes are satisfactory to the Administrative Agent.
βSenior Subordinated Notes Documentsβ shall mean, collectively, (a)Β the Senior Subordinated Exchange Notes Documents, and (b)Β to the extent not constituting Senior Subordinated Exchange Notes Documents, the Senior Subordinated Notes, the Senior Subordinated Notes Indenture and any documents, supplements, instruments and agreements delivered in connection therewith.
βSenior Subordinated Notes Indentureβ shall mean, collectively, or either, as the context may require, (a)Β the Senior Subordinated Exchange Notes Indenture, and (b)Β the indenture under which the Senior Subordinated Notes (other than Senior Subordinated Exchange Notes) are issued, each as amended and supplemented from time to time in accordance with the terms hereof and thereof.
βSimilar Businessβ shall mean any business or activity of the Borrower or any of its Subsidiaries currently conducted or proposed as of the Closing Date, or any business or
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activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof, or is complementary, incidental, ancillary or related thereto.
βStatutory Reservesβ shall mean, with respect to any currency, the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in such currency, expressed in the case of each such requirement as a decimal. Such reserve percentages shall, in the case of U.S.Β Dollar-denominated Loans, include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
βSterlingβ or βΒ£β shall mean the lawful money of the United Kingdom.
βSubagentβ shall have the meaning assigned to such term in SectionΒ 8.02.
βsubsidiaryβ shall mean, with respect to any person (herein referred to as the βparentβ), any corporation, partnership, association or other business entity (a)Β of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b)Β that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
βSubsidiaryβ shall mean, unless the context otherwise requires, a subsidiary of the Borrower other than any Unrestricted Subsidiary.
βSubsidiary Loan Partyβ shall mean each Wholly Owned Domestic Subsidiary other than (a)Β Safecard Services Insurance Co., (b)Β any Banking Subsidiary, (c)Β any Unrestricted Subsidiary and (d)Β to the extent prohibited Applicable Insurance Laws and Regulations, any Insurance Subsidiary.
βSubsidiary Spin-offβ shall mean each Subsidiary listed on Schedule 1.01(c).
βSwap Agreementβ shall mean any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Holdings, the Borrower or any of the Subsidiaries shall be a Swap Agreement.
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βSwingline Borrowingβ shall mean a Borrowing comprised of Swingline Loans.
βSwingline Borrowing Requestβ shall mean a request by the Borrower substantially in the form of Exhibit C-2.
βSwingline Commitmentβ shall mean, with respect to each Swingline Lender, the commitment of such Swingline Lender to make Swingline Loans pursuant to SectionΒ 2.04. The initial aggregate amount of the Swingline Commitments is $20,000,000.
βSwingline Exposureβ shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
βSwingline Lenderβ shall mean Credit Suisse, in its capacity as a lender of Swingline Loans.
βSwingline Loansβ shall mean the swingline loans made to the Borrower pursuant to SectionΒ 2.04.
βSyndication Agentβ shall have the meaning assigned to such term in the preamble hereto.
βTaxesβ shall mean any and all present or future taxes, levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges) or withholdings imposed by any Governmental Authority and any and all interest and penalties related thereto.
βTerm Borrowingβ shall mean a Borrowing comprised of Term Loans.
βTerm Facility Maturity Dateβ shall mean OctoberΒ 17, 2012.
βTerm Loan Commitmentβ shall mean a Tranche B Term Loan Commitment. The aggregate amount of the Term Loan Commitments on the Closing Date is $860,000,000.
βTerm Loan Installment Dateβ shall have the meaning assigned to such term in SectionΒ 2.10(a).
βTerm Loansβ shall mean Tranche B Term Loans and Other Term Loans.
βTest Periodβ shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Borrower then most recently ended (taken as one accounting period).
βTrancheβ shall mean a category of Commitments and extensions of credits thereunder. For purposes hereof, each of the following comprises a separate Tranche: (a)Β the Revolving Facility Commitments and the Revolving Facility Loans and (b)Β the Tranche Commitments and the Tranche B Term Loans.
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βTranche B Lenderβ shall mean a Lender with a Tranche B Term Loan Commitment or an outstanding Tranche B Term Loan.
βTranche B Term Loan Commitmentβ shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Tranche B Term Loans hereunder on the Closing Date, expressed as an amount representing the maximum aggregate permitted principal amount of the Tranche B Term Loans to be made by such Lender hereunder, as such commitment may be (a)Β reduced from time to time pursuant to SectionΒ 2.08 and (b)Β reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 2.20 or pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04. The initial amount of each Lenderβs Tranche B Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or Incremental Assumption Agreement pursuant to which such Lender shall have assumed its Tranche B Term Loan Commitment, as applicable. The initial aggregate amount of the Lendersβ Tranche B Term Loan Commitments is $860,000,000.
βTranche B Term Loansβ shall mean the term loans made by the Lenders to the Borrower pursuant to clause (a)Β of SectionΒ 2.01.
βTransaction Documentsβ shall mean the Purchase Agreement and all material exhibits and schedules thereto and all agreements expressly contemplated thereby, the Loan Documents, the Senior Notes Documents, the Bridge Financing Documents and/or, as applicable, the Senior Subordinated Notes Documents and the Equity Financing Documents, in each case as amended from time to time in accordance with the terms hereof and thereof.
βTransactionsβ shall mean, collectively, the transactions to occur pursuant to the Transaction Documents, including (a)Β the Acquisition; (b)Β the execution and delivery of the Loan Documents and the initial borrowings hereunder; (c)Β the Equity Financing; (d)Β the issuance, and initial purchase, of the Senior Notes; (e)Β the funding of the Bridge Financing (and the refinancing thereof with Senior Subordinated Notes (including the exchange therefor for Senior Subordinated Exchange Notes)) or the issuance, and initial purchase, of the Senior Subordinated Notes (as contemplated be clause (c)Β of the definition of βSenior Subordinated Notesβ); and (e)Β the payment of all fees and expenses in connection therewith to be paid on, prior to or subsequent to the Closing Date and owing in connection with the foregoing.
βType,β when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term βRateβ shall include the Adjusted Eurocurrency Rate and ABR.
βUnrestricted Cashβ shall mean cash or cash equivalents of the Borrower or any of its Subsidiaries that would not appear as βrestrictedβ on a consolidated balance sheet of the Borrower or any of its Subsidiaries.
βUnrestricted Subsidiaryβ shall mean (i)Β any subsidiary of the Borrower identified on Schedule 1.01(d) hereto and (ii)Β any additional subsidiary of the Borrower designated as such by the Borrower that, together with all other Unrestricted Subsidiaries designated pursuant to this clause (ii), constitutes in the aggregate less than 5% of (A)Β aggregate
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EBITDA on a trailing twelve monthsβ basis and (B)Β Consolidated Total Assets at such date of determination; provided, that, at any time an Unrestricted Subsidiary designation pursuant to this clause (ii)Β causes the aggregate EBITDA or aggregate assets test set forth above to no longer be satisfied, the Unrestricted Subsidiary or Unrestricted Subsidiaries, as applicable, that has or have either the highest sales or the largest book value of assets, as applicable, of all such Unrestricted Subsidiaries as of the date of the most recent financial statements delivered pursuant to SectionΒ 5.04(a) or (b)Β shall automatically constitute a Subsidiary and cease to constitute an Unrestricted Subsidiary and the Borrower shall promptly cause the appropriate Security Documents to be executed and delivered to the Administrative Agent (such that, following such conversion of each such Unrestricted Subsidiary to a Subsidiary, the Collateral and Guarantee Requirement shall be satisfied and the remaining Unrestricted Subsidiaries shall satisfy this definition); provided, that the EBITDA attributable to Banking Subsidiaries that are Unrestricted Subsidiaries shall not be included in the foregoing determination, only so long as the cumulative amount of Investments made by the Borrower and its Subsidiaries in Banking Subsidiaries does not exceed $20,000,000 in the aggregate.
βUnrestricted Travel Rewards Subsidiaryβ shall mean the Unrestricted Subsidiary of the Borrower the sole asset of which is a copy (but not the original) of the source code for the loyalty program established and/or to be established by Travel Rewards, Inc., a Delaware corporation.
βU.S.A. Patriot Actβ shall mean the U.S.A. Patriot Act, Title III of Pub.L. 107-56 (signed into law OctoberΒ 26, 2001).
βU.S. Dollarsβ or β$β shall mean lawful money of the United States of America.
βU.S. Lending Officeβ shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans to the Borrower.
βWholly Owned Subsidiaryβ of any person shall mean a subsidiary of such person, all of the Equity Interests of which (other than directorsβ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.
βWithdrawal Liabilityβ shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
βWorking Capitalβ shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided, that, for purposes of calculating Excess Cash Flow, increases or decreases in Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a)Β any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b)Β the effects of purchase accounting.
βYear To Date Excess Cash Flowβ shall mean, at any time of determination with respect to any Excess Cash Flow Period, the Excess Cash Flow for the period commencing on
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the end of the immediately preceding Excess Cash Flow Period and ending on, as applicable, the last day of the most recent Excess Cash Flow Interim Period during such Excess Cash Flow Period or the last day of such Excess Cash Flow Period.
SECTION 1.02. Terms Generally. The definitions set forth or referred to in SectionΒ 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words βinclude,β βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitation.β All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
SECTION 1.03. Effectuation of Transfers. Each of the representations and warranties of Holdings and the Borrower contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions (or such portion thereof as shall be consummated as of the date of the applicable representation or warranty), unless the context otherwise requires.
SECTION 1.04. Currency Translation. For purposes of determining compliance as of any date with SectionΒ 6.01, 6.02, 6.03, 6.04, 6.05, 6.06 or 6.07, amounts incurred or outstanding in currencies other than U.S. Dollars shall be translated into U.S. Dollars at the exchange rates in effect on the first Business Day of the fiscal quarter in which such determination occurs or in respect of which such determination is being made, as such exchange rates shall be determined in good faith by the Borrower. No Default or Event of Default shall arise as a result of any limitation or threshold set forth in U.S. Dollars in SectionΒ 6.01, 6.02, 6.03, 6.04, 6.05, 6.06 or 6.07 or paragraph (f)Β or (j)Β of SectionΒ 7.01 being exceeded solely as a result of changes in currency exchange rates from those applicable on the first day of the fiscal quarter in which such determination occurs or in respect of which such determination is being made.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein:
(a) each Lender agrees to make Tranche B Term Loans to the Borrower in U.S. Dollars on the Closing Date from its U.S. Lending Office in a principal amount not to exceed its Tranche B Term Loan Commitment;
(b) each Revolving Lender agrees from time to time during the Revolving Availability Period to make Revolving Facility Loans in U.S. Dollars to the Borrower from its U.S. Lending Office in an aggregate principal amount that will not result in such Lenderβs Revolving Facility Exposure exceeding such Lenderβs Revolving Facility Commitment;
(c) each Lender having an Incremental Term Loan Commitment or an Incremental Revolving Facility Commitment agrees, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement, to make Incremental Term Loans to the Borrower and/or Incremental Revolving Facility Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, as the case may be; and
(d) within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Facility Loans. Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class (or, in the case of Swingline Loans, in accordance with their respective Swingline Commitments). The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lenderβs failure to make Loans as required.
(b) Subject to SectionΒ 2.14, each Borrowing (other than a Swingline Borrowing) shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance herewith. Each Swingline Borrowing shall be an ABR Borrowing. Each Lender at its option may make any ABR Loan or Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided, that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under SectionΒ 2.15 or 2.17 solely in respect of increased costs or taxes resulting from such exercise and existing at the time of such exercise.
(c) At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At the time that (i)Β each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by SectionΒ 2.05(e). Borrowings of
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more than one Type and Class may be outstanding at the same time; provided, that there shall not at any time be more than a total of (i)Β ten Eurocurrency Borrowings outstanding under each of the Tranche B Term Loans or any Other Term Loans and (ii)Β ten Eurocurrency Borrowings outstanding under each of the Revolving Facility or any Other Revolving Facility Loans.
(d) Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolving Facility Maturity Date or the Term Facility Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving Facility Borrowing and/or a Term Borrowing, the Borrower shall notify the Administrative Agent of such request (as provided in SectionΒ 9.01) by telephone (a)Β in the case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three Business Days before the date of the proposed Borrowing or (b)Β in the case of an ABR Borrowing, not later than 12:00 p.m., Local Time, one Business Day before the date of the proposed Borrowing; provided, that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an L/C Disbursement as contemplated by SectionΒ 2.05(e) may be given not later than 11:00 a.m., Local Time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with SectionΒ 2.02:
(i) the Class of such Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term βInterest Periodβ; and
(vi) the location and number of the Borrowerβs account to which funds are to be disbursed.
If no election as to the Type of Revolving Facility Borrowing is specified, then the requested Revolving Facility Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one monthβs duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenderβs Loan to be made as part of the requested Borrowing.
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SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in U.S. Dollars to the Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i)Β the Swingline Exposure exceeding the Swingline Commitment or (ii)Β the Revolving Facility Exposure exceeding the total Revolving Facility Commitments; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Borrowing. Each Swingline Borrowing shall be in an amount that is an integral multiple of $500,000, and not less than $1,000,000. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Borrowing, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by a Swingline Borrowing Request by telecopy), not later than 1:00 p.m., Local Time, on the day of a proposed Swingline Borrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i)Β the requested date (which shall be a Business Day) and (ii)Β the amount of the requested Swingline Borrowing. The Swingline Lender shall consult with the Administrative Agent as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline Lender funding such Swingline Loan. The Swingline Lender shall make each Swingline Loan to be made by it hereunder in accordance with SectionΒ 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Borrower (or, in the case of a Swingline Borrowing made to finance the reimbursement of an L/C Disbursement as provided in SectionΒ 2.05(e), by remittance to the applicable Issuing Bank).
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m., Local Time, on any Business Day require the Revolving Facility Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans made by it. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Revolving Facility Lender, specifying in such notice such Revolving Facility Lenderβs Applicable Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent for the account of the Swingline Lender, such Revolving Facility Lenderβs Applicable Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Facility Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in SectionΒ 2.06 with respect to Loans made by such Revolving Facility Lender (and SectionΒ 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to
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this paragraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided, that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. The Borrower may request issuance of Letters of Credit for its own account (or for the account of a Subsidiary, so long as the Borrower and such Subsidiary are co-applicants), in a form reasonably acceptable to the applicable Issuing Bank, at any time and from time to time during the Revolving Availability Period and prior to the date that is thirty days prior to the Revolving Facility Maturity Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension: Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal (other than an automatic renewal in accordance with paragraph (c)Β of this Section) or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (three Business Days in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c)Β of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to issue, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bankβs standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i)Β the L/C Exposure shall not exceed the aggregate L/C Commitments and (ii)Β the total Revolving Facility Exposure shall not exceed the total Revolving Facility Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
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extension) and (ii)Β the date that is five Business Days prior to the Revolving Facility Maturity Date; provided, that any Letter of Credit with a one-year tenor may provide for the automatic renewal thereof for additional one-year periods (which, in no event, shall extend beyond the applicable date referred to in clause (ii)Β of this paragraph (c)).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Facility Lenders, such Issuing Bank hereby grants to each such Revolving Facility Lender, and each such Revolving Facility Lender hereby acquires from such Issuing Bank, a participation in such Revolving Letter of Credit equal to such Revolving Facility Lenderβs Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Facility Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent in U.S. Dollars, for the account of the applicable Issuing Bank, such Revolving Facility Lenderβs Applicable Percentage of (i)Β each L/C Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e)Β of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Facility Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. (i)Β If the applicable Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such L/C Disbursement by paying to the Issuing Bank an amount equal to such L/C Disbursement, not later than 2:00 P.M., Local Time, on (A)Β the Business Day that the Borrower receives notice under paragraph (g)Β of this Section of such L/C Disbursement, if such notice is received on such day prior to 10:00 A.M., Local Time, or (B)Β if clause (A)Β does not apply, the Business Day immediately following the date the Borrower receives such notice; provided, that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with SectionΒ 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or a Swingline Borrowing, as applicable, in an equivalent amount and, to the extent so financed, the Borrowerβs obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Borrowing.
(ii) If the Borrower fails to reimburse any L/C Disbursement when due, then the applicable Issuing Bank shall promptly notify the Administrative Agent and each Revolving Facility Lender of the applicable L/C Disbursement, the payment then due from the Borrower in respect thereof and such Lenderβs Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Facility Lender shall pay to the Administrative Agent its Applicable Percentage in U.S. Dollars of the payment then due from the Borrower in the same manner as provided in SectionΒ 2.06 with respect to Loans made by such Lender (and SectionΒ 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from such Revolving Facility Lenders. Promptly following receipt by the Administrative
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Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Facility Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Facility Lender pursuant to this paragraph to reimburse an Issuing Bank for any L/C Disbursement (other than the funding of an ABR Revolving Borrowing or a Swingline Borrowing as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such L/C Disbursement.
(f) Obligations Absolute. The obligation of the Borrower to reimburse L/C Disbursements as provided in paragraph (e)Β of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i)Β any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii)Β any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii)Β payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv)Β any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowerβs obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank, or any of the circumstances referred to in clauses (i), (ii)Β or (iii)Β of the first sentence; provided, that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are determined by a final and binding decision of a court of competent jurisdiction to have been caused by (i)Β such Issuing Bankβs failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (ii)Β such Issuing Bankβs refusal to issue a Letter of Credit in accordance with the terms of this Agreement. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Bank, such Issuing Bank shall be deemed to have exercised care in each such determination and each refusal to issue a Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
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(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make a L/C Disbursement thereunder; provided, that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Facility Lenders with respect to any such L/C Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement, then, unless the Borrower shall reimburse such L/C Disbursement in full on the date such L/C Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such L/C Disbursement is made to but excluding the date that the Borrower reimburses such L/C Disbursement at the rate per annum then applicable to ABR Revolving Loans; provided, that if such L/C Disbursement is not reimbursed by the Borrower when due pursuant to paragraph (e)(ii) of this Section, then SectionΒ 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Facility Lender pursuant to paragraph (e)Β of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Facility Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to SectionΒ 2.12(b). From and after the effective date of any such replacement, (i)Β the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)Β references herein to the term βIssuing Bankβ shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of such Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, (i)Β in the case of an Event of Default described in SectionΒ 7.01(h) or (i), on the Business Day or (ii)Β in the case of any other Event of Default, on the third Business Day, in each case, following the date on which the Borrower receives notice from the Administrative Agent (or, if the maturity of the Loans has been accelerated, Revolving Facility Lenders with L/C Exposure representing greater than 50% of the total L/C Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash in U.S. Dollars equal to the aggregate L/C Exposure as of such date plus any accrued and unpaid interest thereon; provided, that upon the occurrence of any Event of Default with respect to the Borrower described in clause (h)Β or (i)Β of SectionΒ 7.01, the obligation
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to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind. Each such deposit pursuant to this paragraph shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of (i)Β for so long as an Event of Default shall be continuing, the Administrative Agent and (ii)Β at any other time, the Borrower, in each case, in Permitted Investments and at the risk and expense of the Borrower, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account with respect to Letters of Credit issued shall be applied by the Administrative Agent to reimburse each Issuing Bank for L/C Disbursements made in respect of Letters of Credit issued for which such Issuing Bank has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Facility Lenders with L/C Exposure representing greater than 50% of the total L/C Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. From time to time, the Borrower may by notice to the Administrative Agent designate up to four Lenders (in addition to Credit Suisse), each of which agrees (in its sole discretion) to act in such capacity and each of which is reasonably satisfactory to the Administrative Agent as an Issuing Bank. Each such additional Issuing Bank shall execute a counterpart of this Agreement upon the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder for all purposes.
(l) Issuing Bank Agreements. Unless otherwise requested by the Administrative Agent, each Issuing Bank shall report in writing to the Administrative Agent (i)Β on the first Business Day of each month, the daily activity (set forth by day) in respect of Letters of Credit during the immediately preceding month, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii)Β on or prior to each Business Day on which such Issuing Bank expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the aggregate face amount of the Letters of Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension occurred (and whether the amount thereof changed), it being understood that such Issuing Bank shall not permit any issuance, renewal, extension or amendment resulting in an increase in the amount of any Letter of Credit to occur without first obtaining written (or, with respect to any Issuing Bank, if the Administrative Agent so agrees with respect to such Issuing Bank, telephonic) confirmation from the Administrative Agent that it is then permitted under this Agreement, (iii)Β on each Business Day on which such Issuing Bank makes any L/C Disbursement in respect of any Letter of Credit issued, the date of such L/C Disbursement and the amount of such L/C Disbursement, (iv)Β on any Business Day on which the
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Borrower fails to reimburse an L/C Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such L/C Disbursement and (v)Β on any other Business Day, such other information as the Administrative Agent shall reasonably request.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided, that Swingline Loans shall be made as provided in SectionΒ 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided, that ABR Revolving Loans and Swingline Borrowings made to finance the reimbursement of a L/C Disbursement and reimbursements as provided in SectionΒ 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lenderβs share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a)Β of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower agrees to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i)Β in the case of such Lender, the greater of (A)Β (1)Β the Federal Funds Rate, and (2)Β the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount, and (B)Β a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii)Β in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenderβs Loan included in such Borrowing. If the Borrower pays such amount to the Administrative Agent, then such amount shall constitute a reduction of such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans resulting from an election made with respect to any such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.
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(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election (as provided in SectionΒ 9.01) by telephone, in the case of an election that would result in a Borrowing, by the time that a Borrowing Request would be required under SectionΒ 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower. Notwithstanding any other provision of this Section, the Borrower shall not be permitted to (i)Β change the currency of any Borrowing, (ii)Β elect an Interest Period for Eurocurrency Loans that does not comply with SectionΒ 2.02(d) or (iii)Β convert any Borrowing to a Borrowing not available under the Class of Commitments pursuant to which such Borrowing was made.
(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with SectionΒ 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii)Β and (iv)Β below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting outstanding credit extension is to be an ABR Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term βInterest Period.β
If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one monthβs duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lenderβs portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i)Β no outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and (ii)Β unless repaid,
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each Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously terminated, the Revolving Facility Commitments shall terminate on the Revolving Facility Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Revolving Facility Commitments; provided, that (i)Β each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments) and (ii)Β the Borrower shall not terminate or reduce the Revolving Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with SectionΒ 2.11, the total Revolving Facility Exposure would exceed the total Revolving Facility Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Facility Commitments under paragraph (b)Β of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided, that a notice of termination of the Revolving Facility Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class pursuant to this SectionΒ 2.08 shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay (i)Β to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan of such Lender to the Borrower on the Revolving Facility Maturity Date, (ii)Β to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Term Loan of such Lender to the Borrower as provided in SectionΒ 2.10 and (iii)Β to the Swingline Lender the then unpaid principal amount of each Swingline Loan to the Borrower on the Revolving Facility Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i)Β the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any) applicable thereto, (ii)Β the amount of any principal or interest due and payable or to
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become due and payable from the Borrower to each Lender hereunder and (iii)Β any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lenderβs share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)Β or (c)Β of this Section shall be prima facie evidence of the existence, currencies and amounts of the obligations recorded therein; provided, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced by a promissory note (a βNoteβ). In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and reasonably acceptable to the Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to SectionΒ 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. Repayment of Term Loans and Revolving Facility Loans. (a) (i)Β Subject to the other paragraphs of this Section, the Borrower shall repay Tranche B Term Loans on each date set forth below in the aggregate principal amount set forth for such Borrowings opposite such date (each such date being referred to as a βTerm Loan Installment Dateβ):
Β
Date |
Β Β | TrancheΒ BΒ Term LoansΒ toΒ BeΒ Repaid | |
MarchΒ 31, 2006 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2006 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2006 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2006 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2007 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2007 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2007 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2007 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2008 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2008 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2008 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2008 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2009 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2009 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2009 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2009 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2010 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2010 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2010 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2010 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2011 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2011 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2011 | Β Β | $ | 2,150,000 |
DecemberΒ 31, 2011 | Β Β | $ | 2,150,000 |
MarchΒ 31, 2012 | Β Β | $ | 2,150,000 |
JuneΒ 30, 2012 | Β Β | $ | 2,150,000 |
SeptemberΒ 30, 2012 | Β Β | $ | 2,150,000 |
Term Facility Maturity Date | Β Β | $ | 801,950,000 |
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To the extent not previously paid, outstanding Term Loans shall be due and payable on the Term Facility Maturity Date.
(ii) In the event that any Incremental Term Loans are made on an Increased Amount Date, the Borrower shall repay such Incremental Term Loans on the dates and in the amounts set forth in the Incremental Assumption Agreement.
(b) To the extent not previously paid, outstanding Revolving Facility Loans shall be due and payable on the Revolving Facility Maturity Date; provided, that any Other Revolving Facility Loans shall be due and payable as set forth in the relevant Incremental Assumption Agreement.
(c) Prepayment of the Loans from:
(i) all Net Proceeds pursuant to SectionΒ 2.11(b) and Excess Cash Flow pursuant to SectionΒ 2.11(a)(ii) and SectionΒ 2.11(c) to be applied to prepay Term Loans of any Class shall be applied (A)Β to reduce in order of maturity the next twelve unpaid quarterly scheduled amortization payments under paragraph (a)Β above in respect of the Term Loans of such Class, and (B)Β thereafter, to reduce on a pro rata basis (based on the amount of such amortization payments) the remaining scheduled amortization payments in respect of the Term Loans of such Class; and
(ii) any optional prepayments of the Term Loans pursuant to SectionΒ 2.11(a)(i) shall be applied to the remaining installments thereof as directed by the Borrower.
(d) Prior to any repayment of any Loan or Loans hereunder, the Borrower shall select the Borrowing or Borrowings constituting such Loan or Loans to be repaid or reduced and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection (i)Β in the case of an ABR Borrowing, not later than 12:00 p.m., Local Time, one Business Day before the scheduled date of such repayment and (ii)Β in the case of a Eurocurrency Borrowing, not later than 12:00 p.m., Local Time, three Business Days before the scheduled date of such repayment or reduction. Any mandatory prepayment of Term Loans shall be applied so that the aggregate amount of such prepayment is allocated among the Tranche B Term Loans and Other Term Loans of each Class, if any, pro rata based on the aggregate principal amount of outstanding Loans of each such Class. In the case of prepayments under SectionΒ 2.11(a)(i), the Borrower may in its sole discretion select the Borrowing or Borrowings to be prepaid. Each
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repayment of a Borrowing within any Class shall be applied ratably to the Loans in such Class included in the repaid Borrowing. Notwithstanding anything to the contrary in the immediately preceding sentence, the Borrower shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 12:00 p.m., Local Time, on the scheduled date of such repayment. Repayments of Borrowings shall be accompanied by accrued interest on the amount repaid.
(e) Notwithstanding anything to the contrary, each prepayment of Term Loans pursuant to SectionΒ 2.11(a) made on or before the date that is one year after the Closing Date in connection with any Repricing Transaction shall be accompanied by a prepayment premium equal to 1.00% of the aggregate principal amount of each such prepayment.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right, in its sole discretion (a)Β at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty (but subject to SectionΒ 2.16), except as provided in SectionΒ 2.10(e), in an aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with SectionΒ 2.10(d), and (b)Β during any fiscal year, not later than 45 days after the end of any Excess Cash Flow Interim Period, to prepay the Term Loans in whole or in part in accordance with Sections 2.10(c) and (d), without premium or penalty (but subject to SectionΒ 2.16), in an amount equal to (the βExcess Cash Flow Early Prepaymentβ) the amount by which (A)Β the Required Percentage of Year to Date Excess Cash Flow as of the last of day of such Excess Cash Flow Interim Period exceeds (B)Β the sum of the aggregate principal amount of (1)Β voluntary prepayments of Term Loans previously made pursuant to this SectionΒ 2.11(a) (including Excess Cash Flow Early Prepayments for a prior Excess Cash Flow Interim Period in such fiscal year), and (2)Β permanent voluntary reductions of Revolving Facility Commitments pursuant to SectionΒ 2.08(b) to the extent that an equal amount of Revolving Facility Loans was simultaneously repaid pursuant to SectionΒ 2.11(a), in each case, during such fiscal year; provided, that (x)Β if the amount in clause (B)Β exceeds the amount in clause (A), the amount of Term Loans to be prepaid in connection with such Excess Cash Flow Prepayment shall be zero, (y)Β not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Interim Period under SectionΒ 5.04(b), the Borrower will deliver to the Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth the calculation thereof in reasonable detail, and (z)Β no more than two Excess Cash Flow Early Prepayments may be made in respect of any fiscal year.
(b) All Net Proceeds shall be applied promptly after receipt thereof to prepay Term Loans in accordance with paragraphs (c)Β and (d)Β of SectionΒ 2.10; provided, that no prepayments of the Term Loans shall be required hereunder from Net Proceeds pursuant to clause (b)Β of the definition thereof if, on the date of receipt thereof, and after giving effect to the repayment, redemption, incurrence, issuance or sale of any Indebtedness in connection with any transaction giving rise to such Net Proceeds on a Pro forma Basis, the Senior Secured Bank Leverage Ratio on the last day of the Borrowerβs then most recently completed fiscal quarter for which financial statements are available shall be less than or equal to 2.00 to 1.00.
(c) Not later than 90 days after the end of each Excess Cash Flow Period (or such later date, if any, on which the Borrower is permitted to deliver annual audited statements
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under SectionΒ 5.04(a), commencing with the Excess Cash Flow Period beginning on JulyΒ 1, 2006), the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow Period and an amount equal to the amount by which (A)Β the Required Percentage of such Excess Cash Flow exceeds (B)Β the sum of (1)Β the aggregate principal amount of voluntary prepayments of Term Loans pursuant to SectionΒ 2.11(a)(i), (2)Β permanent voluntary reductions of Revolving Facility Commitments pursuant to SectionΒ 2.08(b) to the extent that an equal amount of Revolving Facility Loans was simultaneously repaid pursuant to SectionΒ 2.11(a), and (3)Β the aggregate principal amount of Excess Cash Flow Early Prepayments pursuant to SectionΒ 2.11(a)(ii), in each case, during such Excess Cash Flow Period, shall be applied to prepay Term Loans in accordance with paragraphs (c)Β and (d)Β of SectionΒ 2.10; provided, that if the amount in clause (B)Β exceeds the amount in clause (A), no such prepayment of Term Loans shall be required. Not later than the date on which the Borrower is required to deliver financial statements with respect to the end of each Excess Cash Flow Period under SectionΒ 5.04(a), the Borrower will deliver to the Administrative Agent a certificate signed by a Responsible Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal year, the amount of any required prepayment and the calculation thereof in reasonable detail; provided, that no prepayments of the Term Loans shall be required hereunder from Excess Cash Flow and no such certificate need to be delivered if the Senior Secured Bank Leverage Ratio on the last day of the Borrowerβs then most recently completed fiscal quarter for which financial statements are available was less than or equal to 1.75 to 1.00 unless any Excess Cash Flow Early Prepayments were made during such Excess Cash Flow Period.
(d) In the event and on such occasion that the total Revolving Facility Exposure exceeds the total Revolving Facility Commitments, the Borrower shall prepay Revolving Facility Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to SectionΒ 2.05(j)) in an aggregate amount equal to such excess.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to each Revolving Facility Lender (other than any Defaulting Lender), through the Administrative Agent, three Business Days after the last day of March, June, September and December in each year, and three Business Days after the date on which the Revolving Facility Commitments of all the Revolving Facility Lenders shall be terminated as provided herein, a commitment fee (a βCommitment Feeβ) on the daily amount of the Available Unused Commitment of such Revolving Facility Lender during the preceding quarter (or other period commencing with the Closing Date or ending with the date on which the last of the Revolving Facility Commitments of such Lender shall be terminated), which shall accrue at a rate equal to the Applicable Margin. All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. For the purpose of calculating any Lenderβs Commitment Fee, the outstanding Swingline Loans during the period for which such Lenderβs Commitment Fee is calculated shall be deemed to be zero. The Commitment Fee due to each Revolving Facility Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the last of the Revolving Facility Commitments of such Lender shall be terminated as provided herein.
(b) The Borrower from time to time agrees to pay (i)Β to each Revolving Facility Lender (other than any Defaulting Lender), through the Administrative Agent, three Business Days after the last day of March, June, September and December of each year and three
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Business Days after the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a fee (an βL/C Participation Feeβ) on such Lenderβs Applicable Percentage of the daily aggregate L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements), during the preceding quarter (or shorter period commencing with the Closing Date or ending with the Revolving Facility Maturity Date or the date on which the Revolving Facility Commitments shall be terminated) at the rate per annum equal to the Applicable Margin for Eurocurrency Revolving Borrowings effective for each day in such period and (ii)Β to each Issuing Bank, for its own account, (x)Β three Business Days after the last day of March, June, September and December of each year and three Business Days after the date on which the Revolving Facility Commitments of all the Lenders shall be terminated as provided herein, a fronting fee in respect of each Letter of Credit issued by such Issuing Bank for the period from and including the date of issuance of such Letter of Credit to and including the termination of such Letter of Credit, computed at a rate equal to 1/4 of 1%Β per annum of the daily average stated amount of such Letter of Credit (or as otherwise agreed with such Issuing Bank), plus (y)Β in connection with the issuance, amendment or transfer of any such Letter of Credit or any L/C Disbursement thereunder, such Issuing Bankβs customary documentary and processing charges (collectively, βIssuing Bank Feesβ). All L/C Participation Fees and Issuing Bank Fees that are payable on a per annum basis shall be computed on the basis of the actual number of days elapsed in a year of 360 days.
(c) The Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent, the fees set forth in the Fee Letter dated as of JulyΒ 26, 2005, as amended, restated, supplemented or otherwise modified from time to time, at the times specified therein (the βAdministrative Agent Feesβ).
(d) All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that Issuing Bank Fees shall be paid directly to the applicable Issuing Banks. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the ABR plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted Eurocurrency Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i)Β in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii)Β in the case of any other amount, 2.00% plus the interest rate that would have applied had such amount, during the period of non-payment, constituted an ABR Loan; provided, that this paragraph (c)Β shall not apply to any Event of Default that has been waived by the Lenders pursuant to SectionΒ 9.08.
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(d) Accrued interest on each Loan shall be payable in arrears (i)Β on each Interest Payment Date for such Loan, (ii)Β in the case of Revolving Facility Loans, upon termination of the Revolving Facility Commitments and (iii)Β in the case of the Term Loans, on the Term Facility Maturity Date; provided, that (i)Β interest accrued pursuant to paragraph (c)Β of this Section shall be payable on demand, (ii)Β in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii)Β in the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to (A)Β the ABR at times when the ABR is based on the Prime Rate, (B)Β Loans in any jurisdiction where the relevant interbank market practice is to use a 365 or 366 day year, in each case shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable ABR or Adjusted Eurocurrency Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurocurrency Borrowing denominated in any currency, on any day:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining any applicable Adjusted Eurocurrency Rate for such currency for such Interest Period for such day; or
(b) the Administrative Agent is advised by the Required Lenders that any applicable Adjusted Eurocurrency Rate for such currency for such Interest Period for such day will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing, for such Interest Period or such day;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i)Β any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such currency shall be ineffective and such Borrowing shall be converted to or continued as on the last day of the Interest Period applicable thereto, an ABR Borrowing and (ii)Β if any Borrowing Request requests a Eurocurrency Borrowing in such currency, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by,
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any Lender (except any such reserve requirement reflected in the Adjusted Eurocurrency Rate) or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lenderβs or Issuing Bankβs capital or on the capital of such Lenderβs or Issuing Bankβs holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lenderβs or such Issuing Bankβs holding company could have achieved but for such Change in Law (taking into consideration such Lenderβs or such Issuing Bankβs policies and the policies of such Lenderβs or such Issuing Bankβs holding company with respect to capital adequacy), then from time to time the Borrower shall pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lenderβs or such Issuing Bankβs holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a)Β or (b)Β of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as applicable, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Promptly after any Lender or any Issuing Bank has determined that it will make a request for increased compensation pursuant to this SectionΒ 2.15, such Lender or Issuing Bank shall notify the Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lenderβs or Issuing Bankβs right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenderβs or Issuing Bankβs intention to claim compensation therefor; provided, further, that if the Change in Law giving rise to such increased
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costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a)Β the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b)Β the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c)Β the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto or (d)Β the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to SectionΒ 2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender to be the excess, if any, of (i)Β the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted Eurocurrency Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue a Eurocurrency Loan, for the period that would have been the Interest Period for such Loan), over (ii)Β the amount of interest that would accrue on such principal amount for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and period from other banks in the Eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Documents shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided, that if a Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i)Β the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, any Lender or any Issuing Bank, as applicable, receives an amount equal to the sum it would have received had no such deductions been made, (ii)Β such Loan Party shall make such deductions and (iii)Β such Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as applicable, on or with respect to any payment by or on account of any obligation of such Loan Party hereunder or under any other Loan Documents (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any reasonable expenses arising therefrom or with respect thereto,
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whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Loan Party by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction of withholding Tax or backup withholding Tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), to the extent such Lender is legally entitled to do so, at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as may reasonably be requested by such Borrower to permit such payments to be made without such withholding tax or at a reduced rate; provided, that no Lender shall have any obligation under this paragraph (e)Β with respect to any withholding Tax imposed by any jurisdiction other than the United States if in the reasonable judgment of such Lender such compliance would subject such Lender to any material unreimbursed cost or expense or would otherwise be disadvantageous to such Lender in any material respect.
(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this SectionΒ 2.17, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this SectionΒ 2.17 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by the Administrative Agent or Lender in good faith and in its sole discretion, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This Section shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Loan Parties or any other person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of L/C Disbursements, or of amounts payable under SectionΒ 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., Local Time,
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on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in the currency of such Loan; all other payments hereunder and under each other Loan Document shall be made in U.S. Dollars, except as otherwise expressly provided herein. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, unreimbursed L/C Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied (i)Β first, towards payment of interest and fees then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (ii)Β second, towards payment of principal of Swingline Loans and unreimbursed L/C Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal, and unreimbursed L/C Disbursements then due to such parties, and (iii)Β third, towards payment of principal then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Facility Loans or participations in L/C Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans and accrued interest thereon under any Tranche than the proportion received by any other Lender under such Tranche, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans of other Lenders under such Tranche to the extent necessary so that the benefit of all such payments shall be shared by the Lenders under such Tranche ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Facility Loans and participations in L/C Disbursements and Swingline Loans under such Tranche; provided, that (i)Β if any such participations are purchased
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and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii)Β the provisions of this paragraph (c)Β shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph (c)Β shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of (A)Β (1)Β in the case of Loans, the Federal Funds Effective Rate, (2)Β in the case of any other amounts denominated in U.S. Dollars, the Federal Funds Effective Rate, and (3)Β in the case of any other amount denominated in a currency other than U.S. Dollars, the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount, and (B)Β a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to SectionΒ 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenderβs obligations under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under SectionΒ 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to SectionΒ 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i)Β would eliminate or reduce amounts payable pursuant to SectionΒ 2.15 or 2.17, as applicable, in the future and (ii)Β would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
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(b) If any Lender requests compensation under SectionΒ 2.15, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to SectionΒ 2.17, or is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require any such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in SectionΒ 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, that (i)Β the Borrower shall have received the prior written consent of the Administrative Agent (and, if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender and the Issuing Bank), which consent shall not unreasonably be withheld, (ii)Β such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in L/C Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii)Β in the case of any such assignment resulting from a claim for compensation under SectionΒ 2.15 or payments required to be made pursuant to SectionΒ 2.17, such assignment will result in a reduction in such compensation or payments. Nothing in this SectionΒ 2.19 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.
(c) If any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that pursuant to the terms of SectionΒ 9.08 requires the consent of all the Lenders affected and with respect to which the Required Lenders shall have granted their consent (any such Lender referred to above, a βNon-Consenting Lenderβ), then so long as no Event of Default then exists, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to (i)Β replace any such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (and, if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender and the Issuing Bank) or (ii)Β require such Non-Consenting Lender to assign all of its Term Loans hereunder or all of its Revolving Facility Commitments or Revolving Facility Loans hereunder to one or more assignees reasonably acceptable to the Administrative Agent (and, if in respect of any Revolving Facility Commitment or Revolving Facility Loan, the Swingline Lender and the Issuing Bank); provided, that (i)Β all Obligations of the Borrower owing to such Non-Consenting Lender being replaced, including obligations arising under SectionΒ 2.16 as a result of such replacement, and/or all Obligations of the Borrower owing to such Non-Consenting Lender in respect of any Loans required to be assigned shall be paid in full to such Non-Consenting Lender concurrently with such assignment, and (ii)Β the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with any such assignment the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with SectionΒ 9.04.
(d) Notwithstanding anything to the contrary, any assignment of any Lenderβs Term Loans pursuant to SectionΒ 2.19(c) effected on or before the date that is one year after the Closing Date relating to any proposed amendment, waiver or consent relating to a Repricing Transaction shall be accompanied by a premium equal to 1.00% of the aggregate principal
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amount of the Term Loans assigned, with such premium to be paid by the Borrower in cash to the assigning Lender.
SECTION 2.20. Incremental Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their own discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i)Β the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii)Β the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the βIncreased Amount Dateβ) and (iii)Β (a)Β whether such Incremental Term Loan Commitments are to be Tranche B Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Tranche B Term Loans (βOther Term Loansβ) and/or (b)Β whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (βOther Revolving Facility Loansβ).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided, that (i)Β the Other Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Tranche B Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall have the same terms as the Tranche B Term Loans, as applicable, (ii)Β the final maturity date of (a)Β any Other Term Loans shall be no earlier than the Term Loan Maturity Date and/or (b)Β any Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date, (iii)Β the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (iv)Β the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Maturity Date; provided, further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or
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Other Revolving Facility Loan) may exceed the Applicable Margin for the Term Loans and/or the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), respectively, by no more than Β 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (βOIDβ), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than Β 1/2 of 1% higher than the Applicable Margin for the Term Loans or the Revolving Fa cility Loans, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in SectionΒ 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowerβs consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this SectionΒ 2.20 unless (i)Β on the date of such effectiveness, the conditions set forth in paragraphs (b)Β and (c)Β of SectionΒ 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii)Β the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under SectionΒ 4.02 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii)Β the Borrower would be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans and/or Incremental Revolving Facility Loans (other than Other Term Loans or Other
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Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Facility Loans under the same Tranche on a pro rata basis, and the Borrower agrees that SectionΒ 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
SECTION 2.21. Illegality. If any Lender reasonably determines that any change in law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurocurrency Loans, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings 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), either convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants that:
SECTION 3.01. Organization; Powers. Except as set forth on Schedule 3.01, each of Holdings, the Borrower and each of the Subsidiaries (a)Β is a limited liability company, unlimited liability company, corporation or partnership duly organized, validly existing and in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States) under the laws of the jurisdiction of its organization, (b)Β has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (c)Β is qualified to do business in each jurisdiction where such qualification is required, except where the failure so to qualify could not reasonably be expected to have a Material Adverse Effect, and (d)Β has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow and otherwise obtain credit hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by Holdings, the Borrower and each of the Subsidiary Loan Parties of each of the Loan Documents to which it is a party, and the borrowings hereunder and the transactions forming a part of the Transactions (a)Β have been duly authorized by all corporate, stockholder or limited liability company or partnership action required to be obtained by Holdings, the Borrower and such Subsidiary Loan Parties and (b)Β will not (i)Β violate (A)Β any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents (including any limited liability company or operating agreements) or by-laws of Holdings, the Borrower or any such Subsidiary Loan Parties, (B)Β any applicable order of any court or any rule, regulation or order of any Governmental Authority or (C)Β any provision of any indenture, certificate of designation for preferred stock, agreement or other instrument to which Holdings, the
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Borrower or any such Subsidiary Loan Parties is a party or by which any of them or any of their property is or may be bound, (ii)Β be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, certificate of designation for preferred stock, agreement or other instrument, where any such conflict, violation, breach or default referred to in clause (i)Β or (ii)Β of this SectionΒ 3.02, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (iii)Β result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by Holdings, the Borrower or any such Subsidiary Loan Parties, other than the Liens created by the Loan Documents and Liens permitted by SectionΒ 6.02.
SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to (i)Β the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditorsβ rights generally, (ii)Β general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii)Β implied covenants of good faith and fair dealing and (iv)Β except to the extent set forth in the applicable Foreign Pledge Agreements, any foreign laws, rules and regulations as they relate to pledges of Equity Interests in Foreign Subsidiaries that are not Loan Parties.
SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions, except for (a)Β the filing of Uniform Commercial Code financing statements and equivalent filings in foreign jurisdictions, (b)Β filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c)Β recordation of the Mortgages, (d)Β such as have been made or obtained and are in full force and effect, (e)Β such other actions, consents, approvals, registrations or filings with respect to which the failure to be obtained or made could not reasonably be expected to have a Material Adverse Effect and (f)Β filings or other actions listed on Schedule 3.04.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore furnished to the Lenders:
(i) the unaudited pro forma condensed combined balance sheet as of JuneΒ 30, 2005 (the βPro Forma Closing Balance Sheetβ) and the related unaudited pro forma condensed combined statement of operations for the six months ended JuneΒ 30, 2004, the six months ended JuneΒ 30, 2005 and the year ended DecemberΒ 31, 2004 (the βPro Forma Closing Income Statementsβ; and, together with the Pro Forma Closing Balance Sheet, the βPro Forma Closing Financial Statementsβ) of the Borrower, together with its
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combined subsidiaries (in each case including the notes thereto), copies of which have heretofore been furnished to each Lender (via inclusion in the Information Memorandum), except as set forth on Schedule 3.05(a), have been prepared giving effect to the Transactions as set forth in the Information Memorandum (as if such events had occurred, in the case of the Pro Forma Closing Balance Sheet, on such date and, in the case of the Pro Forma Closing Income Statements, JanuaryΒ 1, 2004). The Pro Forma Closing Financial Statements have been prepared in good faith based on assumptions believed by Holdings and the Borrower to have been reasonable as of the date of delivery thereof (it being understood that such assumptions are based on good faith estimates of certain items and that the actual amount of such items is subject to change). The Pro Forma Closing Balance Sheet presents fairly in all material respects on a pro forma basis the estimated financial position of the Borrower and its consolidated subsidiaries as at JuneΒ 30, 2005, assuming that the events specified in the second preceding sentence had actually occurred at such date, and the Pro Forma Closing Income Statement presents fairly in all material respects on a pro forma basis the results of operations of Borrower and its consolidated subsidiaries for such twelve-month period, assuming that the events specified in the second preceding sentence had actually occurred on the first day of such twelve-month period.
(ii) (A) The audited combined balance sheets of the Companies as at DecemberΒ 31, 2003 and DecemberΒ 31, 2004 and the related combined statements of operations, changes in combined equity and cash flows of the Companies for the fiscal years ended DecemberΒ 31, 2002,Β DecemberΒ 31, 2003 and DecemberΒ 31, 2004 and (B)Β the unaudited condensed combined balance sheets as of JuneΒ 30, 2005 and DecemberΒ 31, 2004 and related combined condensed statements of operations, changes in combined equity and cash flows of the Companies for the six months ended JuneΒ 30, 2004 and JuneΒ 30, 2005, in each such case, copies of which have heretofore been furnished to each Lender, except as disclosed in the Offering Circular, have been prepared in accordance with GAAP applied consistently throughout the periods involved and Regulation S-X under the Securities Act of 1933, as amended, and present fairly the financial condition and results of operations of the Companies, as of and on such dates set forth on such financial statements.
(b) Except as set forth in Schedule 3.05(b), none of the Borrower or the Subsidiaries has any material Guarantees, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the financial statements referred to in the preceding clauses (a)(i) and (ii). During the period from DecemberΒ 31, 2004, to and including the Closing Date there has been no disposition by Holdings, the Borrower or any of its subsidiaries of any material part of its business or property other than in connection with the Transactions that has not been disclosed in the Information Memorandum.
SECTION 3.06. No Material Adverse Change or Material Adverse Effect. Since DecemberΒ 31, 2004, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.
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SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of the Borrower and the Subsidiaries has good and valid record fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its properties and assets (including all Mortgaged Properties), except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title, interests or easements could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets held in fee simple are free and clear of Liens, other than Liens expressly permitted by SectionΒ 6.02 or arising by operation of law.
(b) Each of the Borrower and the Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be considered to have Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect. Except as set forth on ScheduleΒ 3.07(b), the Borrower and each of the Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) Each of the Borrower and the Subsidiaries owns or possesses, or could obtain ownership or possession of or rights under, on terms not materially adverse to it, all patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary for the present conduct of its business, without any conflict (of which the Borrower has been notified in writing) with the rights of others, and free from any burdensome restrictions on the present conduct of the their businesses, except where such conflicts and restrictions could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(d) As of the Closing Date, none of the Borrower or the Subsidiaries has received any notice of any pending or contemplated condemnation proceeding affecting any of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation that remains unresolved as of the Closing Date.
(e) None of the Borrower or the Subsidiaries is obligated on the Closing Date under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as permitted under SectionΒ 6.02 or 6.05.
SECTION 3.08. Subsidiaries. (a) Schedule 3.08(a) sets forth as of the Closing Date the name and jurisdiction of incorporation, formation or organization of each direct and indirect subsidiary of Holdings. Except as set forth on Schedule 3.08(a), as of the Closing Date, all of the issued and outstanding Equity Interests of each subsidiary of Holdings is owned directly by Holdings or by another subsidiary.
(b) As of the Closing Date, there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to
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employees or directors and directorsβ qualifying shares) of any nature relating to any Equity Interests of Holdings, the Borrower or any of the Subsidiaries, except rights of employees to purchase Equity Interests of Holdings in connection with the Transactions or as set forth on Schedule 3.08(b).
SECTION 3.09. Litigation; Compliance with Laws. (a) As of the Closing Date, there are no actions, suits or proceedings at law or in equity or, to the knowledge of the Borrower, investigations by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against or affecting Holdings or the Borrower or any of its subsidiaries or any business, property or rights of any such person (i)Β that involve any Loan Document, any Transaction Document or the Transactions or (ii)Β could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially adversely affect the Transactions. As of the date of any Borrowing after the Closing Date, there are no actions, suits or proceedings at law or in equity or, to the knowledge of the Borrower, investigations by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Borrower, threatened in writing against or affecting Holdings or the Borrower or any of its subsidiaries or any business, property or rights of any such person which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) None of Holdings, the Borrower, the Subsidiaries or their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any zoning, building, Environmental Law, ordinance, code or approval or any building permit) or any restriction of record or agreement affecting any Mortgaged Property, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) None of Holdings, the Borrower or the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i)Β to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii)Β for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act. None of Holdings, the Borrower or the Subsidiaries is (a)Β an βinvestment companyβ as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, or (b)Β a βholding companyβ as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
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SECTION 3.12. Use of Proceeds. The Borrower will use the proceeds of the Term Loans borrowed on the Closing Date, together with the proceeds of the Revolving Facility Loans or Swingline Loans borrowed on the Closing Date, only to finance a portion of the Transactions and for the payment of fees and expenses payable in connection with the Transactions; provided, Revolving Facility Loans or Swingline Loans may only be borrowed on the Closing Date after the Borrower shall have applied all cash on hand other than restricted cash, as reflected on the Pro Forma Closing Balance Sheet and the aggregate amount of such Loans, if any, shall not exceed $50,000,000. The Borrower will use the proceeds of the Revolving Facility Loans (except as described above) and the Swingline Loans for working capital needs and other general corporate purposes (including, without limitation, for Permitted Acquisitions and to make Permitted Investments). The Borrower will use the proceeds of the Letters of Credit solely to support payment obligations incurred by the Borrower and its Subsidiaries.
SECTION 3.13. Tax Returns. Except as set forth on Schedule 3.13:
(a) Each of Holdings, the Borrower and the Subsidiaries (i)Β has timely filed or caused to be timely filed all federal, state, local and non-U.S. Tax returns required to have been filed by it that are material to such companies taken as a whole and each such Tax return is true and correct in all material respects, including, without limitation, relating to all periods or portions thereof ending on or prior to the Closing Date and (ii)Β has timely paid or caused to be timely paid all Taxes shown thereon to be due and payable by it and all other material Taxes or assessments, except Taxes or assessments, including, without limitation, relating to all periods or portions thereof ending on or prior to the Closing Date that are being contested in good faith by appropriate proceedings in accordance with SectionΒ 5.03 and for which Holdings, the Borrower or any of the Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with GAAP; and
(b) Other than as could not be, individually or in the aggregate, reasonably expected to have a Material Adverse Effect: as of the Closing Date, with respect to each of Holdings, the Borrower and the Subsidiaries, (i)Β there are no claims being asserted in writing with respect to any Taxes, (ii)Β no presently effective waivers or extensions of statutes of limitation with respect to Taxes have been given or requested and (iii)Β no Tax returns are being examined by, and no written notification of intention to examine has been received from, the Internal Revenue Service or any other Taxing authority.
SECTION 3.14. No Material Misstatements. (a) All written information (other than the Projections, estimates and information of a general economic nature) (the βInformationβ) concerning Holdings, the Borrower, the Subsidiaries, the Transactions and any other transactions contemplated hereby included in the Information Memorandum or otherwise prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby, when taken as a whole, were true and correct in all material respects, as of the date such Information was furnished to the Lenders and as of the Closing Date and did not contain any untrue statement of a material fact as of any such date or omit to state a
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material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
(b) Any Projections and estimates and information of a general economic nature prepared by or on behalf of the Borrower or any of its representatives and that have been made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby (i)Β have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date thereof, as of the date such Projections and estimates were furnished to the Initial Lenders and as of the Closing Date, and (ii)Β as of the Closing Date, have not been modified in any material respect by the Borrower.
SECTION 3.15. Employee Benefit Plans. (a) Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or as set forth on Schedule 3.15: (i)Β each of Holdings, the Borrower, the Subsidiaries and the ERISA Affiliates is in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder and any similar applicable law; no Reportable Event has occurred during the past five years as to which Holdings, the Borrower, a Subsidiary or any ERISA Affiliate was required to file a report with the PBGC, other than reports that have been filed; (ii)Β no Reportable Event has occurred during the past five years as to which Holdings, the Borrower, a Subsidiary or any ERISA Affiliate was required to file a report with the PBGC, other than reports that have been filed; (iii)Β the present value of all benefit liabilities under each Plan of Holdings, the Borrower, the Subsidiaries and the ERISA Affiliates (based on those assumptions used to fund such Plan), as of the last annual valuation date applicable thereto for which a valuation is available, does not exceed the value of the assets of such Plan, and the present value of all benefit liabilities of all underfunded Plans (based on those assumptions used to fund each such Plan), as of the last annual valuation dates applicable thereto for which valuations are available, does not exceed the value of the assets of all such underfunded Plans; (iv)Β no ERISA Event has occurred or is reasonably expected to occur; and (v)Β none of Holdings, the Borrower, the Subsidiaries or the ERISA Affiliates has received any written notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated.
(b) Each of Holdings, the Borrower and the Subsidiaries is in compliance (i)Β with all applicable provisions of law and all applicable regulations and published interpretations thereunder with respect to any employee pension benefit plan or other employee benefit plan governed by the laws of a jurisdiction other than the United States and (ii)Β with the terms of any such plan, except, in each case, for such noncompliance that could not reasonably be expected to have a Material Adverse Effect.
(c) None of Holdings, the Borrower or any of the Subsidiaries is or has at any time been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme that is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993), and none of Holdings, the Borrower or any of the Subsidiaries is or has at any time been βconnectedβ with or an βassociateβ of (as those terms are used in sections 39 and 43 of the Pensions Act 2004) such an employer, other than any such scheme, connection or association that could not reasonably be expected to have a Material Adverse Effect.
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SECTION 3.16. Environmental Matters. Except as disclosed on Schedule 3.16 and except as to matters that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (i)Β no written notice, request for information, order, complaint or penalty has been received by the Borrower or any of the Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or threatened, that allege a violation of or liability under any applicable Environmental Laws, in each case relating to the Borrower or any of the Subsidiaries, (ii)Β each of the Borrower and the Subsidiaries has obtained and maintained all permits, licenses and other approvals necessary for its operations to comply with all applicable Environmental Laws and is, and during the term of all applicable statutes of limitation, has been, in compliance with the terms of such permits, licenses and other approvals and with all other applicable Environmental Laws, (iii)Β there has been no material written environmental assessment or audit conducted since JanuaryΒ 1, 2000, by the Borrower or any of the Subsidiaries of any property currently owned or leased by the Borrower or any of the Subsidiaries that has not been made available to the Administrative Agent prior to the date hereof, (iv)Β no Hazardous Material is located at, on or under any property currently or, to the knowledge of the Borrower, formerly owned, operated or leased by the Borrower or any of its Subsidiaries that would reasonably be expected to give rise to any cost, liability or obligation of the Borrower or any of the Subsidiaries under any applicable Environmental Laws, and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by the Borrower or any of its Subsidiaries and transported to or Released at any location in a manner that would reasonably be expected to give rise to any cost, liability or obligation of the Borrower or any of the Subsidiaries under any Environmental Laws, and (v)Β there are no written agreements in which the Borrower or any of the Subsidiaries has expressly assumed or undertaken responsibility, and such assumption or undertaking of responsibility has not expired or otherwise terminated, for any liability or obligation of any other person arising under or relating to applicable Environmental Laws, which in any such case has not been made available to the Administrative Agent prior to the date hereof.
SECTION 3.17. Security Documents. (a) The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof to the extent intended to be created thereby. In the case of the Pledged Collateral described in the Guarantee and Collateral Agreement, when certificates or promissory notes, as applicable, representing such Pledged Collateral are delivered to the Administrative Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement (other than the Intellectual Property (as defined in the Guarantee and Collateral Agreement)), when financing statements and other filings specified on ScheduleΒ 6 of the Perfection Certificate in appropriate form are filed in the offices specified on Schedule 6 of the Perfection Certificate, the Administrative Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in (to the extent required thereby), all right, title and interest of the Loan Parties in such Collateral and, subject to SectionΒ 9-315 of the New York Uniform Commercial Code, the proceeds thereof, as security for the Obligations to the extent perfection can be obtained by filing Uniform Commercial Code financing statements, in each case prior and superior in right to any other person (except, in the case of Collateral other than Pledged Collateral, Liens expressly permitted by SectionΒ 6.02 and Liens having priority by operation of law).
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(b) When the Intellectual Property Security Agreement is properly filed in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security interest cannot be perfected by such filings, upon the proper filing of the financing statements referred to in paragraph (a)Β above, the Administrative Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties thereunder in the domestic Intellectual Property (to the extent intended to be created thereby), in each case prior and superior in right to any other person (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the grantors thereunder after the Closing Date) except Liens permitted by SectionΒ 6.02 and Liens having priority by operation of Law.
(c) Each Foreign Pledge Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and the proceeds thereof to the fullest extent permissible under applicable law. In the case of the Pledged Collateral described in a Foreign Pledge Agreement, when certificates representing such Pledged Collateral (if any) are delivered to the Administrative Agent, the Administrative Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, (subject to SectionΒ 6.02) prior and superior in right to any other person except Liens having priority by operation of the law governing such Foreign Pledge Agreement.
(d) The Mortgages executed and delivered after the Closing Date pursuant to SectionΒ 5.11 shall be, effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) a legal, valid and enforceable Lien on all of the Loan Partiesβ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or recorded in the proper real estate filing or recording offices, the Administrative Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Mortgaged Property and, to the extent applicable, subject to SectionΒ 9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior in right to any other person, other than with respect to the rights of a person pursuant to Liens expressly permitted by SectionΒ 6.02 and Liens having priority by operation of law.
(e) After taking the actions specified for perfection therein, each Security Document (excluding the Foreign Pledge Agreements, the Guarantee and Collateral Agreement and the Mortgages, each of which is covered by another paragraph of this SectionΒ 3.17), when executed and delivered, will be effective under applicable law to create in favor of the Administrative Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest in the Collateral subject thereto (to the extent intended to be created thereby), and will constitute a fully perfected Lien on and security interest in all right, title and interest of the Loan Parties in the Collateral subject thereto (to extent required thereby), prior and superior to the rights of any other person, except for rights secured by Liens expressly permitted by SectionΒ 6.02 and Liens having priority by operation of law.
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(f) Notwithstanding anything herein (including this SectionΒ 3.17) or in any other Loan Document to the contrary, other than to the extent set forth in the applicable Foreign Pledge Agreements, none of the Borrower or any other Loan Party makes any representation or warranty as to the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign law.
SECTION 3.18. Location of Real Property. The Perfection Certificate lists completely and correctly as of the Closing Date all material real property owned by Holdings, the Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the Closing Date, Holdings, the Borrower and the Subsidiary Loan Parties own in fee all the real property set forth as being owned by them on such Perfection Certificate.
SECTION 3.19. Solvency. (a) Immediately after giving effect to the Transactions on the Closing Date, (i)Β the sum of the assets of the Borrower (individually) and Holdings, the Borrower and the Subsidiaries on a consolidated basis, both at a fair valuation and at present fair salable value, exceeds the liabilities, including contingent, subordinated, unmatured, unliquidated, and disputed liabilities of the Borrower (individually) and Holdings, the Borrower and the Subsidiaries on a consolidated basis, respectively; (ii)Β the Borrower (individually) and Holdings, the Borrower and the Subsidiaries on a consolidated basis, respectively, have sufficient capital with which to conduct their business; and (iii)Β the Borrower (individually) and Holdings, the Borrower and the Subsidiaries on a consolidated basis have not incurred debts beyond their ability to pay such debts as they mature. For purposes of this definition, βdebtβ means any liability on a claim, and βclaimβ means (i)Β a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii)Β a right to an equitable remedy for breach of performance to the extent such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. With respect to any such contingent liabilities, such liabilities shall be computed at the amount which, in light of all the facts and circumstances existing at the time, represents the amount which can reasonably be expected to become an actual or matured liability.
(b) Neither of Holdings or the Borrower intends to, or believes that it or any Subsidiary Loan Party will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such Subsidiary Loan Party and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such Subsidiary Loan Party.
SECTION 3.20. Labor Matters. Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a)Β there are no strikes or other labor disputes pending or threatened against Holdings, the Borrower or any of the Subsidiaries; (b)Β the hours worked and payments made to employees of Holdings, the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable law dealing with such matters; (c)Β all payments due from Holdings, the Borrower or any of the Subsidiaries or for which any claim may be made against Holdings, the Borrower or any of the Subsidiaries, on account of wages and employee health and welfare insurance and
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other benefits have been paid or accrued as a liability on the books of Holdings, the Borrower or such Subsidiary to the extent required by GAAP; and (d)Β Holdings, the Borrower and the Subsidiaries are in compliance with all applicable laws, agreements, policies, plans and programs relating to employment and employment practices. Except as set forth on Schedule 3.20, consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which Holdings, the Borrower or any of the Subsidiaries (or any predecessor) is a party or by which Holdings, the Borrower or any of the Subsidiaries (or any predecessor) is bound.
SECTION 3.21. Insurance. Schedule 3.21 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of Holdings, the Borrower or the Subsidiaries as of the Closing Date. As of such date, such insurance is in full force and effect. Such insurance complies with the requirements of this Agreement and the other Loan Documents and the Borrower believes that the insurance maintained by or on behalf of Holdings, the Borrower and the Subsidiaries is adequate.
SECTION 3.22. Representations and Warranties in Purchase Agreement. All representations and warranties of Holdings and the Borrower set forth in the Purchase Agreement were true and correct in all material respects as of the time such representations and warranties were made and shall be true and correct in all material respects as of the Closing Date as if such representations and warranties were made on and as of such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
SECTION 3.23. Senior Debt. The Obligations constitute βSenior Debtβ (or the equivalent thereof) and βDesignated Senior Debtβ (or the equivalent thereof) under the Bridge Loan Agreement, the Senior Subordinated Notes Indenture and under the documentation governing any Permitted Subordinated Indebtedness, including any Permitted Refinancing Indebtedness in respect of the Bridge Financing, the Senior Subordinated Notes or such Permitted Subordinated Indebtedness.
SECTION 3.24. No Violation. (a) None of Holdings, the Borrower or any Subsidiary is (a)Β a party to any agreement or instrument, or subject to any corporate restriction, that, individually or in the aggregate, has resulted, or could reasonably be expected to result, in a Material Adverse Effect or (b)Β is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which any of Holdings, the Borrower or any Subsidiary is a party that, individually or in the aggregate, has resulted, or could reasonably be expected to result, in a Material Adverse Effect.
SECTION 3.25. Holdings Indebtedness. As of the Closing Date, prior to giving effect to the Transactions, Holdings does not have any Indebtedness.
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ARTICLE IV
Conditions of Lending
The obligations of (a)Β the Lenders (including the Swingline Lender) to make Loans and (b)Β any Issuing Bank to issue, amend, extend or renew Letters of Credit or increase the stated amounts of Letters of Credit hereunder (each, a βCredit Eventβ) are subject to the satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing and on the date of each issuance, amendment, extension or renewal of a Letter of Credit:
(a) The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by SectionΒ 2.03 or, in the case of the issuance, amendment, extension or renewal of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance, amendment, extension or renewal of such Letter of Credit as required by SectionΒ 2.05(b).
(b) The representations and warranties set forth in the Loan Documents (other than, on the Closing Date, the representation and warranty set forth in SectionΒ 3.06) that are qualified by materiality shall be true and correct, and the representations and warranties that are not so qualified shall be true and correct in all material respects, in each case on and as of the date of such Borrowing or issuance, amendment, extension or renewal of a Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any (i)Β increase in the stated amount of such Letter of Credit or (ii)Β extension of the expiration of such Letter of Credit), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified by materiality shall be true and correct, and the representations and warranties that are not so qualified shall be true and correct in all material respects, as of such earlier date).
(c) At the time of and immediately after such Borrowing or issuance, amendment, extension or renewal of a Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any (i)Β increase in the stated amount of such Letter of Credit or (ii)Β extension of the expiration of such Letter of Credit), as applicable, no Event of Default or Default shall have occurred and be continuing or would result therefrom.
Each Borrowing and each issuance, amendment, extension or renewal of a Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any (i)Β increase in the stated amount of such Letter of Credit or (ii)Β extension of the expiration of such Letter of Credit) shall be deemed to constitute a representation and warranty by the Borrower on the date of such Borrowing, issuance, amendment, extension or renewal as applicable, as to the matters specified in paragraphs (b)Β and (c)Β of this SectionΒ 4.01.
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SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i)Β a counterpart of this Agreement signed on behalf of such party or (ii)Β written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a favorable written opinion of (i)Β OβMelvenyΒ & Xxxxx LLP, special counsel for Holdings, the Borrower and the other Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, and (ii)Β local U.S. and foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 4.02(b), in each case (a)Β dated the Closing Date, (b)Β addressed to each Issuing Bank on the Closing Date, the Administrative Agent and the Lenders and (c)Β in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings, the Borrower and the other Loan Parties hereby instructs its counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the borrowings and extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Administrative Agent, to the Lenders and to each Issuing Bank on the Closing Date.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii)Β and (iv)Β below:
(i) a copy of the certificate or articles of incorporation or formation, limited liability agreement, partnership agreement or other constituent or governing documents, including all amendments thereto, of each Loan Party, (a)Β if applicable in such jurisdiction, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official), and (b)Β otherwise, (i)Β certified by the Secretary or Assistant Secretary of each such Loan Party or other person duly authorized by the constituent documents of such Loan Party or (ii)Β otherwise in form and substance reasonably satisfactory to the Administrative Agent;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party or other person duly authorized by the constituent documents of such Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws (or limited liability company agreement, articles of association, partnership agreement or other equivalent constituent and governing
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documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B)Β below;
(B) that attached thereto is a true and complete copy of resolutions (or equivalent authorizing actions) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date;
(C) that the certificate or articles of incorporation, by-laws, limited liability company agreement, articles of association, partnership agreement or other equivalent constituent and governing documents of such Loan Party have not been amended since the date of the last amendment thereto disclosed pursuant to clause (i)Β above;
(D) as to the incumbency and specimen signature of each officer or other duly authorized person executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party;
(iii) a certification of another officer or other duly authorized person as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer or other person duly authorized by such Loan Party executing the certificate pursuant to clause (ii)Β above; and
(iv) such other documents as the Administrative Agent on the Closing Date may reasonably request (including tax identification numbers and addresses).
(e) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such filings (or similar documents) are permitted by SectionΒ 6.02 or have been released; provided, that, to the extent that it is not practicable (i)Β for the Foreign Subsidiaries set forth on ScheduleΒ 4.02(e) to satisfy any of paragraphs (a)Β and/or (b)Β of the Collateral and Guarantee Requirement, to the extent that
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such paragraphs are set forth with respect to such Foreign Subsidiary on ScheduleΒ 4.02(e), (ii)Β to perfect any security interest in the Equity Interests or assets of a Foreign Subsidiary set forth on Schedule 4.02(e) as provided in the Collateral and Guarantee Requirement or (iii)Β to deliver an opinion of counsel relating to clauseΒ (i) or (ii)Β above, in each case, prior to the Closing Date, such requirements may be satisfied after the Closing Date in accordance with SectionΒ 5.11(h).
(f) The Acquisition contemplated by the Purchase Agreement to be consummated on the Closing Date shall be consummated prior to or simultaneously with the closing under this Agreement (but in any event on the Closing Date) in accordance with applicable law and the terms and conditions of the Purchase Agreement.
(g) The Equity Financing shall have been consummated prior to or simultaneously with the closing under this Agreement (but in any event on the Closing Date) in accordance with applicable law and the terms and conditions of the Equity Financing Documents.
(h) The Borrower shall have received not less than (i)Β $266,387,400 in gross cash proceeds from the issuance of the Senior Notes and (ii)Β $383,612,600 in gross cash proceeds from either (A)Β the Bridge Financing or (B)Β the issuance of Senior Subordinated Notes (as contemplated by clause (c)Β of the definition of βSenior Subordinated Notesβ).
(i) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, Holdings, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (i)Β Indebtedness permitted pursuant to SectionΒ 6.01, (ii)Β in the case of Holdings, Guarantees of Indebtedness under the Loan Documents and Guarantees of the Bridge Financing, and (iii)Β the Seller Preferred Equity of Holdings.
(j) The Arrangers shall have received (a)Β a solvency opinion in form and substance and from Xxxxxx, XxxxxxΒ & Co., Inc. or another independent investment bank or valuation firm reasonably satisfactory to the Joint Lead Arrangers to the effect that, or (b)Β a customary certificate from a Responsible Officer of the Borrower certifying that Holdings and its subsidiaries, on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, are solvent.
(k) All requisite governmental authorities and third parties shall have approved or consented to the Transactions contemplated by the Purchase Agreement to the extent required by the Purchase Agreement and the Loan Documents to be consummated on the Closing Date to the extent required and material, all applicable appeal periods shall have expired and there shall be no litigation, governmental, administrative or judicial action, actual or threatened, that would reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(l) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and
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payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ShearmanΒ & Sterling LLP and U.S. and local and foreign counsel) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(m) The Administrative Agent shall have received insurance certificates satisfying the requirements of SectionΒ 5.02 of this Agreement.
ARTICLE V
Affirmative Covenants
Each of Holdings (solely with respect to SectionΒ 5.01(a) and SectionΒ 5.06) and the Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect (other than in respect of contingent indemnification obligations) and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, each of Holdings (solely with respect to SectionΒ 5.01(a) and SectionΒ 5.06) and the Borrower will, and will cause each of the Material Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, (i)Β except as otherwise expressly permitted under SectionΒ 6.05, and (ii)Β except for the liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries to the extent they exceed estimated liabilities are acquired by the Borrower or a Wholly Owned Subsidiary of the Borrower in such liquidation or dissolution; provided, that Subsidiaries that are Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Subsidiary Loan Parties unless such liquidation is otherwise permitted by SectionΒ 6.05(b).
(b) Do or cause to be done all things necessary to (i)Β obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary to the normal conduct of its business, unless the failure to do so would not result, in each case, in a Material Adverse Effect, (ii)Β comply in all material respects with all material applicable laws, rules, regulations (including any zoning, building, ordinance, code or approval or any building permits or any restrictions of record or agreements affecting the Mortgaged Properties) and judgments, writs, injunctions, decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted, and (iii)Β at all times maintain and preserve all material property necessary to the normal conduct of its business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times (in each case except as expressly permitted by this Agreement).
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SECTION 5.02. Insurance. (a) Keep its insurable properties insured at all times by financially sound and reputable insurers in such amounts as shall be customary for similar businesses and maintain such other reasonable insurance (including, to the extent consistent with past practices, self-insurance), of such types, to such extent and against such risks, as is customary with companies in the same or similar businesses, taking into account the general degree to which such companies are leveraged, and maintain such other insurance as may be required by law or any other Loan Document.
(b) Cause all such property and property casualty insurance policies to be endorsed or otherwise amended to include appropriate loss payable endorsements, including, with respect to Mortgaged Properties, a βstandardβ or βNew Yorkβ lenderβs loss payable endorsement, in each case, in form and substance reasonably satisfactory to the Administrative Agent, which endorsement shall provide that, from and after the Closing Date, if the insurance carrier shall have received written notice from the Administrative Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to the Borrower or the other Loan Parties under such policies directly to the Administrative Agent; cause all such policies to provide that none of the Borrower, the Administrative Agent or any other party shall be a coinsurer thereunder and to contain a βReplacement Cost Endorsement,β without any deduction for depreciation, and such other provisions as the Administrative Agent may reasonably (in light of a Default or a material development in respect of the insured property) require from time to time to protect their interests; deliver original or certified copies of all such policies or a certificate of an insurance broker to the Administrative Agent; cause each such policy to provide that it shall not be canceled, lapsed (including for nonrenewal) or terminated upon less than 30 daysβ prior written notice (or 10 daysβ prior written notice in the case of any failure to pay any premium due thereunder) thereof by the insurer to the Administrative Agent; deliver to the Administrative Agent, prior to the cancellation, lapse (including for nonrenewal) or termination of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent), or insurance certificate with respect thereto, together with evidence satisfactory to the Administrative Agent of payment of the premium therefor.
(c) Notify the Administrative Agent promptly whenever any separate insurance concurrent in form or contributing in the event of loss with that required to be maintained under this SectionΒ 5.02 is taken out by Holdings, the Borrower or any of the Subsidiaries; and promptly deliver to the Administrative Agent a duplicate original copy of such policy or policies, or an insurance certificate with respect thereto.
(d) In connection with the covenants set forth in this SectionΒ 5.02, it is understood and agreed that:
(i) none of the Administrative Agent, the Lenders, the Issuing Bank and their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this SectionΒ 5.02, it being understood that (A)Β the Loan Parties shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B)Β such insurance companies shall have no rights of subrogation against the Administrative Agent, the Lenders, any Issuing Bank or their agents or employees. If, however, the
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insurance policies, as a matter of the internal policy of such insurer, do not provide waiver of subrogation rights against such parties, as required above, then each of Holdings and the Borrower, on behalf of itself and behalf of each of its subsidiaries, hereby agrees, to the extent permitted by law, to waive, and further agrees to cause each of their Subsidiaries to waive, its right of recovery, if any, against the Administrative Agent, the Lenders, any Issuing Bank and their agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage by the Administrative Agent under this SectionΒ 5.02 shall in no event be deemed a representation, warranty or advice by the Administrative Agent or the Lenders that such insurance is adequate for the purposes of the business of Holdings, the Borrower and the Subsidiaries or the protection of their properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as (a)Β the validity or amount thereof shall be contested in good faith by appropriate proceedings, (b)Β Holdings, the Borrower or the affected Subsidiary, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP with respect thereto, and (c)Β the failure to make such payment and discharge could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i)Β a consolidated balance sheet and related statements of operations, cash flows and ownersβ equity showing the financial position of the Borrower and its subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year and, commencing with the fiscal year ending DecemberΒ 31, 2005, setting forth in comparative form the corresponding figures for the prior fiscal year, and (ii)Β managementβs discussion and analysis of significant operational and financial developments during such fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ownersβ equity shall be audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of Annual Reports on Form 10-K of the Borrower and its consolidated subsidiaries shall satisfy the requirements of this SectionΒ 5.04(a) to the extent such Annual Reports include the information specified herein);
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(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ending SeptemberΒ 30, 2005 (it being agreed that (x)Β the deliverables under this clause (b)Β in respect of the fiscal quarter ending SeptemberΒ 30, 2005 shall not be required to be furnished until the 75th day following SeptemberΒ 30, 2005, solely to the extent permitted under the Senior Notes Indenture at such time, and (y)Β such deliverables shall be furnished no later than the date such requirements are complied with under the Senior Notes Indenture), (i)Β a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and (ii)Β managementβs discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes (it being understood that the delivery by the Borrower of Quarterly Reports on Form 10-Q of the Borrower and its consolidated subsidiaries shall satisfy the requirements of this SectionΒ 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) (i) concurrently with any delivery of financial statements under paragraph (a)Β or (b)Β above, a certificate of a Responsible Officer of the Borrower (A)Β certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B)Β commencing with the fiscal period ending MarchΒ 31, 2006, setting forth computations of the Consolidated Leverage Ratio in reasonable detail as of the end of the applicable fiscal period, (C)Β commencing with the fiscal period ending MarchΒ 31, 2006, setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Sections 6.10 and 6.11, and (D)Β setting forth the calculation and uses of Available Free Cash Flow Amount for the fiscal period then ended if the Borrower shall have used the Available Free Cash Flow Amount for any purpose during such fiscal period, and (ii)Β concurrently with any delivery of financial statements under paragraph (a)Β above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other reports and statements filed by Holdings, the Borrower or
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any of its subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d)Β shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or any website operated by the SEC containing βXXXXXβ database information;
(e) if, as a result of any change in accounting principles and policies from those applied in the preparation of the financial statements referred to in SectionΒ 3.05(a)(ii) for the fiscal year ended DecemberΒ 31, 2004, the consolidated financial statements of the Borrower and its subsidiaries delivered pursuant to paragraph (a)Β above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a)Β above following such change, a schedule prepared by a Responsible Officer on behalf of the Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a detailed consolidated quarterly budget for such fiscal year and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the βBudgetβ);
(g) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g)Β or SectionΒ 5.11(f);
(h) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Holdings, the Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrower or any Subsidiary;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(j) promptly upon request by the Administrative Agent, copies of: (i)Β each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii)Β the most recent actuarial valuation report for any Plan; (iii)Β all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate,
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concerning an ERISA Event; and (iv)Β such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent written notice of the following promptly after any Responsible Officer of Holdings or the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;
(b) the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against Holdings, the Borrower or any of its subsidiaries as to which an adverse determination is reasonably probable and that, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(c) any other development specific to Holdings, the Borrower or any of its subsidiaries that is not a matter of general public knowledge and that has had, or could reasonably be expected to have, a Material Adverse Effect; and
(d) the development of any ERISA Event that, together with all other ERISA Events that have developed or occurred, could reasonably be expected to have a Material Adverse Effect.
SECTION 5.06. Compliance with Laws. Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided, that this SectionΒ 5.06 shall not apply to Environmental Laws, which are the subject of SectionΒ 5.10, or to laws related to Taxes, which are the subject of SectionΒ 5.03.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Maintain all financial records in accordance with GAAP and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender to visit and inspect the financial records and the properties of Holdings, the Borrower or any of the Subsidiaries at reasonable times, upon reasonable prior notice to Holdings or the Borrower, and as often as reasonably requested and to make extracts from and copies of such financial records, and permit any persons designated by the Administrative Agent or, upon the occurrence and during the continuance of an Event of Default, any Lender upon reasonable prior notice to Holdings or the Borrower to discuss the affairs, finances and condition of Holdings, the Borrower or any of the Subsidiaries with the officers thereof and independent accountants therefor (subject to reasonable requirements of confidentiality, including requirements imposed by law or by contract).
SECTION 5.08. Payment of Obligations. Pay its material Indebtedness and other material obligations, including material Tax liabilities, before the same shall become delinquent or in default, except where (a)Β the validity or amount thereof is being contested in good faith by
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appropriate proceedings, (b)Β the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (c)Β the failure to make such payment could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.09. Use of Proceeds. Use the proceeds of the Loans and the Letters of Credit only as contemplated in SectionΒ 3.12.
SECTION 5.10. Compliance with Environmental Laws. Comply with all Environmental Laws applicable to its operations and properties; and comply with and obtain and renew all material permits, licenses and other approvals required pursuant to Environmental Law for its operations and properties, except, in each case with respect to this SectionΒ 5.10, to the extent the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.11. Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Administrative Agent may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties, and provide to the Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) If any asset (including any real property (other than real property covered by SectionΒ 5.11(c) below) or improvements thereto or any interest therein) that has an individual Fair Market Value in an amount, or if purchase price therefor is, greater than $2,500,000 is acquired by Holdings, the Borrower or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and other than assets that (i)Β are subject to secured financing arrangements containing restrictions permitted by SectionΒ 6.09(c) pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii)Β are not required to become subject to the Liens of the Administrative Agent pursuant to SectionΒ 5.11(g) or the Security Documents), cause such asset to be subjected to a Lien securing the Obligations pursuant to appropriate Security Documents and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a)Β of this SectionΒ 5.11, all at the expense of the Loan Parties, subject to paragraph (g)Β below.
(c) Promptly notify the Administrative Agent of the acquisition of, and, upon the written request of the Administrative Agent, grant and cause each of the Subsidiary Loan Parties to grant to the Administrative Agent security interests and mortgages in, such real property of the Borrower or any such Subsidiary Loan Parties as are not covered by the original Mortgages (other than assets that (i)Β are subject to permitted secured financing arrangements containing restrictions permitted by SectionΒ 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii)Β are not required to become subject to the Liens of
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the Administrative Agent pursuant to SectionΒ 5.11(g) or the Security Documents), to the extent acquired after the Closing Date and having a value or purchase price at the time of acquisition in excess of $2,500,000 pursuant to documentation in such form as is reasonably satisfactory to the Administrative Agent (each, an βAdditional Mortgageβ) and constituting valid and enforceable perfected Liens superior to and prior to the rights of all third persons subject to no other Liens except as are permitted by SectionΒ 6.02 or arising by operation of law, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Administrative Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g)Β below. With respect to each such Additional Mortgage, the Borrower shall deliver, or cause the applicable Subsidiary Loan Party to deliver, to the Administrative Agent contemporaneously therewith a title insurance policy or policies or marked up unconditional binder of title insurance, paid for by the Borrower or the applicable Loan Party, issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by SectionΒ 6.02 and Liens arising by operation of law, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request and a survey if reasonably available with respect to property outside the United States.
(d) In connection with (i)Β the formation or acquisition of any direct or indirect Domestic Subsidiary of Holdings or the Borrower or any direct Foreign Subsidiary of any Loan Party or (ii)Β any existing direct or indirect subsidiary of Holdings or the Borrower becoming a Subsidiary Loan Party, within ten Business Days after the date of such formation, acquisition or Subsidiary becoming a Subsidiary Loan Party, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after such date or such longer period as the Administrative Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such subsidiary and with respect to any Equity Interest in or Indebtedness of such subsidiary owned by or on behalf of any Loan Party, subject to SectionΒ 5.11(g).
(e) If any newly formed or acquired or any existing subsidiary of Holdings or the Borrower becomes a βfirst tierβ Foreign Subsidiary that is a Material Subsidiary of any Loan Party, within ten Business Days after the date such subsidiary becomes such a βfirst tierβ Foreign Subsidiary, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after such date or such longer period as the Administrative Agent shall agree (or such later date as may be the first practicable date because of delays caused by foreign legal requirements, despite diligent efforts on the part of the Loan Parties), cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such subsidiary owned by or on behalf of any Loan Party, subject to SectionΒ 5.11(g).
(f) (i) Furnish to the Administrative Agent prompt written notice of any change (A)Β in any Loan Partyβs corporate or organization name, (B)Β in any Loan Partyβs identity or organizational structure or (C)Β in any Loan Partyβs organizational identification number; provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times
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following such change to have a valid, legal and perfected security interest in all the Collateral for the benefit of the applicable Secured Parties (to the extent intended to be created by the Security Documents) and (ii)Β promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral and Guarantee Requirement and the other provisions of this SectionΒ 5.11 need not be satisfied with respect to (i)Β any real property held by the Borrower or any of the Subsidiaries as a lessee under a lease, (ii)Β any Equity Interests acquired after the Closing Date in accordance with this Agreement if, and to the extent that, and for so long as (A)Β such Equity Interests constitute less 100% of all applicable Equity Interests of such person and the persons holding the remainder of such Equity Interests are not Affiliates, (B)Β doing so would violate or require a consent (that could not be readily obtained without undue burden on the Loan Parties) under applicable law or regulations or a contractual obligation binding on such Equity Interests, including with regard to any Insurance Subsidiary and any future Banking Subsidiary and (C)Β such law or obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests, (iii)Β any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate a contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to SectionΒ 6.01(i) that is secured by a Lien permitted pursuant to SectionΒ 6.02(i) or (j)Β and (iv)Β any Subsidiary or asset with respect to which the Administrative Agent determines that the cost of the satisfaction of the Collateral and Guarantee Requirement or the provisions of this SectionΒ 5.11 with respect thereto exceeds the value of the security afforded thereby; provided, that, upon the reasonable request of the Administrative Agent, Holdings and the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (ii)Β and (iii)Β above.
(h) In the event that any requirement set forth in SectionΒ 4.02(e) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, cause such requirement to be satisfied as promptly as practicable after the Closing Date and, in any event, cause all such requirements to be satisfied not later than 90Β days following the Closing Date (or such later date, based on successive periods of 90 days, as the Administrative Agent may agree because of delays despite diligent efforts, but in no event later than 360 days after the Closing Date).
SECTION 5.12. Fiscal Year; Accounting. In the case of the Borrower, cause its fiscal year to end on DecemberΒ 31.
SECTION 5.13. Rating. In the case of the Borrower, use commercially reasonable efforts to maintain ratings from each of Xxxxxβx and S&P for the Term Loans.
SECTION 5.14. Lender Meetings. In the case of the Borrower, upon the request of the Administrative Agent, participate in a meeting of the Administrative Agent and the Lenders once during each fiscal year to be held at such time and location as may be agreed upon by the Borrower and the Administrative Agent.
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SECTION 5.15. Compliance with Material Contracts. Perform and observe all of the terms and conditions of each material agreement to be performed or observed by it, maintain each such material agreement in full force and effect, enforce each such material agreement in accordance with its terms, except where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.
ARTICLE VI
Negative Covenants
Each of Holdings (solely with respect to Sections 6.08(b) and 6.09) and the Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect (other than in respect of contingent indemnification obligations) and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, Holdings will not (solely with respect to Sections 6.08(b) and 6.09) and the Borrower will not, and will not cause or permit any of the Material Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness (other than intercompany Indebtedness) of the Subsidiaries existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on ScheduleΒ 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) Indebtedness of the Borrower and the Subsidiaries pursuant to Swap Agreements permitted by SectionΒ 6.12;
(d) Indebtedness of the Borrower and the Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workersβ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, provided in the ordinary course of business; provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workersβ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i)Β Indebtedness of any Subsidiary
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that is not a Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be subject to SectionΒ 6.04(b), and (ii)Β Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, reasonably required in the conduct of the business (giving effect to any growth or expansion of such business permitted hereunder), including those incurred to secure health, safety, insurance and environmental obligations of the Borrower and its Subsidiaries as conducted in accordance with good and prudent business industry practice and otherwise as permitted by the Loan Documents;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided, that (i)Β such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days of notification to the Borrower of its incurrence and (ii)Β such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, and (ii)Β any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h)Β or paragraph (i)Β of this SectionΒ 6.01 and the Remaining Present Value of outstanding leases permitted under SectionΒ 6.03), would not exceed $95,000,000 in the aggregate;
(i) (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, (ii)Β any Permitted Refinancing Indebtedness in respect thereof, and (iii)Β Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under SectionΒ 6.03, collectively, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h)Β of this SectionΒ 6.01 or this paragraph (i)Β and the Remaining Present Value of leases permitted under SectionΒ 6.03) would not exceed $95,000,000 in the aggregate;
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(j) Indebtedness in respect of (i)Β the Senior Notes issued on the Closing Date, (ii)Β either (A)Β the Bridge Financing funded on the Closing Date and thereafter, any Senior Subordinated Notes issued in exchange therefor or to refinance the Bridge Financing, or (B)Β the Senior Subordinated Notes (as contemplated by clause (c)Β of the definition of βSenior Subordinated Notesβ) issued on the Closing Date, (iii)Β additional Senior Notes issued after the Closing Date yielding gross cash proceeds not to exceed $34,000,000 so long as, if any Bridge Financing is still outstanding, the net proceeds thereof are applied to prepay the Bridge Financing, (iv)Β any Permitted Refinancing Indebtedness incurred to Refinance the Bridge Financing , and (v)Β after no Bridge Financing remains outstanding, any Permitted Refinancing Indebtedness incurred to Refinance such Senior Notes or Senior Subordinated Notes;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k)Β not in excess of $90,000,000;
(l) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary expressly permitted to be incurred under this Agreement; provided, that, notwithstanding anything to the contrary in this SectionΒ 6.01, (i)Β the Borrower and the Subsidiary Loan Parties shall not Guarantee the Indebtedness of any Subsidiary that is not a Subsidiary Loan Party unless such Guarantee is permitted under SectionΒ 6.04, (ii)Β any Guarantees by the Borrower or any Subsidiary Loan Party under this SectionΒ 6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms not less favorable to the Lenders than the subordination terms of such other Indebtedness, and (iii)Β no Subsidiary shall Guarantee the Senior Notes, the Bridge Financing or the Senior Subordinated Notes or any Indebtedness incurred under SectionΒ 6.01(s) or (t)Β hereunder unless such Subsidiary is also a Subsidiary Loan Party in compliance with the Collateral and Guarantee Requirement;
(m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition, in each case, to the extent such obligation or transaction is permitted by this Agreement;
(n) reimbursement and similar obligations of Subsidiaries in respect of letters of credit or bank guarantees (other than Letters of Credit issued pursuant to SectionΒ 2.05) having an aggregate face amount not in excess of $10,000,000;
(o) Indebtedness of the Borrower and the Subsidiaries supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
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(p) Indebtedness consisting of (x)Β the financing of insurance premiums or (y)Β take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(q) to the extent constituting Indebtedness, all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on Indebtedness otherwise permitted to be incurred pursuant to this SectionΒ 6.01;
(r) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by Lenders and, in each case, established for the Borrowerβs and such Subsidiariesβ ordinary course of operations (such Indebtedness, the βOverdraft Lineβ), which Indebtedness may be secured as, but only to the extent, provided in SectionΒ 6.02(b) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $20,000,000);
(s) (i) Permitted Subordinated Indebtedness incurred by the Borrower or any Subsidiary; provided, that, (A)Β immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.00 to 1.00, (B)Β at the time of the incurrence of such Permitted Subordinated Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (C)Β a Responsible Officer of the Borrower shall have delivered an officerβs certificate demonstrating the calculation of the Senior Secured Bank Leverage Ratio in form and detail reasonably satisfactory to the Administrative Agent, and (ii)Β Permitted Refinancing Indebtedness in respect thereof; provided, further, that (x)Β the Permitted Subordinated Indebtedness shall not be used to make, directly or indirectly, any Dividend unless immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness and payment of such Dividend on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 1.50 to 1.00, and (y)Β so long as any Bridge Financing is outstanding, all net proceeds of any such Permitted Subordinated Indebtedness shall be applied to repay the Bridge Financing and no Permitted Refinancing Indebtedness shall be permitted in respect of any Permitted Subordinated Indebtedness;
(t) (i) Permitted Senior Indebtedness incurred by the Borrower or any Subsidiary; provided, that, (A)Β immediately after giving effect to the incurrence of such Permitted Senior Indebtedness on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.00 to 1.00, (B)Β at the time of the incurrence of such Permitted Senior Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (C)Β a Responsible Officer of the Borrower shall have delivered an officerβs certificate demonstrating the calculation of the Senior Secured Bank Leverage Ratio in form and detail reasonably satisfactory to the Administrative Agent, and (ii)Β Permitted Refinancing Indebtedness in respect thereof; provided, further, that to the extent that the terms of such Indebtedness is
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permitted hereunder, any increase in the amount of such Indebtedness as a result of capitalized or paid-in-kind interest or accreted principal on such Indebtedness pursuant to such terms shall not constitute a further issuance or incurrence of Indebtedness for purposes of this SectionΒ 6.01(t); provided, further, that (x)Β the Permitted Senior Indebtedness shall not be used to make, directly or indirectly, any Dividend unless immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness and payment of such Dividend on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 1.50 to 1.00, and (y)Β so long as any Bridge Financing is outstanding, no Permitted Senior Indebtedness shall be issued or incurred and no Permitted Refinancing Indebtedness shall be permitted in respect of any Permitted Subordinated Indebtedness;
(u) deposits raised by any Material Subsidiary that is subject to state and/or federal banking regulations that constitute Indebtedness owing to such depositor and any discounts or borrowing by such Material Subsidiary;
(v) up to $25,000,000 in aggregate principal amount of Indebtedness of Foreign Subsidiaries that are not Loan Parties at any time outstanding; provided, that to the extent that the terms of such Indebtedness are permitted hereunder, any increase in the amount of such Indebtedness as a result of capitalized or paid-in-kind interest or accreted principal on such Indebtedness pursuant to such terms shall not constitute a further issuance or incurrence of Indebtedness for purposes of this SectionΒ 6.01(v); and
(w) Indebtedness incurred by the Borrower or any of its Subsidiaries to fund losses, damages, liabilities, claims, costs and expenses (including attorneyβs fees, interest, penalties, judgments and settlements, collectively, βLossesβ), by reason of any litigation disclosed in this Agreement (including the schedules hereto) or the Offering Circular, including the financial statements included therein, or relating to the same facts and circumstances as disclosed; provided, that, as certified in an Officerβs Certificate executed by a Responsible Officer of the Borrower (i)Β the Borrower has provided to Cendant a notice in respect of such losses and has a reasonable good faith belief that it its entitled to be indemnified by Cendant pursuant to the Purchase Agreement in respect of such losses and (ii)Β the Indebtedness incurred pursuant to this clause (w)Β is in an amount equal to or less than the amount of the losses for which indemnification is claimed; provided, further, that (i)Β after 30 days of the Borrower receiving funds in satisfaction of such indemnity or (ii)Β if Cendant gives written notice to the Borrower or any Subsidiary Loan Party that it disputes the Borrowerβs entitlement to such indemnity with respect to such losses and (A)Β such dispute is not challenged by the Borrower within 30 days of receipt of such notice or (B)Β there is a final judgment of a court of competent jurisdiction confirming that the Borrower is not entitled to such indemnity, which judgment is not discharged, waived or stayed for a period of 60 days, any amounts incurred pursuant to this clause (w)Β in respect of such indemnity that remain outstanding shall no longer be permitted under this clause (w)Β and shall be deemed to be incurred on such date.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including stock or other securities of any person, including the Borrower or
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any Subsidiary of the Borrower) at the time owned by it or on any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Subsidiaries existing on the Closing Date and set forth on Schedule 6.02(a); provided, that (i)Β such Liens shall secure only those obligations that they secure on the Closing Date (and Permitted Refinancing Indebtedness in respect thereof permitted by SectionΒ 6.01(a)) and shall not subsequently apply to any other property or assets of the Borrower or any Subsidiary and (ii)Β in the case of a Lien securing Permitted Refinancing Indebtedness, any such Lien is permitted, subject to compliance with clause (e)Β of the definition of the term βPermitted Refinancing Indebtednessβ;
(b) any Lien created under the Loan Documents or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage; provided, however, in no event shall the holders of the Indebtedness under the Overdraft Line have the right to receive proceeds in respect of a claim in excess of $20,000,000 in the aggregate, together with (i)Β any accrued and unpaid interest in respect of Indebtedness under the Overdraft Line and (ii)Β any accrued and unpaid fees and expenses owing by the Subsidiaries under the Overdraft Line from the enforcement of any remedies available to the Secured Parties under all of the Loan Documents;
(c) any Lien on any property or asset of the Borrower or any Subsidiary (i)Β securing Indebtedness or Permitted Refinancing Indebtedness permitted by SectionΒ 6.01(h) or (ii)Β acquired after the Closing Date in a transaction permitted by this Agreement; provided, that such Lien (A)Β does not apply to any other property or assets of Holdings, the Borrower or any of the Subsidiaries not securing such Indebtedness or other obligations owing to the same financier as the financier of such Indebtedness or other obligations or to any person to which such financier has assigned such Indebtedness or other obligations, at the date of the acquisition of such property or asset (other than after acquired property subjected to a Lien securing Indebtedness incurred prior to such date and which Indebtedness is permitted hereunder, such Indebtedness owing to the same financier as the financier of such Indebtedness at the date of the acquisition, that require a pledge of after acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (B)Β such Lien is not created in contemplation of or in connection with such acquisition, (C)Β in the case of a Lien securing Permitted Refinancing Indebtedness, any such Lien is permitted, subject to compliance with clause (e)Β of the definition of the term βPermitted Refinancing Indebtednessβ and (D)Β in the case of clause (ii)Β of this SectionΒ 6.02(c), (x)Β after giving effect to any such Lien and the incurrence of Indebtedness, if any, secured by such Lien is created, incurred, acquired or assumed (or any prior Indebtedness becomes so secured) on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio on the last day of the Borrowerβs then most recently completed fiscal quarter for which financial statements are available shall be less than or equal to 2.75 to 1.00, (y)Β at the time of the incurrence of such Lien and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (z)Β the Indebtedness or other obligations secured by such Lien are otherwise permitted by this Agreement;
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(d) Liens for Taxes, assessments or other governmental charges or levies not yet delinquent or that are being contested in compliance with SectionΒ 5.03;
(e) landlordβs, carriersβ, warehousemenβs, mechanicsβ, materialmenβs, repairmenβs, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, Holdings, the Borrower or any Subsidiary shall have set aside on its books reserves in accordance with GAAP;
(f) (i) deposits and other Liens made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workersβ compensation, unemployment insurance and other social security laws or regulations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii)Β deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings, the Borrower or any Subsidiary;
(g) deposits and other Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with public utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred by Holdings, the Borrower or any Subsidiary in the ordinary course of business, including those incurred to secure health, safety, insurance and environmental obligations in the ordinary course of business;
(h) zoning restrictions, survey exceptions, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights-of-way, restrictions on or agreements dealing with the use of real property, servicing agreements, development agreements, site plan agreements and other similar encumbrances incurred in the ordinary course of business and title defects or irregularities that are of a minor nature and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Subsidiary;
(i) purchase money security interests in equipment or other property or improvements thereto hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any Subsidiary (including the interests of vendors and lessors under conditional sale and title retention agreements); provided, that (i)Β such security interests secure Indebtedness permitted by SectionΒ 6.01(i) (including any Permitted Refinancing Indebtedness in respect thereof), (ii)Β such security interests are incurred, and the Indebtedness secured thereby is created, within 270 days after such acquisition, (iii)Β the Indebtedness secured thereby does not exceed 100% of the cost of such equipment or other property or improvements at the time of such acquisition or construction, including transaction costs incurred by the Borrower or any Subsidiary in connection with such
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acquisition, and (iv)Β such security interests do not apply to any other property or assets of Holdings, the Borrower or any Subsidiary (other than to accessions to such equipment or other property or improvements but not to other parts of the property to which any such improvements are made); provided, further, that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender; provided, further, that individual financings of equipment provided by a single lender may be cross-collateralized to other financings of equipment provided solely by such lender; provided, still further, that such security interest shall not be required to secure Indebtedness under SectionΒ 6.01(i), if (A)Β after giving effect to any such Lien and the incurrence of Indebtedness secured by such Lien is created, incurred, acquired or assumed (or any prior Indebtedness becomes so secured) on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio on the last day of the Borrowerβs then most recently completed fiscal quarter for which financial statements are available shall be less than or equal to 3.00 to 1.00 (ii)Β at the time of the incurrence of such Lien and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (iii)Β the Indebtedness or other obligations secured by such Lien are otherwise permitted by this Agreement;
(j) Liens arising out of capitalized lease transactions permitted under SectionΒ 6.03, so long as such Liens attach only to the property sold and being leased in such transaction and any accessions thereto or proceeds thereof and related property;
(k) Liens securing judgments that do not constitute an Event of Default under SectionΒ 7.01(j); provided, that such Liens, to the extent that they secure aggregate amounts of more than $30,000,000, shall be discharged within 60 days of the creation thereof;
(l) other Liens with respect to property or assets of the Borrower or any Subsidiary not constituting, or required to constitute, Collateral for the Obligations; provided that (i)Β after giving effect to any such Lien and the incurrence of Indebtedness, if any, secured by such Lien is created, incurred, acquired or assumed (or any prior Indebtedness becomes so secured) on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio on the last day of the Borrowerβs then most recently completed fiscal quarter for which financial statements are available shall be less than or equal to 3.00 to 1.00 (ii)Β at the time of the incurrence of such Lien and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (iii)Β the Indebtedness or other obligations secured by such Lien are otherwise permitted by this Agreement;
(m) Liens disclosed by the title insurance policies delivered on or subsequent to the Closing Date and pursuant to SectionΒ 5.11 and any replacement, extension or renewal of any such Lien; provided, that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided, further, that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement;
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(n) any interest or title of a lessor under any leases or subleases entered into by the Borrower or any Subsidiary in the ordinary course of business;
(o) Liens that are contractual rights of set-off (i)Β relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii)Β relating to pooled deposit or sweep accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and the Subsidiaries or (iii)Β relating to purchase orders and other agreements entered into with customers of the Borrower or any Subsidiary in the ordinary course of business;
(p) Liens arising solely by virtue of any statutory or common law provision relating to bankerβs liens, rights of set-off or similar rights;
(q) Liens securing obligations in respect of trade-related letters of credit permitted under SectionΒ 6.01(f), (k)Β or (n)Β and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit and the proceeds and products thereof;
(r) licenses of intellectual property and software that are not material to the conduct of any of the business lines of the Borrower and the Subsidiaries and the value of which does not constitute a material portion of the assets of the Borrower and its Subsidiaries, taken as a whole, and such license does not materially interfere with the ordinary course of conduct of the business of the Borrower or any of its Subsidiaries;
(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(t) Liens on the assets of a Foreign Subsidiary that is not a Loan Party that secure Indebtedness of such Foreign Subsidiary that is permitted to be incurred under SectionΒ 6.01;
(u) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of the Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder with respect to any acquisition that would constitute an Investment permitted by this Agreement;
(v) Liens arising out of consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(w) Liens in favor of the Borrower or any Subsidiary Loan Party;
(x) Liens arising from precautionary Uniform Commercial Code financing statements or consignments entered into in connection with any transaction otherwise permitted under this Agreement;
(y) Liens of franchisors in the ordinary course of business not securing Indebtedness;
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(z) Liens on not more than $10,000,000 of deposits securing Swap Agreements permitted to be incurred under SectionΒ 6.12;
(aa) Liens securing insurance premium financing arrangements; provided, that such Liens are limited to the applicable unearned insurance premiums;
(bb) Liens incurred to secure cash management services in the ordinary course of business; provided, that such Liens are not incurred in connection with, and do not secure, any borrowings or Indebtedness;
(cc) deposits or other Liens with respect to property or assets of the Borrower or any Subsidiary; provided, that such property and assets shall have an aggregate fair market value (valued at the time of creation of the Liens) of not more than $15,000,000 at any time; and
(dd) leases and subleases not constituting Capital Lease Obligations of real property not material to the conduct of any business line of the Borrower and its Subsidiaries granted to others in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries.
Notwithstanding the foregoing, (i)Β no Liens shall be permitted to exist, directly or indirectly, on (a)Β Pledged Collateral and (b)Β any Indebtedness of the Borrower or any Subsidiary to the Borrower or a Domestic Subsidiary (unless such Indebtedness shall have become subject to a first-priority Lien securing the Obligations), other than Liens in favor of the Administrative Agent for the benefit of the Secured Parties and Liens permitted by SectionΒ 6.02(d) or (p), and (ii)Β no Liens over any deposit account of the Borrower or any Subsidiary Loan Party not in favor of the Administrative Agent for the benefit of the Secured Parties other than Liens permitted by SectionΒ 6.02(b), (d), (f), (g), (k), (o)(i), (o)(ii), (p)Β or (bb) shall be perfected.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a βSale and Lease-Back Transactionβ); provided, that (a)Β a Sale and Lease-Back Transaction shall be permitted with respect to property (i)Β owned by the Borrower or any Domestic Subsidiary that is acquired after the Closing Date so long as such Sale and Lease-Back Transaction is consummated within 270 days of the acquisition of such property, or (ii)Β owned by any Foreign Subsidiary that is not a Loan Party regardless of when such property was acquired, and (b)Β at the time the lease in connection therewith is entered into, and after giving effect to the entering into of such lease, the Remaining Present Value of such lease (together with Indebtedness outstanding pursuant to paragraphs (h)Β and (i)Β of SectionΒ 6.01 and the Remaining Present Value of outstanding leases previously entered into under this SectionΒ 6.03) would not exceed $95,000,000 in the aggregate.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger with a person that is not a Wholly Owned Subsidiary
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immediately prior to such merger) any Equity Interests, Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, an βInvestmentβ), in any other person, except:
(a) Investments by Holdings in the Equity Interests of the Borrower at any time, which Equity Interests will constitute Pledged Collateral;
(b) (i) Investments by the Borrower or the Subsidiaries in the Equity Interests of the Subsidiaries effective as of the Closing Date as set forth on Schedule 6.04 and Investments by the Borrower and the Subsidiaries consisting of intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary effective as of the Closing Date as set forth on Schedule 6.04; (ii)Β Investments by the Borrower or any Subsidiary Loan Party in any Subsidiary Loan Party; (iii)Β Investments by any Foreign Subsidiary that is not a Subsidiary Loan Party in any Foreign Subsidiary that is not a Subsidiary Loan Party; and (iv)Β Investments by the Borrower or any Subsidiary Loan Party in any Subsidiary not otherwise permitted in clause (ii)Β above or in any Similar Business in an aggregate amount for all such Investments made or deemed made pursuant to this SectionΒ 6.04(b)(iv) not to exceed (A)Β the greater of (x)Β $95,000,000 and (y)Β 5% of Consolidated Total Assets plus (B)Β after an applicable Bridge Financing Covenant Release, an amount not to exceed the Available Free Cash Flow Amount on the date of such Investment as elected by the Borrower to be applied to this SectionΒ 6.04(b)(iv)(B), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations shall not be included in calculating the limitation in this SectionΒ 6.04(b) at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under SectionΒ 6.05;
(e) (i) loans and advances to employees of Holdings, the Borrower or any Subsidiary in the ordinary course of business not to exceed $15,000,000 in the aggregate at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii)Β advances of payroll payments and expenses to employees in the ordinary course of business;
(f) (i) accounts receivable arising, and trade credit granted, in the ordinary course of business, (ii)Β any securities received in satisfaction or partial satisfaction of defaulted accounts receivable from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (iii)Β any prepayments and other credits to suppliers made in the ordinary course of business;
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(g) Swap Agreements permitted pursuant to SectionΒ 6.12;
(h) Investments existing on the Closing Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Sections 6.02(f), (g), (k), (s)Β and (u);
(j) after an applicable Bridge Financing Covenant Release, additional Investments by the Borrower or any of its Subsidiaries having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this SectionΒ 6.04(j) that are at that time outstanding (after giving effect to the sale of Investments made pursuant to this SectionΒ 6.04(j) to the extent the proceeds of such sale received by the Borrower and its Subsidiaries consists of cash and Permitted Investments), not to exceed the greater of (x)Β $110,000,000 and (y)Β 5% of Consolidated Total Assets of the Borrower at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(k) after an applicable Bridge Financing Covenant Release, Investments constituting Permitted Business Acquisitions;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(m) intercompany loans and other Investments between Foreign Subsidiaries that are not Loan Parties;
(n) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(o) the Acquisition;
(p) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(q) Investments of a Subsidiary acquired after the Closing Date or of a person merged into or consolidated with a Subsidiary in accordance with SectionΒ 6.05 after the Closing Date to the extent that (i)Β such acquisition, merger or consolidation is permitted under this SectionΒ 6.04, (ii)Β such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation, and (iii)Β such Investments were in existence on the date of such acquisition, merger or consolidation; and
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(r) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings; provided, that (i)Β no Change of Control would result therefrom, and (ii)Β such Equity Interests do not constitute Disqualified Stock;
(s) Investments in joint ventures not in excess of $15,000,000 in the aggregate;
(t) Guarantees by (i)Β the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by any Subsidiary Loan Party in the ordinary course of business and (ii)Β any Foreign Subsidiary of operating leases (other than Capital Lease Obligations) or of obligations that do not constitute Indebtedness, in each case, entered into by any Foreign Subsidiary in the ordinary course of business;
(u) Investments made with Excluded Contributions; provided, that if the Bridge Financing is outstanding, such Investments may only be made to the extent that the Bridge Financing is not required to be prepaid with such Excluded Contributions; and
(v) Investments in a Banking Subsidiary not in excess of $15,000,000.
The amount of Investments made or deemed made pursuant to SectionΒ 6.04(b)(iv) and SectionΒ 6.04(j) shall be valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof, but after deducting any return of capital actually received by the Borrower or the respective Subsidiary Loan Parties in respect of investments or loans theretofore made after the Closing Date by them pursuant to such Sections or, in the case of Guarantees made by them pursuant to such Sections, after deducting any reduction in the amount thereof without having made payment thereunder.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or business of any other person, except that this Section shall not prohibit:
(a) (i) the lease, purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary, (ii)Β the acquisition of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii)Β the sale of obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv)Β the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i)Β the merger of any Subsidiary into the Borrower in a transaction in which the Borrower is the survivor, (ii)Β the merger or consolidation of any Domestic Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party
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and, in the case of each of clauses (i)Β and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii)Β the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv)Β the liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) in accordance with SectionΒ 5.01(a)(ii) if the Borrower determines in good faith that such liquidation, change in form or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary Loan Party (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with SectionΒ 6.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h)Β below shall not exceed, in any fiscal year of the Borrower, the greater of $110,000,000 and 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by SectionΒ 6.03;
(e) Investments permitted by SectionΒ 6.04, Liens permitted by SectionΒ 6.02 and Dividends permitted by SectionΒ 6.06;
(f) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and the Subsidiaries as a whole, as determined in good faith by the management of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x)Β $10,000,000 shall be evidenced by a certificate from a Responsible Officer of the Borrower and (y)Β $25,000,000 shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors of the Borrower;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this SectionΒ 6.05; provided, that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h)Β plus the aggregate gross amount of such proceeds in reliance upon clause (i)Β in the proviso to SectionΒ 6.05(c) above shall not exceed, in any fiscal year of the Borrower, the greater of $110,000,000 and 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with SectionΒ 2.11(b);
(i) after an applicable Bridge Financing Covenant Release, any merger or consolidation in order to effect a Permitted Business Acquisition; provided, that following any such merger or consolidation (i)Β involving the Borrower, the Borrower is the surviving corporation, (ii)Β involving a Domestic Subsidiary, the surviving or resulting
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entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii)Β involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(j) non-exclusive licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business and other licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary that are not material to the conduct of any of the business lines of the Borrower and the Subsidiaries, and the value of which does not constitute a material portion of the assets of the Borrower and its Subsidiaries, taken as a whole, and that are not material to the ordinary course of conduct of the business of the Borrower or any of its Subsidiaries;
(k) the lease, assignment or sublease of any real or personal property in the ordinary course of business;
(l) sales, leases or other dispositions of inventory, equipment or other assets (excluding Equity Interests, assets constituting a business division, unit, line of business, all or substantially all of the assets of any Material Subsidiary, Sale and Lease-Back Transactions and receivables) of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; provided, that the Net Proceeds thereof are applied in accordance with SectionΒ 2.11(b);
(m) the sale, transfer or other disposition by the Borrower or any of its Subsidiaries of the Netcentives Assets to Holdings or any Affiliate of Holdings on the Closing Date, including pursuant to SectionΒ 6.06(g);
(n) any Subsidiary Spin-off, to the extent Net Proceeds received are used to repay the Loans in accordance with SectionΒ 2.11(a) or, subject to SectionΒ 6.09(b)(i), to repay or redeem the Bridge Financing, the Senior Notes or the Senior Subordinated Notes; and
(o) any sale of Equity Interests in, or other securities of, an Unrestricted Subsidiary.
Notwithstanding anything to the contrary contained in SectionΒ 6.05 above, (i)Β no sale, transfer or other disposition of assets shall be permitted by this SectionΒ 6.05 (except as permitted to Loan Parties pursuant to SectionΒ 6.05(c)) unless such disposition is for Fair Market Value, and (iii)Β no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), (h)Β or (l)Β of this SectionΒ 6.05 unless such disposition is for at least 75% cash consideration; provided, that for purposes of clause (i), the amount of any secured Indebtedness of the Borrower or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrowerβs or such Subsidiaryβs most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash.
SECTION 6.06. Dividends and Distributions. Declare or pay, directly or indirectly, any dividend or make, directly or indirectly, any other distribution (by reduction of
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capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any subsidiary of the Borrower to purchase or acquire) any of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests of the person redeeming, purchasing, retiring or acquiring such shares) (any of the foregoing dividends, distributions, redemptions, repurchases, retirements, other acquisitions or setting aside of amounts, βDividendsβ); provided, however, that:
(a) (i) any Subsidiary may declare and pay dividends to, or make other distributions to, the Borrower or any Subsidiary that is a direct parent of such Subsidiary and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of the Borrower or such Subsidiary) based on their relative ownership interests; and (ii)Β to the extent permitted by SectionΒ 6.04, any Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Subsidiary that is not the Borrower or a Subsidiary;
(b) the Borrower may declare and pay dividends or make other distributions to Holdings in respect of (i)Β overhead, legal, accounting and other professional fees and expenses of Holdings and actual Tax liabilities of Holdings for the consolidated group of which Holdings is parent to the extent that Holdings, and not the Borrower, (A)Β files a consolidated U.S. federal tax return that includes the Borrower and its Subsidiaries in an amount not to exceed the amount that the Borrower and its Subsidiaries would have been required to pay in respect of federal, state or local taxes, as the case may be, in respect of such year if the Borrower and its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or stand-alone group, and (B)Β actually pays, or will pay, as the consolidated tax payor, such taxes for the Borrower and its Subsidiaries, it being agreed that if such dividends and distributions are paid to Holdings and Holdings does not make such consolidated tax payments on the date when the Borrower and its subsidiaries are required to pay such taxes, such failure shall be an Event of Default that shall continue until all such taxes are paid, (ii)Β fees and expenses related to any public offering or private placement of equity securities of Holdings that is not consummated and maintaining the corporate existence of the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets, (iii)Β other fees and expenses in connection with the maintenance of its existence and its ownership of the Borrower, and (iv)Β after the earlier of the one-year anniversary of the Closing Date and the date on which no Bridge Financing remains outstanding, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, in order to permit Holdings to make (A)Β payments permitted by SectionΒ 6.07(b) and (B)Β interest payments in respect of Indebtedness of Holdings permitted by SectionΒ 6.09(b) (other than Guarantees of Indebtedness of the Borrower or any of its Subsidiaries);
(c) the Borrower may declare and pay dividends or make other distributions to Holdings in order to enable Holdings may purchase or redeem Equity Interests of
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Holdings (including related stock appreciation rights or similar securities) held by then present or former directors, consultants, officers or employees of Holdings, the Borrower or any of the Subsidiaries or by any Plan upon such personβs death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided, that the aggregate amount of dividends for such purchases or redemptions under this SectionΒ 6.06(c) shall not exceed (i)Β in any fiscal year (A)Β $12,500,000 (plus any amounts carried over from prior years, up to $25,000,000 in the aggregate) plus (B)Β Excluded Equity Proceeds received from directors, consultants, officers or employees of Holdings, the Borrower or any Subsidiary in connection with permitted employee compensation and incentive arrangements as set forth in a certificate of a Responsible Officer of the Borrower, which, if not used in any fiscal year, may be carried forward to any fiscal calendar year, and (ii)amounts received in respect of key man life insurance policy proceeds;
(d) any person may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(e) after an applicable Bridge Financing Covenant Release, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any person may make additional dividends or other distributions in an aggregate amount with all other Dividends and other distributions made pursuant to this clause (e)Β not to exceed $35,000,000;
(f) after an applicable Bridge Financing Covenant Release, any person may make distributions to minority shareholders of any subsidiary that is acquired pursuant to a Permitted Business Acquisition pursuant to appraisal or dissentersβ rights with respect to shares of such subsidiary held by such shareholders;
(g) the Borrower may declare and pay dividends to Holdings (i)Β on the Closing Date consisting solely of the Netcentives Assets or (ii)Β from amounts received from a concurrent dividend or other distribution or other concurrent payment from the special purpose Unrestricted Subsidiary formed to own the Netcentives Assets for so long as such person remains an Unrestricted Subsidiary; provided, that no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(h) after an applicable Bridge Financing Covenant Release, the Borrower may elect to declare and pay dividends to Holdings in an amount not to exceed the Available Free Cash Flow Amount, such election to be specified as provided in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided, that (i)Β no Default or Event of Default shall have occurred and be continuing or would result therefrom and any related transactions (including, without limitation, the incurrence of any Indebtedness), and (ii)Β immediately after giving effect to the payment of such Dividend and any related transactions
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(including, without limitation, the incurrence of any Indebtedness) on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.25 to 1.0;
(i) the Borrower or any Subsidiary may make any Dividend on the Closing Date used to fund the Transactions and the fees and expenses related thereto or made in connection with the consummation of the Transactions as described in the Offering Circular (including payments made pursuant to or as contemplated by the Transaction Documents, as in effect on the Closing Date); and
(j) the Borrower or any Subsidiary may make payments of cash, or dividends, distributions or advances to allow such person to make payments of cash, in lieu of the issuance of fractional shares upon exercise of warrants or upon the conversion or exchange of Equity Interests of such person; provided, however, that the aggregate amount of such payments, dividends, distributions or advances shall not exceed $4,000,000.
SECTION 6.07. Transactions with Affiliates. (a) Sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with, any of its Affiliates, unless such transaction is (i)Β otherwise expressly permitted (or required) with such Affiliates or holders under this Agreement or (ii)Β upon terms no less favorable to the Borrower or such Subsidiary, as applicable, than would be obtained in a comparable armβs-length transaction with a person that is not an Affiliate; provided, that this clause (ii)Β shall not apply to (A)Β the payment to the Fund of the monitoring and management and transaction fees and expenses referred to in paragraph (b)Β below or fees and expenses payable on the Closing Date, (B)Β the indemnification of directors of Holdings, the Borrower or the Subsidiaries in accordance with customary practice (a) or (C)Β to the extent otherwise permitted under this Agreement (each of which shall not be prohibited by this SectionΒ 6.07), the following:
(i) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, deferred compensation agreements, stock options and stock ownership plans or similar employee benefit plans approved by the Board of Directors of Holdings;
(ii) loans or advances to employees of Holdings, the Borrower or any of the Subsidiaries in accordance with SectionΒ 6.04(e);
(iii) transactions among the Borrower and the Subsidiary Loan Parties and transactions among the Subsidiary Loan Parties;
(iv) the payment of fees and indemnities to directors, officers, employees and consultants of Holdings, the Borrower and the Subsidiaries in the ordinary course of business;
(v) the existence of, or the performance by the Borrower or any of its Subsidiaries of its obligations under the terms of, the Transaction Documents, agreements set forth on Schedule 6.07 and any amendment thereto or similar agreements which it may enter into thereafter; provided, however, that the existence of, or the performance by
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the Borrower or any of its Subsidiaries of its obligations under, any future amendment to any such existing agreement or under any similar agreement entered into after the Closing Date shall only be permitted by this clause (v)Β to the extent that the terms of any such existing agreement together with all amendments thereto, taken as a whole, or new agreement are not otherwise more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Closing Date;
(vi) transactions to effect the Transactions and the payment of all fees and expenses related to the Transactions, as described herein or contemplated by the Transaction Documents;
(vii) any employment agreements entered into by Holdings, the Borrower or any of the Subsidiaries in the ordinary course of business;
(viii) transactions permitted under SectionΒ 6.05;
(ix) transactions permitted by, and complying with the provisions of, SectionΒ 6.06;
(x) any purchase by the Permitted Holders or any director, officer, employee or consultant of the Borrower or Holdings of Equity Interests of Holdings or any contribution by Holdings to, or purchases of, equity capital of the Borrower; provided that any Equity Interests of the Borrower shall be pledged to the Administrative Agent on behalf of the Lenders pursuant to the Guarantee and Collateral Agreement;
(xi) provided no Default or Event of Default shall have occurred and be continuing or would result therefrom, payments by Holdings, the Borrower or any of the Subsidiaries to the Fund or any Fund Affiliate made for any customary financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the majority of the Board of Directors of Holdings, in good faith;
(xii) payments or loans (or cancellation of loans) to employees or consultants that are (A)Β approved by a majority of the Board of Directors or the managing member of the Borrower in good faith, (B)Β made in compliance with applicable law and (C)Β otherwise permitted under this Agreement;
(xiii) transactions with Wholly Owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business in a manner consistent with past practice;
(xiv) any transaction in respect of which the Borrower delivers to the Administrative Agent (for delivery to the Lenders) a letter addressed to the Board of Directors of the Borrower and Holdings from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is (A)Β in the good faith determination of the Borrower qualified to render such letter and (B)Β reasonably satisfactory to the Administrative Agent, which letter states that such transaction is on
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terms that are no less favorable to the Borrower or such Subsidiary, as applicable, than would be obtained in a comparable armβs-length transaction with a person that is not an Affiliate;
(xv) subject to paragraph (b)Β below, the payment of all fees, expenses, bonuses and awards related to the Transactions and expressly required by the Purchase Agreement and the payment of any fees to the Fund or any Fund Affiliate to the extent contemplated by the Offering Circular on the Closing Date and thereafter, as otherwise permitted by SectionΒ 6.07(b);
(xvi) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to the Borrower or the Subsidiaries;
(xvii) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business and in a manner consistent with past practice;
(xviii) transactions permitted by, and complying with, the provisions of SectionΒ 6.05;
(xix) transactions between Holdings, the Borrower or any of its Subsidiaries and any person that is an Affiliate solely by virtue of having a director who is also a director of Holdings, the Borrower or any direct or indirect parent company of the Borrower, provided, however, that such director abstains from voting as a director of Holdings or the Borrower or such direct or indirect parent company, as the case may be, on any matter involving such other person;
(xx) intercompany transactions for the purpose of improving the consolidated tax efficiency of the Borrower and the Subsidiaries;
(xxi) the termination of management agreements and payments in connection therewith at the net present value of future payments;
(xxii) transactions among Subsidiaries that are not otherwise prohibited under this Agreement;
(xxiii) entering into tax sharing agreements or arrangements approved by the Board of Directors of Holdings or the Borrower;
(xxiv) any agreements or arrangements between a third party and an Affiliate of the Borrower that are acquired or assumed by the Borrower or any Subsidiary in connection with an acquisition or merger of such third party (or assets of such third party) by or with the Borrower or any Subsidiary; provided, that (A)Β such acquisition or merger is permitted under this Agreement and (B)Β such agreements or arrangements are not entered into in contemplation of such acquisition or merger or otherwise for the purpose of avoiding the restrictions imposed by this SectionΒ 6.07; and
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(xxv) any contribution to the capital of the Borrower by Holdings.
(b) Make any payment of or on account of monitoring or management or similar fees payable to the Fund or any Fund Affiliate unless no Default or Event of Default has occurred and is continuing and the aggregate amount of such payments in any fiscal year does not exceed the sum of (i)Β the lesser of (x)Β $3,000,000 and (y)Β 2% of EBITDA of the Borrower and the Subsidiaries on a consolidated basis for the immediately preceding fiscal year, plus (ii)Β any deferred fees, plus (iii)Β after an applicable Bridge Financing Covenant Release, 2% of the value of transactions with respect to which the Fund or any Fund Affiliate provides any transaction, advisory or other services; provided, that this SectionΒ 6.07(b) shall not restrict the payment of any fees to the Fund or any Fund Affiliate on the Closing Date to the extent contemplated by the Offering Circular.
SECTION 6.08. Business of Holdings, the Borrower and the Subsidiaries. Notwithstanding any other provisions hereof, engage at any time in any business or business activity other than:
(a) in the case of the Borrower and any Material Subsidiary, (i)Β any business or business activity conducted by any of them on the Closing Date and any business or business activities incidental or related thereto, (ii)Β any business or business activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto, including the consummation of the Transactions, (iii)Β any business or business activity that the senior management of the Borrower deems beneficial for the Borrower or such Subsidiary, (iv)Β any business or business activity of any person acquired pursuant to a Permitted Business Acquisition or (v)Β the formation and maintenance of one or more Banking Subsidiaries; and
(b) in the case of Holdings, (i)Β ownership of the Equity Interests in the Borrower and Equity Interests of a special purpose person formed to own the Netcentives Assets, together with activities directly related thereto, and (A)Β Holdings shall own no assets other than such Equity Interests and its books and records and (B)Β Holdings shall not xxxxx x Xxxx on any of its assets other than pursuant to the Loan Documents, (ii)Β performance of its obligations under and in connection with the Loan Documents, the Purchase Agreement and the other agreements contemplated by the Purchase Agreement, and any Indebtedness permitted to be incurred by Holdings, and Holdings shall incur no other obligations (including Indebtedness) or liabilities other than (A)Β obligations under the Loan Documents, (B)Β Indebtedness that is not guaranteed by any Subsidiary, unless such Subsidiary is otherwise permitted to Guarantee such Indebtedness under SectionΒ 6.01 (it being understood that Indebtedness includes Guarantees of Indebtedness), so long as (v)Β immediately after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Consolidated Leverage Ratio shall not exceed 7.25 to 1.00, (w)Β at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (x)Β such Indebtedness may include Guarantees of Indebtedness of the Borrower and its Subsidiaries permitted under SectionΒ 6.01 (including the Bridge Financing) other than the Senior Notes, Senior Subordinated Notes, any Permitted Subordinated Financing and any Permitted Senior Financing, so long as such Guarantees are unsecured and do not contain
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any covenants other than affirmative corporate maintenance covenants, (y)Β a Responsible Officer of Holdings shall have delivered an officerβs certificate demonstrating the calculation of the Leverage Ratio in form and detail reasonably satisfactory to the Administrative Agent), and (z)Β if the Bridge Financing shall then be outstanding, the net proceeds thereof shall be contributed in cash as common equity to the Borrower and applied by the Borrower to repay the Bridge Financing, and (C)Β Permitted Refinancing Indebtedness in respect of the foregoing, and other customary obligations incidental to its existence and ownership of the Equity Interests in the Borrower (including, without limitation, Guarantees of obligations (other than Indebtedness for borrowed money) of the Borrower and the Subsidiary Loan Parties in the ordinary course of the operation of the Borrowerβs or such Subsidiary Loan Partyβs business, to the extent such Guarantee is also given in the ordinary course of business), (iii)Β issuance of Equity Interests, (iv)Β activities in connection with the ownership of the Equity Interests of a special purpose person formed to own the Netcentives Assets, including the sale or disposition thereof and (v)Β as otherwise required by law.
SECTION 6.09. Limitation on Modifications and Payments of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc. (a) Amend or modify in any manner materially adverse to the Lenders the articles or certificate of incorporation or by-laws or limited liability company operating agreement or other organizational documents of the Borrower or any of the Subsidiaries or amend or modify in any manner materially adverse to the Lenders, or grant any waiver or release under or terminate in any manner if such granting or termination shall be materially adverse to the Lenders, the Purchase Agreement.
(b) (i) Make, or agree or offer to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on the Bridge Financing, the Senior Subordinated Notes or any Permitted Subordinated Indebtedness (or any Permitted Refinancing Indebtedness in respect thereof) or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the Senior Subordinated Notes or any Permitted Subordinated Indebtedness (or any Permitted Refinancing Indebtedness in respect thereof), except for (A)Β Refinancings with Permitted Refinancing Indebtedness in respect thereof permitted by Sections 6.01(j), 6.01(s) and (t), (B)Β payments of regularly scheduled interest, other than payments in respect of the Bridge Financing, the Senior Subordinated Notes or Permitted Subordinated Indebtedness (or any Permitted Refinancing Indebtedness in respect thereof) prohibited by the subordination provisions thereof and (C)Β to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof; provided, however, that Holdings or the Borrower may at any time and from time to time repay, repurchase, redeem, acquire, cancel or terminate all or any portion of the Bridge Financing, the Senior Subordinated Notes or any Permitted Subordinated Indebtedness (or any Permitted Refinancing Indebtedness in respect thereof) without duplication, (u)Β in the case of the Bridge Financing, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, with the net proceeds of the Senior Subordinated Notes or any Permitted Subordinated Indebtedness and with the net proceeds of any Senior Notes issued after the Closing Date in an amount not to exceed $34,000,000, (v)Β with the net proceeds of any Indebtedness permitted to be incurred by Holdings pursuant to SectionΒ 6.08(b), which
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have been contributed in cash as common equity to the Borrower, (w)Β with Excluded Equity Proceeds not otherwise used for any other purpose, as set forth in a certificate of a Responsible Officer of the Borrower, (x)Β through the exchange of Equity Interests of Holdings, (y)Β in an aggregate amount not to exceed the Available Free Cash Flow Basket Amount on the date of such election as elected by the Borrower to be applied pursuant to this clause (b)(i), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied, and (z)Β so long as no Default or Event of Default has occurred and is continuing or would result therefrom and, immediately after giving effect thereto on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.00 to 1.00, with the Net Proceeds of any Subsidiary Spin-off to the extent not applied to repay Loans in accordance with SectionΒ 2.11(a); provided, further, that, with respect to this clause (b)(i), (1)Β at the time of such repayment, repurchase, redemption, acquisition, cancellation or termination and after giving effect thereto and to any borrowing in connection therewith, the Consolidated Leverage Ratio on a Pro Forma Basis does not exceed 3.50:1.00 (such ratio shall not be required to be satisfied in connection with any repayment of the Bridge Financing as contemplated by clauses (A), (C)(u), (C)(v), (C)(w) and (C)(x))) and no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (2)Β if any Bridge Financing is then outstanding, Holdings or the Borrower may not repay, repurchase, redeem, acquire, cancel or terminate all or any portion of the Senior Notes and Holdings and the Borrower shall first repay the Bridge Financing in full before it, directly or indirectly, repays, repurchases, redeems, acquires, cancels or terminates all or any portion of the Senior Notes, any Permitted Senior Indebtedness, the Senior Subordinated Notes or any Permitted Subordinated Indebtedness (or any Permitted Refinancing Indebtedness in respect thereof).
(i) Amend or modify, or permit the amendment or modification of, any provision of the Bridge Financing Documents, the Senior Notes Documents, the Senior Subordinated Notes Documents and any documentation governing any Permitted Subordinated Indebtedness and any Permitted Senior Indebtedness (including any Permitted Refinancing Indebtedness in respect thereof), the Seller Preferred Equity, or any agreement (including any document relating to the Seller Preferred Equity) relating thereto, other than amendments or modifications that (A)Β are not in any manner materially adverse to Lenders and that do not affect the subordination provisions thereof (if any) in a manner adverse to the Lenders or (B)Β otherwise comply with the definition of βPermitted Refinancing Indebtedness.β
(c) Enter into any agreement or instrument that by its terms restricts (i)Β the payment of dividends or distributions or the making of cash advances by any Material Subsidiary to the Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii)Β the granting of Liens by Holdings, the Borrower or any Loan Party, or any Subsidiary required to be a Loan Party, pursuant to the Security Documents, in each case, other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:
(A) (i) restrictions imposed by applicable law, (ii)Β restrictions on the payment of dividends and distributions and the making of cash advances, contractual or otherwise, imposed on Banking Subsidiaries and Insurance Subsidiaries, and (iii)Β restrictions on the pledge of the direct Equity Interests of Banking Subsidiaries and Insurance Subsidiaries under applicable laws;
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(B) other than with respect to Holdings, contractual encumbrances or restrictions (1)Β in effect on the Closing Date with respect to Liens permitted under SectionΒ 6.02(a) or as otherwise disclosed on Schedule 6.09(c), (2)Β on the granting of Liens pursuant to the Bridge Financing Documents, the Senior Notes Documents, the Senior Subordinated Notes Documents and any documentation governing any Permitted Subordinated Indebtedness and any Permitted Senior Indebtedness (including any Permitted Refinancing Indebtedness in respect thereof) incurred in compliance with SectionΒ 6.01, in each case, no less favorable to the Lenders than those restrictions set forth in the Senior Notes Indenture and the Senior Subordinated Notes Indenture on the Closing Date, or (3)Β pursuant to documentation related to any permitted renewal, extension or refinancing of any Indebtedness existing on the Closing Date that does not expand the scope of any such encumbrance or restriction or make such restriction more onerous;
(C) any restriction on the Equity Interests or assets of a Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of such Equity Interests or assets permitted under SectionΒ 6.05 pending the closing of such sale or disposition;
(D) customary provisions in joint venture agreements and other similar agreements applicable to the assets of, or the Equity Interests in, joint ventures entered into in the ordinary course of business;
(E) other than with respect to Holdings, any restrictions imposed by any agreement relating to Indebtedness permitted by SectionΒ 6.01 and secured by a Lien permitted by SectionΒ 6.02 to secure such Indebtedness to the extent that such restrictions apply only to the property or assets securing such Indebtedness;
(F) customary provisions contained in leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;
(G) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(H) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(I) customary restrictions and conditions contained in any agreement relating to the sale of any asset permitted under SectionΒ 6.05 applicable to the asset to be sold pending the consummation of such sale;
(J) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(K) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business that impose restrictions on the property subject to such lease; or
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(L) any agreement in effect at the time such subsidiary becomes a Subsidiary, so long as such agreement was not entered into in contemplation of such person becoming a Subsidiary and such restriction does not apply to the Borrower or any other Material Subsidiary or any of their respective assets.
SECTION 6.10. Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio on the last day of any fiscal quarter during any period set forth below to exceed the ratio set forth opposite such period:
Β
Period |
Β Β | Ratio |
Closing Date through SeptemberΒ 30, 2006 | Β Β | 7.50Β toΒ 1.00 |
OctoberΒ 1, 2006 through DecemberΒ 31, 2006 | Β Β | 7.25 to 1.00 |
JanuaryΒ 1, 2007 through MarchΒ 31, 2007 | Β Β | 7.00 to 1.00 |
AprilΒ 1, 2007 through JuneΒ 30, 2007 | Β Β | 6.75 to 1.00 |
JulyΒ 1, 2007 through JuneΒ 30, 2008 | Β Β | 6.50 to 1.00 |
JulyΒ 1, 2008 through JuneΒ 30, 2009 | Β Β | 6.00 to 1.00 |
JulyΒ 1, 2009 through JuneΒ 30, 2010 | Β Β | 5.25 to 1.00 |
JulyΒ 1, 2010 through JuneΒ 30, 2011 | Β Β | 4.75Β toΒ 1.00 |
JulyΒ 1, 2011 and thereafter | Β Β | 4.50 to 1.00 |
SECTION 6.11. Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the end of any fiscal quarter ending during any period set forth below to be less than the ratio set forth below opposite such period:
Β
Period |
Β Β | Ratio |
Closing Date through MarchΒ 31, 2007 |
Β Β | 1.45Β toΒ 1.00 |
AprilΒ 1, 2007 through JuneΒ 30, 2007 |
Β Β | 1.50 to 1.00 |
JulyΒ 1, 2007 through SeptemberΒ 30, 2007 |
Β Β | 1.55 to 1.00 |
OctoberΒ 1, 2007 through JuneΒ 30, 2008 |
Β Β | 1.60 to 1.00 |
JulyΒ 1, 2008 through JuneΒ 30, 2009 |
Β Β | 1.75 to 1.00 |
JulyΒ 1, 2009 through JuneΒ 30, 2010 |
Β Β | 1.90 to 1.00 |
JulyΒ 1, 2010 through JuneΒ 30, 2011 |
Β Β | 2.10 to 1.00 |
JulyΒ 1, 2011 and thereafter |
Β Β | 2.25 to 1.00 |
SECTION 6.12. Swap Agreements. Enter into any Swap Agreement other than (a)Β Swap Agreements entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities (including currency risks), and (b)Β Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Holdings, the Borrower or any Subsidiary.
SECTION 6.13. Designated Senior Debt. Designate any other Indebtedness as βDesignated Senior Debtβ (or the equivalent thereof) under the Bridge Loan Agreement, the
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Senior Subordinated Notes Indenture or under the documentation governing any Permitted Subordinated Indebtedness, including any Permitted Refinancing Indebtedness in respect of the Senior Subordinated Notes or such Permitted Subordinated Indebtedness.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. In case of the happening of any of the following events (βEvents of Defaultβ):
(a) any representation or warranty made or deemed made by the Borrower or any other Loan Party in any Loan Document, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished by the Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any Loan or the reimbursement with respect to any L/C Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or on any L/C Disbursement or in the payment of any Fee or any other amount (other than an amount referred to in paragraph (b)Β above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;
(d) any default shall be made in the due observance or performance by the Borrower of any covenant or agreement contained in SectionΒ 5.01(a) (with respect to the Borrower), 5.05(a), 5.09 or in Article VI;
(e) default shall be made in the due observance or performance by the Borrower or any Subsidiary Loan Party of any covenant or agreement contained in any Loan Document (other than those specified in paragraphs (b), (c)Β and (d)Β above) and such default shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower;
(f) (i) any event or condition occurs that (a)Β results in any Material Indebtedness becoming due prior to its scheduled maturity or (b)Β enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii)Β Holdings, the Borrower or any Subsidiary shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof; provided, that this clause (f)Β shall not apply to secured Indebtedness that
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becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i)Β relief in respect of Holdings, the Borrower or any of its subsidiaries, or of a substantial part of the property or assets of Holdings, the Borrower or any of its subsidiaries, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, moratorium, insolvency, receivership or similar law, (ii)Β the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any of its subsidiaries or for a substantial part of the property or assets of Holdings, the Borrower or any of its subsidiaries or (iii)Β the winding-up or liquidation of Holdings, the Borrower or any of its subsidiaries (except, in the case of any subsidiary, in a transaction permitted by SectionΒ 6.05); and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) Holdings, the Borrower or any of its subsidiaries shall (i)Β voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, moratorium, insolvency, receivership or similar law, (ii)Β consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (h)Β above, (iii)Β apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any of its subsidiaries or for a substantial part of the property or assets of Holdings, the Borrower or any of its subsidiaries, (iv)Β file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v)Β make a general assignment for the benefit of creditors or (vi)Β become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(j) the failure by Holdings, the Borrower or any Subsidiary Loan Party or any Material Subsidiary to pay one or more final judgments aggregating in excess of $30,000,000, which judgments are not discharged or effectively waived or stayed for a period of 30 consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of Holdings, the Borrower or any Subsidiary to enforce any such judgment;
(k) (i) an ERISA Event shall have occurred, (ii)Β a trustee shall be appointed by a United States district court to administer any Plan, (iii)Β the Borrower, a Subsidiary or any ERISA Affiliate shall engage in any non-exempt βprohibited transactionβ (as defined in SectionΒ 406 of ERISA or SectionΒ 4975 of the Code) involving any Plan or (iv)Β any other event or condition shall occur or exist with respect to a Plan or a Multiemployer Plan; and in each case in clauses (i)Β through (iv)Β above, such event or condition, together
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with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect;
(l) (i) any Loan Document shall for any reason be asserted in writing by Holdings, the Borrower or any Subsidiary Loan Party (or, in the case of any Security Document with respect to the pledge of Equity Interests of the Borrower, the pledgor thereunder) not to be a legal, valid and binding obligation of any party thereto, (ii)Β any security interest purported to be created by any Security Document and to extend to assets that are not immaterial to the Borrower and the Subsidiary Loan Parties on a consolidated basis or the Equity Interests of the Borrower, shall cease to be, or shall be asserted in writing by the Borrower or any other Loan Party (or, in the case of any Security Document with respect to the pledge of Equity Interests of the Borrower, the pledgor thereunder) not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application thereof, or from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Guarantee and Collateral Agreement or to file Uniform Commercial Code continuation statements or take the actions described on Schedule 3.04 and except to the extent that such loss is covered by a lenderβs title insurance policy and the Administrative Agent shall be reasonably satisfied with the credit of such insurer, or (iii)Β the Guarantees pursuant to the Security Documents by Holdings, the Borrower or any material Subsidiary Loan Parties of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by Holdings the Borrower or any Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations;
(m) the Obligations shall fail to constitute βSenior Debtβ (or the equivalent thereof) and βDesignated Senior Debtβ (or the equivalent thereof) under the Bridge Loan Agreement, the Senior Subordinated Notes Indenture and under the documentation governing any Permitted Subordinated Indebtedness, including any Permitted Refinancing Indebtedness in respect of the Senior Subordinated Notes or such Permitted Subordinated Indebtedness;
then, and in every such event (other than an event with respect to the Borrower described in paragraph (h) or (i) above), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans then outstanding so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any
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other Loan Document to the contrary notwithstanding and (iii)Β demand cash collateral pursuant to SectionΒ 2.05(j); and in any event with respect to the Borrower described in paragraph (h)Β or (i)Β above, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable and the Administrative Agent shall be deemed to have made a demand for cash collateral to the full extent permitted under SectionΒ 2.05(j), without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.
SECTION 7.02. Exclusion of Certain Subsidiaries. Solely for the purposes of determining whether an Event of Default has occurred under clause (h), (i)Β or (j)Β of SectionΒ 7.01, any reference in any such clause to any subsidiary shall be deemed not to include any Immaterial Subsidiary affected by any event or circumstance referred to in any such clause.
SECTION 7.03. Right to Cure. (a) Notwithstanding anything to the contrary contained in SectionΒ 7.01, in the event that the Borrower fails to comply with the requirements of the covenants set forth in SectionΒ 6.10 or 6.11, until the expiration of the 10th day subsequent to the date the certificate calculating the covenants set forth in Sections 6.10 and 6.11 is required to be delivered pursuant to SectionΒ 5.04(c), Holdings shall have the right to issue Permitted Cure Securities for cash or otherwise receive cash contributions to its capital, and, in each case with respect to Holdings, to contribute any such cash to the capital of the Borrower (collectively, the βCure Rightβ), and upon the receipt by the Borrower of such cash (the βCure Amountβ) pursuant to the exercise by Holdings or the Borrower of such Cure Right, the calculation of EBITDA as used in the covenants set forth in Sections 6.10 and 6.11 shall be recalculated giving effect to the following pro forma adjustments:
(i) EBITDA shall be increased, solely for the purpose of measuring the covenants set forth in Sections 6.10 and 6.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount; and
(ii) If, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of the covenants set forth in Sections 6.10 and 6.11, the Borrower shall be deemed to have satisfied the requirements of the covenants set forth in Sections 6.10 and 6.11 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the covenants set forth in Sections 6.10 and 6.11 that had occurred shall be deemed cured for the purposes of this Agreement.
(b) Notwithstanding anything herein to the contrary, (i)Β in each four-fiscal-quarter period there shall be at least one fiscal quarter in which the Cure Right is not exercised, (ii)Β in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised and (iii)Β for purposes of this SectionΒ 7.03, the Cure Amount utilized shall be no greater than the amount required for purposes of complying with the covenants set forth in SectionΒ 6.10 and 6.11.
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ARTICLE VIII
The Agents
SECTION 8.01. Appointment. (a) Each Lender (in its capacities as a Lender, the Swingline Lender (if applicable), an Issuing Bank (if applicable) and on behalf of itself and its Affiliates as potential counterparties to Swap Agreements) hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lenderβs or Issuing Bankβs behalf. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
(b) In furtherance of the foregoing, each Lender (in its capacities as a Lender, the Swingline Lender (if applicable), an Issuing Bank (if applicable) and on behalf of itself and its Affiliates as potential counterparties to Swap Agreements) hereby appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent (and any Subagents appointed by the Administrative Agent pursuant to SectionΒ 8.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights or remedies thereunder at the direction of the Administrative Agent) shall be entitled to the benefits of this Article VIII (including, without limitation, SectionΒ 8.07) as though the Administrative Agent (and any such Subagents) were an βAgentβ under the Loan Documents, as if set forth in full herein with respect thereto.
SECTION 8.02. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent may also from time to time, when the Administrative Agent deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact (each, a βSubagentβ) with respect to all or any part of the Collateral; provided, however, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent
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expressly authorized in writing by the Administrative Agent. Should any instrument in writing from the Borrower or any other Loan Party be required by any Subagent so appointed by the Administrative Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. If any Subagent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Administrative Agent until the appointment of a new Subagent. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects in accordance with the foregoing provisions of this SectionΒ 8.02 in the absence of the Administrative Agentβs gross negligence or willful misconduct.
SECTION 8.03. Exculpatory Provisions. Neither any Agent or its Affiliates nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i)Β liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such personβs own gross negligence or willful misconduct) or (ii)Β responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party.
SECTION 8.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including counsel to Holdings or the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all or other Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all or other
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Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
SECTION 8.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received notice from a Lender, Holdings or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a βnotice of default.β In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all or other Lenders); provided, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
SECTION 8.06. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 8.07. Indemnification. The Lenders agree to indemnify each Agent and each Issuing Bank in its capacity as such (to the extent not reimbursed by Holdings or the Borrower and without limiting the obligation of Holdings or the Borrower to do so), in the amount of its pro rata share (based on its aggregate Revolving Facility Exposure, outstanding Term Loans and unused Commitments hereunder; provided that the aggregate principal amount of Swingline Loans owing to the Swingline Lender and of L/C Disbursements owing to any Issuing Bank shall be considered to be owed to the Revolving Facility Lenders ratably in
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accordance with their respective Revolving Facility Exposure), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent or such Issuing Bank in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent or such Issuing Bank under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agentβs or such Issuing Bankβs gross negligence or willful misconduct. The failure of any Lender to reimburse any Agent or any Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent or such Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent or such Issuing Bank, as the case may be, for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent or such Issuing Bank, as the case may be, for such other Lenderβs ratable share of such amount. The agreements in this Section shall survive the payment of the Loans and all other amounts payable hereunder.
SECTION 8.08. Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from, and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued, or Letter of Credit or Swingline Loan participated in, by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms βLenderβ and βLendersβ shall include each Agent in its individual capacity.
SECTION 8.09. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 daysβ notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under SectionΒ 7.01(b), (c), (h)Β or (i)Β shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term βAdministrative Agentβ shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agentβs rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 10 days following a retiring Administrative Agentβs notice of resignation, the retiring Administrative Agentβs resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any retiring Administrative Agentβs resignation as Administrative Agent, the provisions of
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this SectionΒ 8.09 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
SECTION 8.10. Agents and Arrangers. None of the Agents or the Joint Lead Arrangers shall have any duties or responsibilities hereunder in its capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) 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 telecopy, as follows:
(i) if to any Loan Party, to it at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxxx 00000, Attention: Chief Executive Officer, with a copy to Apollo Investment Fund V, L.P., 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx;
(ii) if to the Administrative Agent, to Credit Suisse, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx XxxxΒ 00000, Attention: Xxxx Xxxxxxx (telecopy 212-325-8304) (e-mail: xxxx.xxxxxxx.0@xxxx.xxx); and
(iii) if to an Issuing Bank, to it at the address or telecopy number set forth separately in writing.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided, that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent and 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, further that approval of such procedures may be limited to particular notices or communications.
(c) All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b)Β above) electronic means or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this SectionΒ 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this SectionΒ 9.01.
(d) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Borrower and the other Loan Parties herein, in the
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other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and each Issuing Bank and shall survive the making by the Lenders of the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of Credit, regardless of any investigation made by such persons or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or L/C Disbursement or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not been terminated. Without prejudice to the survival of any other agreements contained herein, indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the payment in full of the principal and interest hereunder, the expiration of the Letters of Credit and the termination of the Commitments or this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent shall have received copies hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of Holdings, the Borrower, each Issuing Bank, the Administrative Agent and each Lender and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)Β the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder (other than pursuant to a merger permitted by SectionΒ 6.05(b) or (i)Β without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii)Β no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section or Article X. 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 (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c)Β of this Section), and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement or the other Loan Documents.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (each, an βAssigneeβ) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent of:
(A) the Borrower (such consent not to be unreasonably withheld); provided, that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other person or in connection with the initial syndication of the Loans; provided, that any liability of the Borrower to an assignee that is an
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Approved Fund or affiliate of the assigning Lender under SectionΒ 2.15 or 2.17 shall be limited to the amount, if any, that would have been payable hereunder by the Borrower in the absence of such assignment;
(B) the Administrative Agent; provided, that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the Swingline Lender and the Issuing Bank; provided, that the consent of the Issuing Bank shall not be required if such assignment is an assignment under the Term Facility.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lenderβs Commitments or Loans, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the trade date specified in the Assignment and Acceptance with respect to such assignment or, if no trade date is so specified, as of the date such Assignment and Acceptance is delivered to the Administrative Agent) shall not be less than (x)Β $1,000,000 in respect of Term Loans; provided that simultaneous assignments to or by two or more Related Funds shall be treated as one assignment for purposes of the minimum assignment requirement, and shall be in an amount that is an integral multiple of $1,000,000 (or the entire remaining amount of such Lenderβs Commitment) and (y)Β $5,000,000 in respect of the Revolving Facility Loans, unless each of the Borrower and the Administrative Agent otherwise consent;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (which may be waived or reduced at the Administrative Agentβs sole discretion); provided, that (i)Β assignments pursuant to SectionΒ 2.19 shall not require the signature of the assigning Lender to become effective and (ii)Β any such processing and recordation fee in connection with assignments pursuant to SectionΒ 2.19 shall be paid by the Borrower or the assignee; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any tax forms.
For the purposes of this SectionΒ 9.04, βApproved Fundβ means any person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a)Β a Lender, (b)Β an Affiliate of a Lender or (c)Β an entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such
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Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this SectionΒ 9.04 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 paragraph (c)Β of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices outside the United Kingdom a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Exposure owing to each Lender pursuant to the terms hereof from time to time (the βRegisterβ). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank 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, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Assignee, the Assigneeβs completed Administrative Questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)Β of this Section and any written consent to such assignment required by paragraph (b)Β of this Section, the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a βParticipantβ) in all or a portion of such Lenderβs rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided, that (a)Β such Lenderβs obligations under this Agreement shall remain unchanged, (b)Β such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (c)Β the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenderβs rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided, that (x)Β such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1)Β requires the consent of each Lender directly affected thereby pursuant to SectionΒ 9.04(a)(i) or clause (i), (ii), (iii), (iv), (v)Β or (vi)Β of the first proviso to SectionΒ 9.08(b) and (2)Β directly affects such Participant and (y)Β no other agreement with respect to such
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Participant may exist between such Lender and such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)Β of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of SectionΒ 9.06 as though it were a Lender; provided, that such Participant shall be subject to SectionΒ 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under SectionΒ 2.15, 2.16 or 2.17 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 Borrowerβs prior written consent.
(d) Any Lender may, without the consent of the Administrative Agent or the Borrower, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank and in the case of any Lender that is a Fund, any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender, including to any trustee for, or any other representative of, such holders, and this Section shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, at its expense and upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (d)Β above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in SectionΒ 9.04(b). Each of Holdings, the Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto and each Loan Party for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
(g) Notwithstanding the foregoing, no assignment may be made or participation sold to an Ineligible Institution without the prior written consent of the Borrower. Upon the request of any Lender, the Administrative Agent shall inform such Lender as to whether an actual proposed Participant or Assignee is an Ineligible Institution.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the
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Administrative Agent in connection with the syndication of the Commitments or the administration of this Agreement (including expenses incurred in connection with due diligence, reasonable fees, disbursements and the charges for no more than one counsel in each jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof or incurred by the Administrative Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the reasonable fees, charges and disbursements of ShearmanΒ & Sterling LLP, counsel for the Administrative Agent and the Joint Lead Arrangers, and, in connection with any such enforcement or protection, the reasonable fees, charges and disbursements of any other counsel.
(b) The Borrower agrees to indemnify the Administrative Agent, the Joint Lead Arrangers, each Issuing Bank, each Lender, their respective Affiliates and each of their respective directors, trustees, officers, employees and agents (each such person being called an βIndemniteeβ) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related costs and expenses, including reasonable counsel fees, charges and disbursements (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i)Β the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii)Β the use of the proceeds of the Loans or the use of any Letter of Credit or (iii)Β any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, and regardless of whether any of the foregoing is raised or initiated by a third party or Holdings, the Borrower or any other Loan Party or any Subsidiary; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted primarily from the gross negligence or willful misconduct of such Indemnitee (for purposes of this SectionΒ 9.05(b) only, each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall, together with its respective Related Parties, be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related costs and expenses, including reasonable counsel or consultant fees, charges and disbursements (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with or as a result of (a)Β any claim or liability related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (b)Β any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property currently or formerly owned, leased or operated by any predecessor of Holdings, the Borrower or any of their Subsidiaries; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties. The provisions of this SectionΒ 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated
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hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this SectionΒ 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in SectionΒ 9.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to SectionΒ 2.17, this SectionΒ 9.05 shall not apply to Taxes.
SECTION 9.06. Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to time, 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 and other indebtedness at any time owing by such Lender or such Issuing Bank to or for the credit or the account of Holdings, the Borrower or any other Subsidiary against any of and all the obligations of Holdings or the Borrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured. The rights of each Lender and each Issuing Bank under this SectionΒ 9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)Β below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, the Borrower or any other Loan Party in any case shall entitle such person to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except as provided in Section 2.20, or (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrower and the Required Lenders and (y) in the case of any other Loan
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Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend, waive or reduce the amount of any scheduled installment of principal or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of SectionΒ 2.18(b) or (c)Β in a manner that would by its terms alter the pro rata sharing of payments required thereby, or require any Lender to make available Interest Periods longer than six months without its consent, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the term βRequired Lendersβ or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date),
(vi) release all or substantially all the Collateral or release any of Holdings, the Borrower or any other Subsidiary Loan Party from its Guarantee under the Guarantee and Collateral Agreement unless, in the case a Subsidiary Loan Party, all or substantially all of the Equity Interests of such Subsidiary Loan Party are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender,
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Tranche differently from those of Lenders participating in another Tranche, without the consent of the Majority Lenders participating in the adversely affected Tranche (it being
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agreed that the Required Lenders may waive, in whole or in part, any prepayment required by SectionΒ 2.11 so long as the application of any prepayment still required to be made is not changed),
(viii) effect any waiver, amendment or modification of SectionΒ 5.02 of the Guarantee and Collateral Agreement, or any comparable provision of any other Security Document, in a manner that materially adversely affects the rights in respect of payments or collateral of Lenders, without the consent of each Lender so affected;
provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or an Issuing Bank hereunder without the prior written consent of the Administrative Agent or such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this SectionΒ 9.08 and any consent by any Lender pursuant to this SectionΒ 9.08 shall bind any Assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agents or any Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Subject to the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (a)Β to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b)Β to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent to the extent necessary to integrate any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the βChargesβ), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the βMaximum Rateβ) that may be contracted for, charged, taken, received or
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reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender or such Issuing Bank, shall be limited to the Maximum Rate; provided, that such excess amount shall be paid to such Lender or such Issuing Bank on subsequent payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. No Liability of the Issuing Banks. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither any Issuing Bank nor any of its officers or directors shall be liable or responsible for: (a)Β the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b)Β the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c)Β payment by such Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d)Β any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Borrower shall have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i)Β such Issuing Bankβs willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court of competent jurisdiction in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii)Β such Issuing Bankβs willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
SECTION 9.11. Entire Agreement. This Agreement, the other Loan Documents and the agreements regarding certain Fees referred to herein constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Fee Letter dated as of JulyΒ 26, 2005, shall survive the execution and delivery of this Agreement and remain in full force and effect.
SECTION 9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
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AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
SECTION 9.13. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in SectionΒ 9.03. Delivery of an executed counterpart to this Agreement by facsimile (or other electronic) transmission pursuant to procedures approved by the Administrative Agent shall be as effective as delivery of a manually signed original.
SECTION 9.15. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 9.16. Jurisdiction; Consent to Service of Process. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any Lender or any Issuing Bank may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against Holdings, the Borrower or any other Loan Party or their properties in the courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 9.17. Confidentiality. Each of the Lenders, each Issuing Bank and each of the Agents agrees that it shall maintain in confidence any information relating to
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Holdings, the Borrower and the other Loan Parties furnished to it by or on behalf of Holdings, the Borrower or the other Loan Parties (other than information that (a)Β has become generally available to the public other than as a result of a disclosure by such party, (b)Β has been independently developed by such Lender, such Issuing Bank or such Agent without violating this SectionΒ 9.17 or (c)Β was available to such Lender, such Issuing Bank or such Agent from a third party having, to such personβs knowledge, no obligations of confidentiality to Holdings, the Borrower or any other Loan Party) and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with a need to know or to any person that approves or administers the Loans on behalf of such Lender (so long as each such person shall have been instructed to keep the same confidential in accordance with this SectionΒ 9.17), except: (a)Β to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority, the National Association of Insurance Commissioners or of any securities exchange on which securities of the disclosing party or any Affiliate of the disclosing party are listed or traded, (b)Β as part of normal reporting or review procedures to Governmental Authorities or the National Association of Insurance Commissioners, (c)Β to its parent companies, Affiliates or auditors (so long as each such person shall have been instructed to keep the same confidential in accordance with this SectionΒ 9.17), (d)Β in order to enforce its rights under any Loan Document in a legal proceeding, (e)Β to any prospective assignee of, or prospective Participant in, any of its rights under this Agreement (so long as such person shall have been instructed to keep the same confidential in accordance with this SectionΒ 9.17) and (f)Β to any direct or indirect contractual counterparty in Swap Agreements or such contractual counterpartyβs professional advisor (so long as such contractual counterparty or professional advisor to such contractual counterparty agrees to be bound by the provisions of this Section).
SECTION 9.18. Direct Website Communications. (a) Delivery. (i)Β Each Loan Party hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (a)Β relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (b)Β relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (c)Β provides notice of any Default or Event of Default under this Agreement or (d)Β is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non-excluded communications collectively, the βCommunicationsβ), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent. In addition, each Loan Party agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document but only to the extent requested by the Administrative Agent. Nothing in this SectionΒ 9.18 shall prejudice the right of the Agents, the Joint Lead Arrangers or any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document.
(ii) The Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its e-mail address set forth in SectionΒ 9.01 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan
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Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform (as defined below) shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (a)Β to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lenderβs e-mail address to which the foregoing notice may be sent by electronic transmission and (b)Β that the foregoing notice may be sent to such e-mail address.
(b) Posting. Each Loan Party further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system (the βPlatformβ).
(c) Platform. The Platform is provided βas isβ and βas available.β The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Communications or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including 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 Communications or the Platform. In no event shall the Administrative Agent or any of its affiliates or any of their respective officers, directors, employees, agents advisors or representatives (collectively, βAgent Partiesβ) have any liability to the Loan Parties, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise), arising out of any Loan Partyβs or the Administrative Agentβs transmission of communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Partyβs gross negligence or willful misconduct.
SECTION 9.19. Release of Liens and Guarantees. In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Equity Interests or assets of any Loan Party (other than the Equity Interests of the Borrower) to a person that is not (and is not required to become) a Loan Party in a transaction not prohibited by this Agreement, then the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative Agent to) take such action and execute any such documents as may be reasonably requested by Holdings or the Borrower and at the Borrowerβs expense to release any Liens created by any Loan Document in respect of such assets or Equity interests, and, in the case of a disposition of the Equity Interests of any Subsidiary Loan Party in a transaction not prohibited by this Agreement and as a result of which such Subsidiary Loan Party would cease to be a Subsidiary Loan Party, terminate such Subsidiary Loan Partyβs obligations or Holdingsβs obligations, as applicable, under the Guarantee and Collateral Agreement. In addition, the Administrative Agent agrees to take such actions as are reasonably requested by Holdings or the Borrower and at the Borrowerβs expense to terminate the Liens and security interests created by the Loan Documents when all the Obligations (other than contingent indemnities and expense reimbursement obligations to the extent no claim therefor has been made) are paid in full and all Letters of Credit and Commitments are terminated. Any representation, warranty or covenant contained in any Loan Document relating to any such Equity Interests, asset or subsidiary of the Borrower shall no longer be deemed to be made once such Equity Interests or asset or subsidiary is so conveyed, sold, leased, assigned, transferred or disposed of.
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SECTION 9.20. Power of Attorney. Each Lender (including the Swingline Lender) and each Issuing Bank hereby (i)Β authorizes the Administrative Agent as its agent and attorney-in-fact to execute and deliver, on behalf of and in the name of such Lender or Issuing Bank (or Affiliate), all and any Loan Documents (including Security Documents) and related documentation, (ii)Β authorizes the Administrative Agent to appoint any further agents or attorneys-in-fact to execute and deliver, or otherwise to act, on behalf of and in the name of the Administrative Agent for any such purpose and (iii)Β authorizes the Administrative Agent to delegate its powers under this power of attorney and to do any and all acts and to make and receive all declarations that are deemed necessary or appropriate to the Administrative Agent.
SECTION 9.21. U.S.A. Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the U.S.A. Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the U.S.A. Patriot Act.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first written above.
Β
AFFINION GROUP, INC. | ||||
By: | Β | /s/ Xxxxxxxxx X. Xxxxxx | ||
Β | Name: |
Β | Xxxxxxxxx X. Xxxxxx | |
Β | Title: |
Β | Chief Executive Officer |
Β
AFFINION GROUP HOLDINGS, INC. | ||||
By: | Β | /s/ Xxxxxxxxx X. Xxxxxx | ||
Β | Name: |
Β | Xxxxxxxxx X. Xxxxxx | |
Β | Title: |
Β | Chief Executive Officer |
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CREDIT SUISSE, CAYMAN ISLANDS BRANCH as Administrative Agent and as a Lender, | ||||
By: | Β | /s/ Xxxxxx Xxxx | ||
Β | Name: |
Β | Xxxxxx Xxxx | |
Β | Title: |
Β | Director |
Β
By: | Β | /s/ Xxxxxxxxx Xxxxxxx | ||
Β | Name: |
Β | Xxxxxxxxx Xxxxxxx | |
Β | Title: |
Β | Associate |
Β
DEUTSCHE BANK SECURITIES INC. as Syndication Agent and as a Lender, | ||||
By: | Β | /s/ Xxxxxxx X. Xxxxx | ||
Β | Name: |
Β | Xxxxxxx X. Xxxxx | |
Β | Title: |
Β | Managing Director |
Β
By: | Β | /s/ Xxxx Xxxxx | ||
Β | Name: |
Β | Xxxx Xxxxx | |
Β | Title: |
Β | Managing Director |
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DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||||
By: | Β | /s/ Xxxxxxx Xxxxxxx | ||
Β | Name: |
Β | Xxxxxxx Xxxxxxx | |
Β | Title: |
Β | Director |
Β
By: | Β | /s/ Xxxxx X. Xxxxx | ||
Β | Name: |
Β | Xxxxx X. Xxxxx | |
Β | Title: |
Β | Vice President |
Β
BANK OF AMERICA, N.A., as Documentation Agent and as a Lender, | ||||
By: | Β | /s/ Xxxx X. Xxxxxx | ||
Β | Name: |
Β | Xxxx X. Xxxxxx | |
Β | Title: |
Β | Vice President |
Β
BNP PARIBAS SECURITIES CORP., as Documentation Agent and as a Lender, | ||||
By: | Β | /s/ Xxxxxxxx X. Xxxxx | ||
Β | Name: |
Β | Xxxxxxxx X. Xxxxx | |
Β | Title: |
Β | Managing Director |
Β
By: | Β | /s/ Xxxxxxx X. Xxxxx | ||
Β | Name: |
Β | Xxxxxxx X. Xxxxx | |
Β | Title: |
Β | Vice President |
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EXHIBITS to the CREDIT AGREEMENT
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EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
1. This Assignment and Acceptance (the βAssignment and Acceptanceβ) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the βAssignorβ) and [Insert name of Assignee] (the βAssigneeβ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
2. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i)Β all of the Assignorβs rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any Letters of Credit and Swingline Loans included in such facilities) and (ii)Β to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)Β above (the rights and obligations sold and assigned pursuant to clauses (i)Β and (ii)Β above being referred to herein collectively as the βAssigned Interestβ). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
Β
Β | a. | Assignor: Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | b. | Assignee:1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
[and is an Affiliate/Approved Fund of [Identify Lender]]
Β
Β | c. | Borrower: Affinion Group, Inc. |
Β
Β | d. | Administrative Agent: Credit Suisse, Cayman Islands Branch, as Administrative Agent under the Credit Agreement |
Β
Β | e. | Credit Agreement: Credit Agreement dated as of October __, 2005 (as amended, restated, supplemented, waived or otherwise modified from time to time, the |
1 | Assignee cannot be an Ineligible Institution. |
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Β | Β Β | βCredit Agreementβ), among Affinion Group Holdings, Inc., a Delaware corporation (βHoldingsβ), Affinion Group, Inc., a Delaware corporation (the βBorrowerβ), the Lenders from time to time party thereto, Credit Suisse, Cayman Islands Branch, as administrative agent (βCredit Suisseβ or, together with any successor administrative agent, in such capacity, the βAdministrative Agentβ) for the Lenders, Deutsche Bank Securities Inc., as syndication agent (in such capacity, the βSyndication Agentβ), Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents (in such capacity, each, a βDocumentation Agentβ and together, the βDocumentation Agentsβ), Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners (in such capacity, the βJoint Lead Arrangersβ). |
Β
Β | f. | Assigned Interest: |
Β
FacilityΒ Assigned |
Β Β | AggregateΒ AmountΒ of Commitments/Loans for all Lenders |
Β Β | Amount of Commitments/Loans Assigned |
Β Β | PercentageΒ Assigned of Commitments/ Loans2 |
Revolving Facility Loan |
Β Β | Β Β | Β Β | % | ||
Tranche B Term Loan |
Β Β | Β Β | Β Β | % |
Effective Date: Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , Β Β Β Β Β Β Β Β Β Β Β Β , 200_. [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
Β
A-2
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The terms set forth in this Assignment and Acceptance are hereby agreed to:
Β
ASSIGNOR [NAME OF ASSIGNOR] | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
Β ASSIGNEE [NAME OF ASSIGNEE] | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
Β
Consented3 to and accepted: | ||
CREDIT SUISSE, CAYMAN ISLANDS BRANCH AS ADMINISTRATIVE AGENT | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
[Consented4 to:] | ||
AFFINION GROUP, INC. | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
[Consented5 to:] | ||
[NAME] |
3 | Consents to be included to the extent required by SectionΒ 9.04(b) of the Credit Agreement. |
Β
4 | Consents to be included to the extent required by SectionΒ 9.04(b) of the Credit Agreement. |
Β
5 | Consents of Issuing Bank and Swingline Bank to be included to the extent required by SectionΒ 9.04(b) of the Credit Agreement. |
Β
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ANNEX I
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties
1.1. Assignor. The Assignor (a)Β represents and warrants that (i)Β it is the legal and beneficial owner of the Assigned Interest, (ii)Β the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii)Β it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby, and (b)Β assumes no responsibility with respect to (i)Β any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)Β the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii)Β the financial condition of Holdings, the Borrowers, any of their Subsidiaries or Affiliates or any other person obligated in respect of any Loan Document or (iv)Β the performance or observance by Holdings, the Borrowers, any of their Subsidiaries or Affiliates or any other person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a)Β represents and warrants that (i)Β it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii)Β it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii)Β from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder and (iv)Β it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to SectionΒ 5.04 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender; and (b)Β agrees that (i)Β it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender and, based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii)Β it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which
Β
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together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.
Β
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CREDIT SUISSE |
Β Β | FIRST BOSTON |
Β Β |
|
ADMINISTRATIVE QUESTIONNAIRE
AFFINION GROUP, INC.
Β
Agent Information |
Β Β | Agent Closing Contact |
Credit Suisse Eleven Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 |
Β Β | Xxx Xxxxxxx Tel: 000 000-0000 Fax: 000-000-0000 E-Mail: xxx.xxxxxxx@xxxx.xxx |
Agent Wire Instructions Bank of New York ABA 000000000 Account Name: CSFB Cayman Agency Account Account Number: 8900492627 |
Β Β | |
It is very important that all of the requested information be completed accurately and that this questionnaire be returned promptly. If your institution is sub-allocating its allocation, please fill out an administrative questionnaire for each legal entity. | ||
Legal Name of Lender to appear in Documentation: | Β Β | |
Β Β | ||
Signature Block Information: Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β | ||
β’Β Β Β Β Β Β Signing Credit Agreement |
Β Β | Β¨YesΒ Β Β Β Β¨No |
β’Β Β Β Β Β Β Coming in via Assignment |
Β Β | Β¨YesΒ Β Β Β Β¨No |
Type of Lender: Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β | ||
(Bank, Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other-please specify) | ||
Β Lender Parent: Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
LenderΒ DomesticΒ Address |
Β Β | Β | Β Β | LenderΒ EurodollarΒ Address |
Β Β | Β Β | Β Β | Β Β | |
Β Β | Β Β | Β Β | Β Β | |
Β Β | Β Β | Β Β | Β Β |
Β
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Contacts/NotificationΒ Methods:Β Borrowings,Β Paydowns,Β Interest,Β Fees,Β etc. |
Β
Β | Β | Primary Credit Contact | Β Β | Β Β | Β | Secondary Credit Contact |
Name: |
Β | Β Β | Β Β | Β | Β Β | |
Company: |
Β | Β Β | Β Β | Β | Β Β | |
Title: |
Β | Β Β | Β Β | Β | Β Β | |
Address: |
Β | Β Β | Β Β | Β | Β Β | |
Β | Β Β | Β Β | Β Β | Β | Β Β | |
Telephone: |
Β | Β Β | Β Β | Β | Β Β | |
Facsimile: |
Β | Β Β | Β Β | Β | Β Β | |
E-MailΒ Address:Β Β |
Β | Β Β | Β Β | Β | Β Β | |
Β | Primary Operations Contact | Β Β | Β | Secondary Operations Contact | ||
Name: |
Β | Β Β | Β Β | Β | Β Β | |
Company: |
Β | Β Β | Β Β | Β | Β Β | |
Title: |
Β | Β Β | Β Β | Β | Β Β | |
Address: |
Β | Β Β | Β Β | Β | Β Β | |
Β | Β Β | Β Β | Β Β | Β | Β Β | |
Telephone: |
Β | Β Β | Β Β | Β | Β Β | |
Facsimile: |
Β | Β Β | Β Β | Β | Β Β | |
E-MailΒ Address: |
Β | Β Β | Β Β | Β | Β Β |
Β
Lenderβs Domestic Wire Instructions |
Β
BankΒ Name: |
Β | Β Β |
ABA/RoutingΒ No.: |
Β | Β Β |
Account Name: |
Β | Β Β |
Account No.: |
Β | Β Β |
FFCΒ AccountΒ Name:Β Β |
Β | Β Β |
FFCΒ AccountΒ No.: |
Β | Β Β |
Attention: |
Β | Β Β |
Reference: |
Β | Β Β |
Β
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NON-U.S. LENDER INSTITUTIONS:
I. Corporations:
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a US. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted.
II. Flow-Through Entities:
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted.
U.S. LENDER INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised that we request that you submit an original Form W-9.
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned prior to the first payment of income. Failure to provide the proper tax form when requested may subject your institution to U.S. tax withholding.
Β
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EXHIBIT C-1
[FORM OF]
BORROWING REQUEST
Credit Suisse, Cayman Islands Branch,
as Administrative Agent for the Lenders referred to below
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: | Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Fax:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, restated, supplemented, waived or otherwise modified from time to time, the βCredit Agreementβ), among Affinion Group Holdings, Inc., a Delaware corporation, Affinion Group, Inc., a Delaware corporation (the βBorrowerβ), the Lenders from time to time party thereto, Credit Suisse, Cayman Islands Branch, as administrative agent for the Lenders, Deutsche Bank Securities Inc., as syndication agent, Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents, Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners. Terms defined in the Credit Agreement are used herein with the same meanings. This notice constitutes a Borrowing Request and the Borrower hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:
Β
Β | (A) | Type of Borrowing: [Revolving Borrowing] [Term Borrowing] |
Β
Β | (B) | Aggregate Amount of Borrowing1:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (C) | Date of Borrowing (which shall be a Business Day):Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (D) | Type of Borrowing (ABR or Eurocurrency):Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (E) | Interest Period (if a Eurocurrency Borrowing)2:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (F) | Location and number of Borrowerβs account to which proceeds of |
Β | Β | Borrowing are to be disbursed:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
1 | In an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided, that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Commitments or that is required to finance the reimbursement of an L/C Disbursement as contemplated by SectionΒ 2.05(e) of the Credit Agreement. |
Β
2 | Which must comply with the definition of βInterest Periodβ and in the case of Revolving Borrowing, end not later than the Revolving Facility Maturity Date. |
Β
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The Borrower named below hereby represents and warrants that the conditions specified in paragraphs (b)Β and (c)Β of SectionΒ 4.01 of the Credit Agreement are satisfied.3
Β
Very truly yours, Β | ||
AFFINION GROUP, INC. Β | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
3 | To be included in Borrowing Notices after the Closing Date. |
Β
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EXHIBIT C-2
[FORM OF]
SWINGLINE BORROWING REQUEST
Credit Suisse, Cayman Islands Branch,
as Administrative Agent for the Lenders referred to below
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Fax:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, restated, supplemented, waived or otherwise modified from time to time, the βCredit Agreementβ), among Affinion Group Holdings, Inc., a Delaware corporation, Affinion Group, Inc., a Delaware corporation (the βBorrowerβ), the Lenders from time to time party thereto, Credit Suisse, Cayman Islands Branch, as administrative agent for the Lenders, Deutsche Bank Securities Inc., as syndication agent, Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents, Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners. Terms defined in the Credit Agreement are used herein with the same meanings. This notice constitutes a Swingline Borrowing Request and the Borrower hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:
Β
Β | (A) | Aggregate Amount of Borrowing1:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (B) | Date of Borrowing (which shall be a Business Day):Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
Β
Β | (C) | Location and number of Borrowerβs account to which proceeds of |
Β | Β | Borrowing are to be disbursed:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β |
The Borrower named below hereby represents and warrants that the conditions specified in paragraphs (b)Β and (c)Β of SectionΒ 4.01 of the Credit Agreement are satisfied.
Β
Very truly yours, | ||
AFFINION GROUP, INC. | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
1 | In the case of a Swingline Borrowing, not less than $1,000,000 and an integral multiple of $500,000. |
Β
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EXHIBIT D
GUARANTEE AND COLLATERAL AGREEMENT
dated and effective as of
OctoberΒ 17, 2005,
among
AFFINION GROUP HOLDINGS, INC.,
AFFINION GROUP, INC.,
each Subsidiary of the Borrower identified herein,
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
as Administrative Agent
Table of Contents
Β
Β | Β | Β | Β Β | Β | Β Β | Page |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTIONΒ 1.01. |
Β Β | Credit Agreement | Β Β | 1 | |
Β | SECTION 1.02. |
Β Β | Other Defined Terms | Β Β | 1 | |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTION 2.01. |
Β Β | Guarantee | Β Β | 5 | |
Β | SECTION 2.02. |
Β Β | Guarantee of Payment | Β Β | 5 | |
Β | SECTION 2.03. |
Β Β | No Limitations, Etc | Β Β | 5 | |
Β | SECTION 2.04. |
Β Β | Reinstatement | Β Β | 6 | |
Β | SECTION 2.05. |
Β Β | Agreement To Pay; Subrogation | Β Β | 7 | |
Β | SECTION 2.06. |
Β Β | Information | Β Β | 7 | |
Β | SECTION 2.07. |
Β Β | Maximum Liability | Β Β | 7 | |
Β | SECTION 2.08. |
Β Β | Payment Free and Clear of Taxes | Β Β | 7 | |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTION 3.01. |
Β Β | Pledge | Β Β | 7 | |
Β | SECTION 3.02. |
Β Β | Delivery of the Pledged Collateral | Β Β | 8 | |
Β | SECTION 3.03. |
Β Β | Representations, Warranties and Covenants | Β Β | 9 | |
Β | SECTION 3.04. |
Β Β | Registration in Nominee Name; Denominations | Β Β | 10 | |
Β | SECTION 3.05. |
Β Β | Voting Rights; Dividends and Interest, etc | Β Β | 11 | |
Β | Β Β | |||||
Β | Β Β |
Β
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Β | SECTIONΒ 4.01. |
Β Β | Security Interest | Β Β | 13 | |
Β | SECTION 4.02. |
Β Β | Representations and Warranties | Β Β | 15 | |
Β | SECTION 4.03. |
Β Β | Covenants | Β Β | 17 | |
Β | SECTION 4.04. |
Β Β | Other Actions | Β Β | 19 | |
Β | SECTION 4.05. |
Β Β | Trademark and Copyright Collateral |
Β Β | 21 | |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTION 5.01. |
Β Β | Remedies Upon Default | Β Β | 22 | |
Β | SECTION 5.02. |
Β Β | Application of Proceeds | Β Β | 24 | |
Β | SECTION 5.03. |
Β Β | Grant of License to Use Intellectual Property | Β Β | 25 | |
Β | SECTION 5.04. |
Β Β | Securities Act, etc | Β Β | 25 | |
Β | SECTION 5.05. |
Β Β | Registration, etc | Β Β | 26 | |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTION 6.01. |
Β Β | Indemnity and Subrogation | Β Β | 26 | |
Β | SECTION 6.02. |
Β Β | Contribution and Subrogation | Β Β | 27 | |
Β | SECTION 6.03. |
Β Β | Subordination | Β Β | 27 | |
Β | Β Β | |||||
Β | Β Β | |||||
Β | SECTION 7.01. |
Β Β | Notices | Β Β | 27 | |
Β | SECTION 7.02. |
Β Β | Security Interest Absolute | Β Β | 27 | |
Β | SECTION 7.03. |
Β Β | Limitation By Law | Β Β | 27 | |
Β | SECTION 7.04. |
Β Β | Binding Effect; Several Agreement | Β Β | 28 | |
Β | SECTION 7.05. |
Β Β | Successors and Assigns | Β Β | 28 |
Β
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Β | SECTIONΒ 7.06. |
Β Β | Administrative Agentβs Fees and Expenses; Indemnification |
Β Β | 28 | |
Β | SECTIONΒ 7.07. |
Β Β | Administrative Agent Appointed Attorney-in-Fact | Β Β | 29 | |
Β | SECTIONΒ 7.08. |
Β Β | GOVERNING LAW | Β Β | 29 | |
Β | SECTION 7.09. |
Β Β | Waivers; Amendment | Β Β | 29 | |
Β | SECTIONΒ 7.10. |
Β Β | WAIVER OF JURY TRIAL | Β Β | 30 | |
Β | SECTION 7.11. |
Β Β | Severability | Β Β | 30 | |
Β | SECTION 7.12. |
Β Β | Counterparts | Β Β | 30 | |
Β | SECTION 7.13. |
Β Β | Headings | Β Β | 30 | |
Β | SECTION 7.14. |
Β Β | Jurisdiction; Consent to Service of Process | Β Β | 30 | |
Β | SECTION 7.15. |
Β Β | Termination or Release | Β Β | 31 | |
Β | SECTION 7.16. |
Β Β | Additional Subsidiaries | Β Β | 32 | |
Β | SECTION 7.17. |
Β Β | Right of Set-off | Β Β | 32 |
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Schedules |
Β Β | Β Β | ||
ScheduleΒ I |
Β Β | [Reserved.] | Β Β | |
ScheduleΒ II |
Β Β | Capital Stock; Debt Securities | Β Β | |
ScheduleΒ III |
Β Β | Intellectual Property | Β Β | |
Exhibits |
Β Β | Β Β | ||
Exhibit I |
Β Β | Form of Supplement to the Guarantee and Collateral Agreement | Β Β | |
Exhibit II |
Β Β | Form of Perfection Certificate | Β Β |
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GUARANTEE AND COLLATERAL AGREEMENT dated and effective as of OctoberΒ 17, 2005 (this βAgreementβ), among AFFINION GROUP HOLDINGS, INC., a Delaware corporation (βHoldingsβ), AFFINION GROUP, INC., a Delaware limited liability company (the βBorrowerβ), each Subsidiary of the Borrower identified herein as a party (each, a βSubsidiary Partyβ) and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the βAdministrative Agentβ) for the Secured Parties (as defined below).
Reference is made to the Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, restated, supplemented, waived or otherwise modified from time to time, the βCredit Agreementβ), among Holdings, the Borrower, the LENDERS party thereto from time to time, the Administrative Agent, DEUTSCHE BANK SECURITIES INC., as syndication agent (in such capacity, the βSyndication Agentβ), BANK OF AMERICA, N.A. and BNP PARIBAS SECURITIES CORP., as documentation agents (in such capacity, the βDocumentation Agentsβ) and CREDIT SUISSE FIRST BOSTON LLC and DEUTSCHE BANK SECURITIES INC., as joint lead arrangers and joint bookrunners (in such capacity, the βJoint Lead Arrangersβ).
The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement. The Subsidiary Parties are subsidiaries of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as follows:
SECTIONΒ 1.01. Credit Agreement. (a)Β Capitalized terms used in this Agreement and not otherwise defined herein have the respective meanings assigned thereto in the Credit Agreement. All terms defined in the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified therein. The term βinstrumentβ shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in SectionΒ 1.02 of the Credit Agreement also apply to this Agreement.
SECTIONΒ 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
βAccount Debtorβ means any person who is or who may become obligated to any Pledgor under, with respect to or on account of an Account.
βArticle 9 Collateralβ has the meaning assigned to such term in SectionΒ 4.01.
βCollateralβ means Article 9 Collateral and Pledged Collateral.
βControl Agreementβ means a securities account control agreement or a commodity account control agreement, as applicable, enabling the Administrative Agent to obtain βcontrolβ (within the meaning of the New York UCC) of any such accounts, in form and substance reasonably satisfactory to the Administrative Agent.
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βCopyright Licenseβ means any written agreement, now or hereafter in effect, granting any right to any Pledgor under any Copyright now or hereafter owned by any third party, and all rights of any Pledgor under any such agreement (including, without limitation, any such rights that such Pledgor has the right to license).
βCopyrightsβ means all of the following now owned or hereafter acquired by any Pledgor (or, as required in the context of the definition of βCopyright License,β any third party licensor): (a)Β all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise; and (b)Β all registrations and applications for registration of any such Copyright in the United States or any other country, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III.
βCredit Agreementβ has the meaning assigned to such term in the preliminary statement of this Agreement.
βFederal Securities Lawsβ has the meaning assigned to such term in SectionΒ 5.04.
βGeneral Intangiblesβ means all βGeneral Intangiblesβ as defined in the New York UCC.
βGuarantorsβ means Holdings and the Subsidiary Guarantors.
βIntellectual Propertyβ means all intellectual and similar property of every kind and nature now owned or hereafter acquired by any Pledgor, including inventions, designs, Patents, Copyrights, Trademarks, trade secrets, domain names, confidential or proprietary technical and business information, know-how, show-how or other data or information and all related documentation.
βIP Agreementsβ means all material Copyright Licenses, Patent Licenses, Trademark Licenses, and all other agreements, permits, consents, orders and franchises relating to the license, development, use or disclosure of any material Intellectual Property to which a Pledgor, now or hereafter, is a party or a beneficiary, including, without limitation, the agreements set forth on Schedule III hereto.
βLoan Document Obligationsβ means (a)Β the due and punctual payment by the Borrower of (i)Β the unpaid principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans made to the Borrower, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii)Β each payment required to be made by the Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to provide cash collateral and (iii)Β all other monetary obligations of the Borrower to any of the Secured Parties under the Credit Agreement and each of the other Loan Documents, including obligations to pay fees, expense and reimbursement obligations and indemnification obligations, whether primary, secondary,
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direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b)Β the due and punctual performance of all other obligations of the Borrower under or pursuant to the Credit Agreement and each of the other Loan Documents and (c)Β the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents.
βNew York UCCβ means the Uniform Commercial Code as from time to time in effect in the State of New York.
βObligationsβ means (a)Β the Loan Document Obligations, (b)Β the due and punctual payment and performance of all obligations of each Loan Party under each Swap Agreement that (i)Β is in effect on the Closing Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date or (ii)Β is entered into after the Closing Date with any counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Agreement is entered into and (c)Β the due and punctual payment and performance of all obligations of the Borrower and any of its subsidiaries in respect of overdrafts and related liabilities owed to a Lender or any of its Affiliates (or any other Person designated by the Borrower as a provider of cash management services and entitled to the benefit of this Agreement) and arising from cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer, ACH services and other cash management arrangements).
βPatent Licenseβ means any written agreement, now or hereafter in effect, granting to any Pledgor any right to make, use or sell any invention covered by a Patent, now or hereafter owned by any third party (including, without limitation, any such rights that such Pledgor has the right to license).
βPatentsβ means all of the following now owned or hereafter acquired by any Pledgor (or, as required in the context of the definition of βPatent License,β any third party licensor): (a)Β all letters patent of the United States or the equivalent thereof in any other country, and all applications for letters patent of the United States or the equivalent thereof in any other country, including those listed on Schedule III, and (b)Β all reissues, continuations, divisions, continuations-in-part or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.
βPerfection Certificateβ means a certificate substantially in the form of Exhibit II, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by an officer of each Pledgor.
βPermitted Liensβ means any Lien permitted by SectionΒ 6.02 and SectionΒ 6.08(b) of the Credit Agreement.
βPledged Collateralβ has the meaning assigned to such term in SectionΒ 3.01.
βPledged Debt Securitiesβ has the meaning assigned to such term in SectionΒ 3.01.
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βPledged Securitiesβ means any promissory notes, stock certificates or other certificated securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.
βPledged Stockβ has the meaning assigned to such term in SectionΒ 3.01.
βPledgorβ shall mean the Borrower and each Guarantor.
βRequirement of Lawβ means, with respect to any person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other legal requirements or determinations (including, without limitation, the Communications Act of 1934, as amended, and the written rules and regulations of the FCC) of any Governmental Authority or arbitrator, applicable to or binding upon such person or any of its property or which such Person or any of its property is subject.
βSecured Partiesβ means (a)Β the Lenders (and any Affiliate of a Lender or any other Person designated by the Borrower as a provider of cash management services to which any obligation referred to in clause (c)Β of the definition of the term βObligationsβ is owed), (b)Β the Administrative Agent, (c)Β each Issuing Bank, (d)Β each counterparty to any Swap Agreement entered into with a Loan Party the obligations under which constitute Obligations, (e)Β the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (f)Β the successors and permitted assigns of each of the foregoing.
βSecurity Interestβ has the meaning assigned to such term in SectionΒ 4.01.
βSubsidiary Partyβ has the meaning assigned to such term in the preliminary statement of this Agreement, which includes any Subsidiary under SectionΒ 7.16.
βTrademark Licenseβ means any written agreement, now or hereafter in effect, granting to any Pledgor any right to use any Trademark now or hereafter owned by any third party (including, without limitation, any such rights that such Pledgor has the right to license).
βTrademarksβ means all of the following now owned or hereafter acquired by any Pledgor (or, as required in the context of the definition of βTrademark License,β any third party licensor): (a)Β all trademarks, service marks, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations thereof (if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all renewals thereof, including those listed on Schedule III and (b)Β all goodwill associated therewith or symbolized thereby.
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SECTIONΒ 2.01. Guarantee. Each Guarantor unconditionally guarantees to the Administrative Agent, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations for the ratable benefit of the Secured Parties. Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment to, demand of payment from and protest to the Borrower or any other Loan Party of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment.
SECTIONΒ 2.02. Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Administrative Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any deposit account or credit on the books of the Administrative Agent (including in its individual capacity) or any other Secured Party in favor of the Borrower or any other person.
SECTIONΒ 2.03. No Limitations, Etc. (a) Except for termination of a Guarantorβs obligations hereunder as expressly provided for in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise (other than defense of payment or performance). Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document or otherwise;
(ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement;
(iii) the failure to perfect any security interest in, or the exchange, substitution, release or any impairment of, any security held by the Administrative Agent or any other Secured Party for the Obligations;
(iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations;
(v) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the payment in full in cash of all the Obligations),
(vi) any illegality, lack of validity or enforceability of any Obligation,
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(vii) any change in the corporate existence, structure or ownership of the Borrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower or its assets or any resulting release or discharge of any Obligation (other than the payment in full in cash of all the Obligations),
(viii) the existence of any claim, set-off or other rights that the Guarantor may have at any time against the Borrower, the Administrative Agent, or any other corporation or person, whether in connection herewith or any unrelated transactions, provided that nothing herein will prevent the assertion of any such claim by separate suit or compulsory counterclaim,
(ix) and any other circumstance (including without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent that might otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower or the Guarantor or any other guarantor or surety.
Each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash or immediately available funds of all the Obligations (other than contingent or unliquidated obligations or liabilities). The Administrative Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations (other than contingent or unliquidated obligations or liabilities) have been paid in full in cash or immediately available funds. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against any other Loan Party, as the case may be, or any security.
SECTIONΒ 2.04. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise.
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SECTIONΒ 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the Administrative Agent as provided above, all rights of such Guarantor against the Borrower, or other Loan Party or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.
SECTIONΒ 2.06. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the financial condition and assets of the Borrower and each other Loan Party, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that none of the Administrative Agent or the other Secured Parties will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.
SECTIONΒ 2.07. Maximum Liability. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of debtors (after giving effect to the right of contribution established in Section 6.02).
SECTIONΒ 2.08. Payment Free and Clear of Taxes. Any and all payments by or on account of any obligation of any Guarantor hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any Indemnified Taxes or Other Taxes on the same terms and to the same extent that payments by the Borrower and Holdings are required to be made pursuant to the terms of SectionΒ 2.17 of the Credit Agreement. The provisions of SectionΒ 2.17 of the Credit Agreement shall apply to each Guarantor, mutatis mutandis.
SECTIONΒ 3.01. Pledge. As security for the payment or performance, as the case may be, in full of the Obligations, each Pledgor hereby assigns and pledges to the Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all of such Pledgorβs right, title and interest in, to and under (a) the Equity Interests directly owned by it (including those listed on Schedule II) and any other Equity Interests obtained in the future by such Pledgor and any certificates representing all such Equity Interests (the βPledged Stockβ); provided, that the Pledged Stock shall not include (i) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary, which pledge shall be duly noted on the share register, if any, of such Foreign Subsidiary, (ii) to the extent applicable law requires that a Subsidiary of such Pledgor issue directorsβ qualifying shares, such shares or nominee or other similar shares, (iii) any Equity Interests with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.11 of the Credit Agreement need not be satisfied by reason of Section 5.11(g) of the Credit Agreement, (iv) any Equity Interests of a Subsidiary to the extent that, as of the Closing Date, and for so long as, such a pledge of such Equity Interests would violate a contractual obligation binding on or relating to such Equity Interest permitted to exist under the
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Credit Agreement or (v)Β any Equity Interests of a person that is not directly or indirectly a Subsidiary; (b)(i) the debt securities listed opposite the name of such Pledgor on Schedule II, (ii)Β any debt securities in the future issued to such Pledgor and (iii)Β the promissory notes and any other instruments, if any, evidencing such debt securities (the βPledged Debt Securitiesβ); (c)Β subject to SectionΒ 3.05, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other proceeds received in respect of, the securities referred to in clauses (a)Β and (b)Β above; (d)Β subject to SectionΒ 3.05, all rights and privileges of such Pledgor with respect to the securities and other property referred to in clauses (a), (b)Β and (c)Β above; and (e)Β all proceeds of any of the foregoing (the items referred to in clauses (a)Β through (e)Β above being collectively referred to as the βPledged Collateralβ).
TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth.
SECTIONΒ 3.02. Delivery of the Pledged Collateral. (a)Β Each Pledgor agrees promptly to deliver or cause to be delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, any and all Pledged Securities to the extent such Pledged Securities, in the case of promissory notes or other instruments evidencing Indebtedness, are required to be delivered pursuant to paragraph (b) of this Section 3.02.
(b) Each Pledgor will cause any Indebtedness for borrowed money having, in the case of each instance of Indebtedness, an aggregate principal amount in excess of $1,000,000 (other than (i)Β intercompany current liabilities incurred in connection with the cash management operations and intercompany sales of the Borrower and the Subsidiaries permitted by the Credit Agreement or (ii)Β to the extent that a pledge of such promissory note or instrument would violate applicable law) owed to such Pledgor by any person and evidenced by a duly executed promissory note to be pledged and delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, pursuant to the terms hereof. To the extent any such promissory note is a demand note, each Pledgor party thereto agrees, if requested by the Administrative Agent, to immediately demand payment thereunder upon an Event of Default specified under SectionΒ 7.01(b), (c), (f), (h), or (i)Β of the Credit Agreement.
(c) Upon delivery to the Administrative Agent, (i)Β any Pledged Securities required to be delivered pursuant to the foregoing paragraphs (a)Β and (b)Β of this SectionΒ 3.02 shall be accompanied by stock powers or note powers, as applicable, duly executed in blank or other instruments of transfer reasonably satisfactory to the Administrative Agent and by such other instruments and documents as the Administrative Agent may reasonably request and (ii)Β all other property composing part of the Pledged Collateral delivered pursuant to the terms of this Agreement shall be accompanied to the extent necessary to perfect the security interest in or allow realization on the Pledged Collateral by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents (including issuer acknowledgments in respect of uncertificated securities) as the Administrative Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be attached hereto as Schedule II (or a supplement to Schedule II, as applicable) and made a part hereof; provided, that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
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SECTIONΒ 3.03. Representations, Warranties and Covenants. The Pledgors, jointly and severally, represent, warrant and covenant to and with the Administrative Agent, for the ratable benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued and outstanding shares of each class of the Equity Interests of the issuer thereof represented by such Pledged Stock and includes all Equity Interests, debt securities and promissory notes or instruments evidencing Indebtedness required to be (i)Β pledged in order to satisfy the Collateral and Guarantee Requirement, or (ii)Β delivered pursuant to SectionΒ 3.02(b);
(b) the Pledged Stock and Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not the Borrower, a Subsidiary or an Affiliate of the Borrower or any such subsidiary, to the best of each Pledgorβs knowledge) have been duly and validly authorized and issued by the issuers thereof and (i)Β in the case of Pledged Stock, are fully paid and nonassessable (other than with respect to Pledge Stock consisting of membership interests of limited liability companies to the extent provided in Sections 18-502 and 18-607 of the Delaware Limited Liability Company Act) and (ii)Β in the case of Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a person that is not the Borrower, a Subsidiary or an Affiliate of the Borrower or any such subsidiary, to the best of each Pledgorβs knowledge) are legal, valid and binding obligations of the issuers thereof, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditorsβ rights generally, general equitable principles (whether considered in a proceeding at law or in equity) and an implied covenant of good faith and fair dealing;
(c) as of the Closing Date, none of the Equity Interests in limited liability companies or partnerships that are pledged by the Pledgors hereunder constitutes a security under SectionΒ 8-103 of the Uniform Commercial Code or the corresponding code or statute of any other applicable jurisdiction;
(d) the Pledgors shall not amend, or permit to be amended, the limited liability company agreement (or operating agreement or similar agreement) or partnership agreement of any Subsidiary of any Loan Party whose Equity Interests are, or are required to be, Collateral in a manner to cause such Equity Interests to constitute a security under SectionΒ 8-103 of the Uniform Commercial Code in the State of New York or the corresponding code or statute of any other applicable jurisdiction unless such Loan Party shall have first delivered 30 days written notice to the Collateral Agent and shall have taken all actions contemplated hereby and as otherwise reasonably required by the Collateral Agent to maintain the security interest of the Collateral Agent therein as a valid, perfected, first priority security interest;
(e) except for the security interests granted hereunder, each Pledgor (i)Β is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Pledgor, (ii)Β holds the same free and clear of all Liens, other than Permitted Liens, (iii)Β will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than pursuant to a
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transaction permitted by the Credit Agreement and other than Permitted Liens and (iv)Β subject to the rights of such Pledgor under the Loan Documents to dispose of Pledged Collateral, will use commercially reasonable efforts to defend its title or interest hereto or therein against any and all Liens (other than Permitted Liens), however arising, of all persons;
(f) other than as set forth in the Credit Agreement or the schedules thereto, and except for restrictions and limitations imposed by the Loan Documents or securities laws generally or otherwise permitted to exist pursuant to the terms of the Credit Agreement, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Administrative Agent of rights and remedies hereunder;
(g) each Pledgor has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated;
(h) other than as set forth in the Credit Agreement or the schedules thereto, no consent or approval of any Governmental Authority, any securities exchange or any other person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect);
(i) each Pledgor that is an issuer of the Pledged Collateral confirms that is has received notice of the security interest granted hereunder;
(j) by virtue of the execution and delivery by the Pledgors of this Agreement and the Foreign Pledge Agreements, when any Pledged Securities (including Pledged Stock of any domestic Subsidiary and any foreign stock covered by a Foreign Pledge Agreement) are delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, in accordance with this Agreement, the Administrative Agent will obtain, for the ratable benefit of the Secured Parties, a legal, valid and perfected lien upon and security interest in such Pledged Securities, subject only to Liens permitted under the Credit Agreement or arising by operation of law, as security for the payment and performance of the Obligations; and
(k) the pledge effected hereby is effective to vest in the Administrative Agent, for the ratable benefit of the Secured Parties, the rights of the Administrative Agent in the Pledged Collateral as set forth herein.
SECTIONΒ 3.04. Registration in Nominee Name; Denominations. The Administrative Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Pledgor, endorsed or assigned in blank or in favor of the Administrative Agent or, if an Event of Default shall have occurred and be continuing, in its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). Each Pledgor will promptly give to the Administrative Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Pledgor. If an Event of Default shall have occurred and be continuing, the
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Administrative Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement. Each Pledgor shall use its commercially reasonable efforts to cause any Loan Party that is not a party to this Agreement to comply with a request by the Administrative Agent, pursuant to this SectionΒ 3.04, to exchange certificates representing Pledged Securities of such Loan Party for certificates of smaller or larger denominations.
SECTIONΒ 3.05. Voting Rights; Dividends and Interest, etc. (a)Β Unless and until an Event of Default shall have occurred and be continuing and the Administrative Agent shall have given notice to the relevant Pledgors of the Administrative Agentβs intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided, that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Administrative Agent or the other Secured Parties under this Agreement, the Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Administrative Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i)Β above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws; provided, that (A)Β any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities or Article 9 Collateral, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B)Β any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities or Article 9 Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral or Article 9 Collateral, as applicable, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Administrative Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Administrative Agent).
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(b) Upon the occurrence and during the continuance of an Event of Default and after notice by the Administrative Agent to the Borrower of the Administrative Agentβs intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this SectionΒ 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Administrative Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (i)Β and subclause (ii)Β of SectionΒ 6.06(b) of the Credit Agreement and such amounts are required by Holdings for the stated purposes thereof. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this SectionΒ 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Administrative Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Administrative Agent). Any and all money and other property paid over to or received by the Administrative Agent pursuant to the provisions of this paragraph (b)Β shall be retained by the Administrative Agent in an account to be established by the Administrative Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of SectionΒ 5.02. After all Events of Default have been cured or waived and the Borrower has delivered to the Administrative Agent a certificate to that effect, the Administrative Agent shall promptly repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this SectionΒ 3.05 and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default and after notice by the Administrative Agent to the Borrower of the Administrative Agentβs intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this SectionΒ 3.05, and the obligations of the Administrative Agent under paragraph (a)(ii) of this SectionΒ 3.05, shall cease, and all such rights shall thereupon become vested in the Administrative Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers (other than any Event of Default under SectionΒ 7.01(h) or (i)Β the Credit Agreement); provided, that, unless otherwise directed by the Required Lenders, the Administrative Agent shall have the right from time to time following and during the continuance of an Event of Default (other than any Event of Default under SectionΒ 7.01(h) or (i)Β of the Credit Agreement) to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Borrower has delivered to the Administrative Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
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Security Interests in Personal Property
SECTIONΒ 4.01. Security Interest. (a)Β As security for the payment or performance, as the case may be, in full of the Obligations, each Pledgor hereby assigns and pledges to the Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the βSecurity Interestβ) in all right, title and interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Pledgor or in which such Pledgor now has or at any time in the future may acquire any right, title or interest (collectively, the βArticle 9 Collateralβ):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Intellectual Property;
(ix) all Inventory;
(x) all Investment Property;
(xi) all Letter of Credit Rights;
(xii) all Commercial Tort Claims;
(xiii) to the extent not included in the definition of βGeneral Intangiblesβ, all choses in action and causes of action and all other intangible personal property of any Pledgor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Pledgor, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral; and
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(xvi) to the extent not otherwise included, all proceeds, Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a)Β any vehicle covered by a certificate of title or ownership, (b)Β any assets with respect to which the Collateral and Guarantee Requirement or the other paragraphs of SectionΒ 5.11 of the Credit Agreement need not be satisfied by reason of SectionΒ 5.11(g) of the Credit Agreement, (c)Β any Equity Interests, the pledge of which is governed by SectionΒ 3.01 hereof, (d)Β any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (e)Β any Pledgorβs right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, any license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to SectionΒ 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect.
(b) Each Pledgor hereby irrevocably authorizes the Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (i)Β whether such Pledgor is an organization, the type of organization and any organizational identification number issued to such Pledgor, (ii)Β in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates and (iii)Β a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as βall assetsβ or βall property.β Each Pledgor agrees to provide such information to the Administrative Agent promptly upon request.
The Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Pledgor, without the signature of any Pledgor, and naming any Pledgor or the Pledgors as debtors and the Administrative Agent as secured party.
(c) The Security Interest is granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Pledgor with respect to or arising out of the Article 9 Collateral.
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SECTIONΒ 4.02. Representations and Warranties. The Pledgors jointly and severally represent and warrant to the Administrative Agent and the Secured Parties that:
(a) Each Pledgor has good and valid rights in and title to the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Administrative Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained and is in full force and effect or has otherwise been disclosed herein or in the Credit Agreement and the Schedules hereto.
(b) The Perfection Certificate has been duly prepared, completed and executed and the information set forth-therein, including the exact legal name of each Pledgor, is correct and complete, in all material respects, as of the Closing Date. Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Article 9 Collateral have been prepared by the Administrative Agent based upon the information provided to the Administrative Agent in the Perfection Certificate for filing in each governmental, municipal or other office specified in Schedule 7 to the Perfection Certificate (or specified by notice from the Borrower to the Administrative Agent after the Closing Date in the case of filings, recordings or registrations required by SectionΒ 5.11 of the Credit Agreement), and constitute all the filings, recordings and registrations (other than filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in Article 9 Collateral consisting of United States Patents, United States registered Trademarks and United States registered Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent (for the ratable benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements or amendments. Each Pledgor represents and warrants that a fully executed Intellectual Property Security Agreement containing a description of all Article 9 Collateral consisting of Intellectual Property with respect to United States Patents (and Patents for which United States registration applications are pending), United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights (and Copyrights for which United States registration applications are pending) has been delivered to the Administrative Agent for recording with the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. Β§ 261, 15 U.S.C. Β§ 1060 or 17 U.S.C. Β§ 205 and the regulations thereunder, as applicable, and reasonably requested by the Administrative Agent, to protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, in respect of all Article 9 Collateral consisting of such Intellectual Property in which a security interest may be perfected by recording with the United States Patent and Trademark Office and the United States Copyright Office, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary (other than such actions as are necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of Patents, Trademarks and Copyrights (or registration or application for registration thereof) acquired or developed after the date hereof).
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(c) The Security Interest constitutes (i)Β a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Obligations, (ii)Β subject to the filings described in SectionΒ 4.02(b), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other applicable law in such jurisdictions and (iii)Β subject to SectionΒ 4.02(b), a security interest that shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of the Intellectual Property Security Agreement with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral other than Permitted Liens or Liens arising by operation of law.
(d) The Article 9 Collateral is owned by the Guarantors free and clear of any Lien, other than Permitted Liens or Liens arising by operation of law. None of the Pledgors has filed or consented to the filing of (i)Β any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Article 9 Collateral, (ii)Β any assignment in which any Pledgor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office or (iii)Β any assignment in which any Pledgor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Permitted Liens.
(e) None of the Pledgors holds any Commercial Tort Claim individually in excess of $500,000 as of the Closing Date except as indicated on the Perfection Certificate.
(f) Except as set forth in the Perfection Certificate, as of the Closing Date, all Accounts owned by the Pledgors have been originated by the Pledgors and all Inventory owned by the Pledgors has been acquired by the Pledgors in the ordinary course of business.
(g) As to itself and its Intellectual Property Collateral:
(i) The Intellectual Property Collateral set forth on Schedule III includes all of the Patents, domain names, Trademarks, Copyrights and IP Agreements owned by such Pledgor as of the date hereof.
(ii) The Intellectual Property Collateral is subsisting and has not been adjudged invalid or unenforceable in whole or part, and to the best of such Pledgorβs knowledge, is valid and unenforceable, except as could not reasonably be expected to have a Material Adverse Effect. Such Pledgor is not aware of any uses of any item of Intellectual Property Collateral that would be expected to lead to such item becoming invalid or unenforceable, except as could not reasonably be expected to have a Material Adverse Effect.
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(iii) Such Pledgor has made or performed all commercially reasonable acts, including without limitation filings, recordings and payment of all required fees and taxes, required to maintain and protect its interest in each and every item of Intellectual Property Collateral in full force and effect in the United States and such Pledgor has used proper statutory notice in connection with its use of each Patent, Trademark and Copyright in the Intellectual Property Collateral, in each case, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
(iv) With respect to each IP Agreement, the absence, termination or violation of which could reasonably be expected to have a Material Adverse Effect: (A)Β such Pledgor has not received any notice of termination or cancellation under such IP Agreement; (B)Β such Pledgor has not received any notice of a breach or default under such IP Agreement, which breach or default has not been cured or waived; and (C)Β neither such Pledgor nor any other party to such IP Agreement is in breach or default thereof in any material respect, and no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under such IP Agreement.
(v) Except as could reasonably be expected to have a Material Adverse Effect, no Pledgor or Intellectual Property Collateral is subject to any outstanding consent, settlement, decree, order, injunction, judgment or ruling restricting the use of any Intellectual Property Collateral or that would impair the validity or enforceability of such Intellectual Property Collateral.
SECTIONΒ 4.03. Covenants. (a)Β Each Pledgor agrees promptly to notify the Administrative Agent in writing of any change (i) in its corporate name, (ii) in its identity or type of organization or corporate structure, (iii) in its Federal Taxpayer Identification Number or organizational identification number or (iv) in its jurisdiction of organization. Each Pledgor agrees promptly to provide the Administrative Agent with certified organizational documents reflecting any of the changes described in the immediately preceding sentence. Each Pledgor agrees not to effect or permit any change referred to in the first sentence of this paragraph (a) unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Article 9 Collateral, for the ratable benefit of the Secured Parties. Each Pledgor agrees promptly to notify the Administrative Agent if any material portion of the Article 9 Collateral owned or held by such Pledgor is damaged or destroyed.
(b) Subject to the rights of such Pledgor under the Loan Documents to dispose of Collateral, each Pledgor shall, at its own expense, use commercially reasonable efforts to defend title to the Article 9 Collateral against all persons and to defend the Security Interest of the Administrative Agent, for the ratable benefit of the Secured Parties, in the Article 9 Collateral and the priority thereof against any Lien that is not a Permitted Lien.
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(c) Each Pledgor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Administrative Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including, without limitation, the payment of any fees and taxes required in connection with the execution and delivery of this Agreement and the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith. If any amount payable under or in connection with any of the Article 9 Collateral that is in excess of $1,000,000 shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be promptly pledged and delivered to the Administrative Agent, for the ratable benefit of the Secured Parties, duly endorsed in a manner reasonably satisfactory to the Administrative Agent.
Without limiting the generality of the foregoing, each Pledgor hereby authorizes the Administrative Agent, with prompt notice thereof to the Pledgors, to supplement this Agreement by supplementing Schedule III or adding additional schedules hereto to specifically identify any asset or item that may constitute Copyrights, Patents, Trademarks, Copyright Licenses, Patent Licenses or Trademark Licenses; provided that any Pledgor shall have the right, exercisable within 30 days after the Borrower has been notified by the Administrative Agent of the specific identification of such Article 9 Collateral, to advise the Administrative Agent in writing of any inaccuracy of the representations and warranties made by such Pledgor hereunder with respect to such Article 9 Collateral. Each Pledgor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Article 9 Collateral within 30 days after the date it has been notified by the Administrative Agent of the specific identification of such Article 9 Collateral, including, if such inaccuracy arose from the omission of any items from any such Schedules, by supplementing any such Schedule hereto and the Perfection Certificate.
(d) After the occurrence of an Event of Default and during the continuance thereof, the Administrative Agent shall have the right to verify under reasonable procedures the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article 9 Collateral for the purpose of making such a verification. The Administrative Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party.
(e) At its option, the Administrative Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Article 9 Collateral and is not a Permitted Lien, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Pledgor fails to do so as required by the Credit Agreement or this Agreement, and each Pledgor jointly and severally agrees to reimburse the Administrative Agent on demand for any reasonable payment made or any reasonable expense incurred by the Administrative Agent pursuant to the foregoing authorization; provided, however, that nothing in this SectionΒ 4.03(e) shall be interpreted as excusing any Pledgor from the performance of, or imposing any obligation on the Administrative Agent or any Secured Party to cure or perform, any covenants or other promises of any Pledgor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.
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(f) Each Pledgor (rather than the Administrative Agent or any Secured Party) shall remain liable for the observance and performance of all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral and each Pledgor jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the Secured Parties from and against any and all liability for such performance.
(g) None of the Pledgors shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral, except as expressly permitted by the Credit Agreement. None of the Pledgors shall make or permit to be made any transfer of the Article 9 Collateral and each Pledgor shall remain at all times in possession of the Article 9 Collateral owned by it, except as permitted by the Credit Agreement.
(h) None of the Pledgors will, without the Administrative Agentβs prior written consent (which consent shall not be unreasonably withheld), grant any extension of the time of payment of any Accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, compromises or settlements granted or made in the ordinary course of business and consistent with prudent business practices, except as permitted by the Credit Agreement.
(i) Each Pledgor irrevocably makes, constitutes and appoints the Administrative Agent (and all officers, employees or agents designated by the Administrative Agent) as such Pledgorβs true and lawful agent (and attorney-in-fact) for the purpose, during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing. the name of such Pledgor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Pledgor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Administrative Agent may, without waiving or releasing any obligation or liability of the Pledgors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Administrative Agent reasonably deems advisable. All sums disbursed by the Administrative Agent in connection with this SectionΒ 4.03(i), including reasonable attorneysβ fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Guarantors to the Administrative Agent and shall be additional Obligations secured hereby.
SECTIONΒ 4.04. Other Actions. In order to further ensure the attachment, perfection and priority of, and the ability of the Administrative Agent to enforce, for the ratable benefit of the Secured Parties, the Administrative Agentβs security interest in the Article 9 Collateral, each Pledgor agrees, in each case at such Pledgorβs own expense, to take the following actions with, respect to the following Article 9 Collateral:
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(a) Instruments and Tangible Chattel Paper. If any Pledgor shall at any time own or acquire any Instruments or Tangible Chattel Paper evidencing an amount in excess of $1,000,000, such Pledgor shall forthwith endorse, assign and deliver the same to the Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably request.
(b) Investment Property. Except to the extent otherwise provided in Article III, if any Pledgor shall at any time hold or acquire any Certificated Security, such Pledgor shall forthwith endorse, assign and deliver the same to the Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably specify. If any security of a domestic issuer now or hereafter acquired by any Pledgor is uncertificated and is issued to such Pledgor or its nominee directly by the issuer thereof, (i)Β upon the Administrative Agentβs reasonable request and (ii)Β upon the occurrence and during the continuance of an Event of Default, such Pledgor shall promptly notify the Administrative Agent of such uncertificated securities and pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, either (i)Β cause the issuer to agree to comply with instructions from the Administrative Agent as to such security, without further consent of any Pledgor or such nominee, or (ii)Β cause the issuer to register the Administrative Agent as the registered owner of such security. If any security or other Investment Property, whether certificated or uncertificated, representing an Equity Interest in a third party and having a fair market value in excess of $500,000 now or hereafter acquired by any Pledgor is held by such Pledgor or its nominee through a securities intermediary or commodity intermediary, such Pledgor shall promptly notify the Administrative Agent thereof and, at the Administrative Agentβs request and option, pursuant to a Control Agreement in form and substance reasonably satisfactory to the Administrative Agent, either (A)Β cause such securities intermediary or commodity intermediary, as applicable, to agree, in the case of a securities intermediary, to comply with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other Investment Property or, in the case of a commodity intermediary, to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of any Pledgor or such nominee, or (B)Β in the case of Financial Assets or other Investment Property held through a securities intermediary, arrange for the Administrative Agent to become the entitlement holder with respect to such Investment Property, for the ratable benefit of the Secured Parties, with such Pledgor being permitted, only with the consent of the Administrative Agent, to exercise rights to withdraw or otherwise deal with such Investment Property. The Administrative Agent agrees with each of the Guarantors that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Pledgor, unless an Event of Default has occurred and is continuing or, after giving effect to any such withdrawal or dealing rights, would occur. The provisions of this paragraph (b)Β requiring a Control Agreement shall not apply to any Financial Assets credited to a securities account for which the Administrative Agent is the securities intermediary.
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(c) Commercial Tort Claims. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $500,000, such Pledgor shall promptly notify the Administrative Agent thereof in a writing signed by such Pledgor, including a summary description of such claim, and grant to the Administrative Agent in writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent.
SECTIONΒ 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. Except as permitted by the Credit Agreement:
(a) Each Pledgor agrees that it will not knowingly do any act or omit to do any act (and will exercise commercially reasonable efforts to prevent its licensees from doing any act or omitting to do any act) whereby any Patent that is material to such Pledgorβs business may become prematurely invalidated or dedicated to the public, and agrees that it shall take commercially reasonable steps with respect to any material products covered by any such Patent as necessary and sufficient to establish and preserve its rights under applicable patent laws.
(b) Each Pledgor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each Trademark material to such Pledgorβs business, (i)Β maintain such Trademark in full force free from any adjudication of abandonment or invalidity for non-use, (ii)Β maintain the quality of products and services offered under such Trademark, (iii)Β display such Trademark with notice of federal or foreign registration or claim of trademark or service xxxx as required under applicable law and (iv)Β not knowingly use or knowingly permit its licenseesβ use of such Trademark in violation of any third-party rights.
(c) Each Pledgor will, and will use its commercially reasonable efforts to cause its licensees or its sublicensees to, for each work covered by a Copyright material to the of such Pledgorβs business that it publishes, displays and distributes, use copyright notice as required under applicable copyright laws.
(d) Each Pledgor shall notify the Administrative Agent promptly if it knows that any Patent, Trademark or Copyright material to such Pledgorβs business may imminently become abandoned, lost or dedicated to the public, or of any materially adverse determination or development, excluding office actions and similar determinations or developments in the United States Patent and Trademark Office, United States Copyright Office, any court or any similar office of any country, regarding such Pledgorβs ownership of any such material Patent, Trademark or Copyright or its right to register or to maintain the same.
(e) Each Pledgor, either itself or through any agent, employee, licensee or designee, shall (i)Β inform the Administrative Agent on a semi-annual basis of each application by itself, or through any agent, employee, licensee or designee, for any Patent with the United States Patent and Trademark Office and each registration of any Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country filed during the preceding six-month period, and (ii)Β upon the reasonable request of the Administrative Agent, execute and deliver any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agentβs security interest in such Patent, Trademark or Copyright.
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(f) Each Pledgor shall exercise its reasonable business judgment consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any comparable office or agency in any other country with respect to maintaining and pursuing each application relating to any Patent, Trademark and/or Copyright (and obtaining the relevant grant or registration) and to maintain (i)Β each issued material Patent and (ii)Β the registrations of each material Trademark and each material Copyright, including, when applicable and necessary in such Pledgorβs reasonable business judgment, timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if any Pledgor believes necessary in its reasonable business judgment, to initiate opposition, interference and cancellation proceedings against third parties.
(g) In the event that any Pledgor knows or has reason to know that any Article 9 Collateral consisting of a Patent, Trademark or Copyright material to its business has been or is about to be materially infringed, misappropriated or diluted by a third party, such Pledgor shall promptly notify the Administrative Agent and shall, if such Pledgor deems it necessary in its reasonable business judgment, promptly xxx and recover any and all damages, and take such other actions as are reasonably appropriate under the circumstances.
(h) Upon the occurrence and during the continuance of an Event of Default, each Pledgor shall use commercially reasonable efforts to obtain all requisite consents or approvals from the licensor under each Copyright License, Patent License or Trademark License to effect the assignment of all such Pledgorβs right, title and interest thereunder to (in the Administrative Agentβs sole discretion) the designee of the Administrative Agent or the Administrative Agent.
SECTIONΒ 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an Event of Default, each Pledgor agrees to deliver each item of Collateral to the Administrative Agent on demand, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Pledgors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers thereunder cannot be obtained after commercially reasonable efforts on the part of the applicable Pledgors to obtain such waivers) and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to the applicable Pledgor to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the applicable Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Pledgor agrees that the Administrative Agent shall have the right, subject to the requirements of applicable law, to
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sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any brokerβs board or on any securities exchange, for cash, upon credit or for future delivery as the Administrative Agent shall deem appropriate. The Administrative Agent shall be authorized in connection with any sale of a security (if it deems it advisable to do so) pursuant to the foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that they are purchasing such security for their own account, for investment, and not with a view to the distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this SectionΒ 5.01, the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal that such Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
The Administrative Agent shall give the applicable Pledgors 10 Business Daysβ written notice (which each Pledgor agrees is reasonable notice within the meaning of SectionΒ 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Administrative Agentβs intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a brokerβs board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may (in its sole and absolute discretion) determine. The Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In the case of any sale of all or any part of the Collateral made on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent shall not incur any liability in the event that any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon notice given in accordance with provisions above. At any public (or, to the extent permitted by law, private) sale made pursuant to this SectionΒ 5.01, any Secured Party may bid for or purchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Pledgor (all such rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property in accordance with SectionΒ 5.02 hereof without further accountability to any Pledgor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Administrative Agent shall be free to carry out such sale pursuant to such agreement and no Pledgor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Administrative Agent shall have entered into such an
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agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this SectionΒ 5.01 shall be deemed to conform to the commercially reasonable standards as provided in SectionΒ 9-610(b) of the New York UCC or its equivalent in other jurisdictions.
SECTIONΒ 5.02. Application of Proceeds. The Administrative Agent shall promptly apply the proceeds, moneys or balances of any collection or sale of Collateral, as well as any Collateral consisting of cash, as follows:
FIRST, to the payment of all reasonable costs and expenses incurred by the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including without limitation all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Pledgor, any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Administrative Agent under any Loan Document in its capacity as such;
SECOND, to payment of all fees, indemnities and other amounts (other than principal and interest) payable to the Issuing Bank in capacity as such and of any amount required to be paid to the Issuing Bank by any Revolving Facility Lender pursuant to SectionΒ 2.05(d), (e)(ii) and (h)Β of the Credit Agreement and not paid by such Revolving Facility Lender (which shall be payable to the Administrative Agent if the Administrative Agent advanced such payment to the Issuing Bank in anticipation of such payment by such Revolving Facility Lender and otherwise, to the Issuing Bank);
THIRD, to the payment in full of the Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Obligations owed to them on the date of any such distribution, which in the case of Letters of Credit, shall be paid by deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash in U.S. Dollars equal to the aggregate L/C Exposure as of such date plus any accrued and unpaid interest thereon); and
FOURTH, to the Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
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SECTIONΒ 5.03. Grant of License to Use Intellectual Property. For the purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Pledgor hereby grants to (in the Administrative Agentβs sole discretion) a designee of the Administrative Agent or the Administrative Agent, for the ratable benefit of the Secured Parties, an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to any Pledgor) to use, license or sublicense any of the Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such Pledgor, wherever the same may be located, and including, without limitation, in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, the right to prosecute and maintain all intellectual property and the right to xxx for past infringement of the intellectual property. The use of such license by the Administrative Agent may be exercised, at the option of the Administrative Agent, upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Administrative Agent in accordance herewith shall be binding upon the Pledgors notwithstanding any subsequent cure of an Event of Default.
SECTIONΒ 5.04. Securities Act, etc. In view of the position of the Pledgors in relation to the Pledged Collateral, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar federal statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the βFederal Securities Lawsβ) with respect to any disposition of the Pledged Collateral permitted hereunder. Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Administrative Agent if the Administrative Agent were to attempt to dispose of all or any part of the Pledged Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Administrative Agent in any attempt to dispose of all or part of the Pledged Collateral under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Administrative Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Collateral or part thereof shall have been filed under the Federal Securities Laws or, to the extent applicable, Blue Sky or other state securities laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Pledgor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Administrative Agent shall incur no responsibility or liability for selling all or any part of the Pledged Collateral at a price that the Administrative Agent, in its sole and absolute discretion, may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 5.04 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Administrative Agent sells.
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SECTIONΒ 5.05. Registration, etc. Each Pledgor agrees that, upon the occurrence and during the continuance of an Event of Default, if for any reason the Administrative Agent desires to sell any of the Pledged Collateral at a public sale, it will, at any time and from time to time, upon the written request of the Administrative Agent, use its commercially reasonable efforts to take or to cause the issuer of such Pledged Collateral to take such action and prepare, distribute and/or file such documents, as are required or advisable in the reasonable opinion of counsel for the Administrative Agent to permit the public sale of such Pledged Collateral. Each Pledgor further agrees to indemnify, defend and hold harmless the Administrative Agent, each other Secured Party, any underwriter and their respective officers, directors, affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses to the Administrative Agent of legal counsel), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to such Pledgor or the issuer of such Pledged Collateral by the Administrative Agent or any other Secured Party expressly for use therein. Each Pledgor further agrees, upon such written request referred to above, to use its commercially reasonable efforts to qualify, file or register, or cause the issuer of such Pledged Collateral to qualify, file or register, any of the Pledged Collateral under the Blue Sky or other securities laws of such states as may be reasonably requested by the Administrative Agent and keep effective, or cause to be kept effective, all such qualifications, filings or registrations. Each Pledgor will bear all costs and expenses of carrying out its obligations under this SectionΒ 5.05. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this SectionΒ 5.05 only and that such failure would not be adequately compensable in damages and, therefore, agrees that its agreements contained in this SectionΒ 5.05 may be specifically enforced.
Indemnity, Subrogation and Subordination
SECTIONΒ 6.01. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 6.03), the Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement in respect of any Obligation of the Borrower, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Pledgor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Security Document to satisfy in whole or in part an Obligation of the Borrower, the Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.
SECTIONΒ 6.02. Contribution and Subrogation. Each Guarantor (a βContributing Guarantorβ) agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation or assets of any other Guarantor shall be sold pursuant to any Security Document to satisfy any Obligation owed to any Secured Party and such other Guarantor (the βClaiming Guarantorβ) shall not have been fully indemnified by the Borrower as provided in Section 6.01, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment or
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the greater of the book value or the fair market value of such assets, as applicable, in each case multiplied by a fraction of which the numerator shall be the net worth of such Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 7.16, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the extent of such payment.
SECTIONΒ 6.03. Subordination. (a)Β Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation of the Pledgor under applicable law or otherwise shall be fully subordinated to the payment in full in cash or immediatelyβ available funds of the Obligations (other than contingent or unliquidated obligations or liabilities). No failure on the part of the Borrower or any Guarantor to make the payments required by Sections 6.01 and 6.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.
(b) Each Guarantor hereby agrees that all Indebtedness and other monetary obligations owed by it to any other Guarantor or any Subsidiary shall be fully subordinated to the payment in full in cash or immediately available funds of the Obligations (other than contingent or unliquidated obligations or liabilities).
SECTIONΒ 7.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Subsidiary Party shall be given to it in care of the Borrower, with such notice to be given as provided in Section 9.01 of the Credit Agreement.
SECTIONΒ 7.02. Security Interest Absolute. All rights of the Administrative Agent hereunder, the Security Interest, the security interest in the Pledged Collateral and all obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Obligations or this Agreement (other than a defense of payment or performance).
SECTIONΒ 7.03. Limitation By Law. All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law that may be controlling and to be limited to the extent necessary so that they shall not render this Agreement invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.
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SECTIONΒ 7.04. Binding Effect; Several Agreement. This Agreement shall become effective as to any party to this Agreement when a counterpart hereof executed on behalf of such party shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such party and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such party, the Administrative Agent and the other Secured Parties and their respective permitted successors and assigns, except that no party shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each party and may be amended, modified, supplemented, waived or released with respect to any party without the approval of any other party and without affecting the obligations of any other party hereunder.
SECTIONΒ 7.05. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Pledgor or the Administrative Agent that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and assigns. The Administrative Agent hereunder shall at all times be the same person that is the Administrative Agent under the Credit Agreement. Written notice of resignation by the Administrative Agent pursuant to the Credit Agreement shall also constitute notice of resignation as the Administrative Agent under this Agreement. Upon the acceptance of any appointment as the Administrative Agent under the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent pursuant hereto.
SECTIONΒ 7.06. Administrative Agentβs Fees and Expenses; Indemnification. (a)Β The parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its expenses incurred hereunder as provided in Section 9.05 of the Credit Agreement.
(b) Without limitation of its indemnification obligations under the other Loan Documents, in addition to such obligations, each Pledgor jointly and severally agrees to indemnify the Administrative Agent and the other Indemnitees (as defined in SectionΒ 9.05 of the Credit Agreement) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of, (i)Β the execution, delivery or performance of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and other transactions contemplated hereby, (ii)Β the use of proceeds of the Loans or the use of any Letter of Credit or (iii)Β any claim, litigation, investigation or proceeding relating to any of the foregoing, or to the Collateral, whether or not any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this SectionΒ 7.06 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions contemplated
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hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or any other Secured Party. All amounts due under this SectionΒ 7.06 shall be payable on written demand therefor.
SECTIONΒ 7.07. Administrative Agent Appointed Attorney-in-Fact. Each Pledgor hereby appoints the Administrative Agent the attorney-in-fact of such Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Administrative Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Administrative Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Administrative Agentβs name or in the name of such Pledgor, (a) to receive, endorse, assign or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof, (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to ask for, demand, xxx for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral; (d) to sign the name of any Pledgor on any invoice or xxxx of lading relating to any of the Collateral; (e) to send verifications of Accounts to any Account Debtor; (f) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (g) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (h) to notify, or to require any Pledgor to notify, Account Debtors to make payment directly to the Administrative Agent; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Administrative Agent were the absolute owner of the Collateral for all purposes; provided, that nothing herein contained shall be construed as requiring or obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Administrative Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Administrative Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct.
SECTIONΒ 7.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTIONΒ 7.09. Waivers; Amendment. (a)Β No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies of the Administrative Agent, any Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers
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or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)Β of this SectionΒ 7.09, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with SectionΒ 9.08 of the Credit Agreement.
SECTIONΒ 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATNE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.
SECTIONΒ 7.11. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTIONΒ 7.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in Section 7.04. Delivery of an executed counterpart to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed original.
SECTIONΒ 7.13. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTIONΒ 7.14. Jurisdiction; Consent to Service of Process. (a)Β Each party to this Agreement hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
Β
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may be heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Pledgor, or its properties, in the courts of any jurisdiction.
(b) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTIONΒ 7.15. Termination or Release. (a) This Agreement, the guarantees made herein, the pledges made herein, the Security Interest and all other security interests granted hereby shall terminate when all the Loan Document Obligations (other than contingent or unliquidated obligations or liabilities) have been paid in full in cash or immediately available funds and the Lenders have no further commitment to lend under the Credit Agreement, the L/C Exposure has been reduced to zero and each Issuing Bank has no further obligations to issue Letters of Credit under the Credit Agreement.
(b) A Subsidiary Party shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Subsidiary Party shall be automatically released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Subsidiary Party ceases to be a Subsidiary of the Borrower or otherwise ceases to be a Pledgor; provided that the Required Lenders shall have consented to such transaction (to the extent such consent is required by the Credit Agreement) and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under the Credit Agreement to any person that is not a Pledgor, or upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to SectionΒ 9.08 of the Credit Agreement, the security interest in such Collateral shall be automatically released.
(d) In connection with any termination or release pursuant to paragraph (a), (b)Β or (c)Β of this SectionΒ 7.15, the Administrative Agent shall execute and deliver to any Pledgor, at such Pledgorβs, expense all documents that such Pledgor shall reasonably request to evidence such termination or release (including, without limitation, UCC termination statements), and will duly assign and transfer to such Pledgor, such of the Pledged Collateral that may be in the possession of the Administrative Agent and has not theretofore been sold or otherwise applied or released pursuant to this Agreement; provided, that the Administrative Agent shall not be required to take any action under this SectionΒ 7.15(d) unless such Pledgor shall have delivered to the Administrative Agent together with such request, which may be incorporated into such request, (i)Β a reasonably detailed description of the Collateral, which in any event shall be sufficient to effect the appropriate termination or release without affecting any other Collateral, and (ii)Β a certificate of a Responsible Officer of the Borrower or such Pledgor certifying that the transaction giving rise to such termination or release is permitted by the Credit Agreement and
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was consummated in compliance with the Loan Documents. Any execution and delivery of documents pursuant to this SectionΒ 7.15 shall be without recourse to or warranty by the Administrative Agent.
SECTIONΒ 7.16. Additional Subsidiaries. Upon execution and delivery by the Administrative Agent and any Subsidiary that is required to become a party hereto by Section 5.11 of the Credit Agreement of an instrument in the form of Exhibit I hereto, such subsidiary shall become a Subsidiary Party hereunder with the same force and effect as if originally named as a Subsidiary Party herein. The execution and delivery of any such instrument shall not require the consent of any other party to this Agreement. The rights and obligations of each party to this Agreement shall remain in full force and effect notwithstanding the addition of any new party to this Agreement.
SECTION 7.17. Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to time, 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 and other indebtedness at any time owing by such Lender or such Issuing Bank to or for the credit or the account of any party to this Agreement against any of and all the obligations of such party now or hereafter existing under this Agreement owed to such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section 7.17 are in addition to other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank may have. [Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Β
AFFINION GROUP, INC. | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
AFFINION GROUP HOLDINGS, INC. | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
Β
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AFFINION AUTO SERVICES, INC. AFFINION DATA SERVICES, INC. AFFINION GROUP, LLC AFFINION MEMBERSHIP SERVICES AFFINION PUBLISHING, INC. BENEFIT CONSULTANTS MEMBERSHIP, INC. XXXXXXXX AGENCY INC. COMP-U-CARD SERVICES, LLC CREDENTIALS SERVICES INTERNATIONAL, INC. LONG TERM PREFERRED CARE, INC. MCM GROUP, LTD. NGI HOLDINGS, INC. PREFERRED CARE AGENCY, INC. PROGENY MARKETING INNOVATIONS OF KENTUCKY, INC. PROGENY MARKETING INNOVATIONS, INC. SAFECARD SERVICES, INCORPORATED TRAVELERβS ADVANTAGE SERVICES, INC. TRILEGIANT AUTO SERVICES, INC. TRILEGIANT CORPORATION TRILEGIANT INSURANCE SERVICES, INC. TRILEGIANT LOYALTY SOLUTIONS, INC. TRILEGIANT MARKETING SERVICES, INC. TRILEGIANT RETAIL SERVICES, INC. TRL GROUP, INC. UNITED BANK CLUB ASSOCIATION, INC. | ||||
By: |
Β | Β Β | ||
Β | Name: | |||
Β | Title: |
CUC ASIA HOLDINGS, | ||||
Β | By: |
Β | Comp-U-Card Services, LLC, its General Partner |
Β | By: |
Β | Β Β | |
Β | Β | Name: | ||
Β | Β | Title: |
Β
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CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
Β
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Exhibit I
to Guarantee and
Collateral Agreement
SUPPLEMENT NO. Β Β Β Β Β Β Β Β Β Β Β Β dated as ofΒ Β Β Β Β Β Β Β Β Β Β Β (this βSupplementβ), to the Guarantee and Collateral Agreement dated as of OctoberΒ 17, 2005 (the βGuarantee and Collateral Agreementβ), among AFFINION GROUP, INC., a Delaware corporation (the βBorrowerβ), AFFINION GROUP HOLDINGS, INC., a Delaware corporation (βHoldingsβ), each Subsidiary Party thereto and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the βAdministrative Agentβ) for the Secured Parties (as defined herein).
A. Reference is made to the Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, supplemented, waived or otherwise modified from time to time, the βCredit Agreementβ), among Holdings, the Borrower, the Lenders party thereto from time to time, the Administrative Agent, Deutsche Bank Securities Inc., as syndication agent, Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents and Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners (in such capacity, the βJoint Lead Arrangersβ).
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Guarantee and Collateral Agreement referred to therein.
C. The Guarantors have entered into the Guarantee and Collateral Agreement in order to induce the Lenders to make Loans and each Issuing Bank to issue Letters of Credit. SectionΒ 7.16 of the Guarantee and Collateral Agreement provides that additional Subsidiaries may become Subsidiary Parties under the Guarantee and Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the βNew Subsidiaryβ) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Party under the Guarantee and Collateral Agreement in order to induce the Lenders to make additional Loans and each Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Subsidiary agree as follows:
SECTIONΒ 1. In accordance with SectionΒ 7.16 of the Guarantee and Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party and a Pledgor under the Guarantee and Collateral Agreement with the same force and effect as if originally named therein as a Subsidiary Party and a Pledgor, and the New Subsidiary hereby (a)Β agrees to all the terms and provisions of the Guarantee and Collateral Agreement applicable to it as a Subsidiary Party and Pledgor thereunder and (b)Β represents and warrants that the representations and warranties made by it as a Pledgor thereunder are true and correct, in all material respects, on and as of the date hereof. In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Obligations (as defined in the Guarantee and Collateral Agreement), does hereby create and grant to the Administrative Agent, its successors
Β
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and assigns, for the ratable benefit of the Secured Parties, their successors and assigns, a security interest in and Lien on all the New Subsidiaryβs right, title and interest in and to the Collateral (as defined in the Guarantee and Collateral Agreement) of the New Subsidiary. Each reference to a βSubsidiary Partyβ or a βPledgorβ in the Guarantee and Collateral Agreement shall be deemed to include the New Subsidiary. The Guarantee and Collateral Agreement is hereby incorporated herein by reference.
SECTIONΒ 2. The New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditorsβ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
SECTIONΒ 3. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. This Supplement shall become effective when (a) the Administrative Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and (b) the Administrative Agent has executed a counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Article 9 Collateral of the New Subsidiary, (b) set forth on Schedule II attached hereto is a true and correct schedule of all the Pledged Securities of the New Subsidiary and (c) set forth under its signature hereto, is the true and correct legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and Collateral Agreement shall remain in full force and effect.
SECTIONΒ 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTIONΒ 7. In the event any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee and Collateral Agreement shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTIONΒ 8. All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Guarantee and Collateral Agreement.
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SECTION 9. The New Subsidiary agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this Supplement to the Guarantee and Collateral Agreement as of the day and year first above written.
Β
[Name of New Subsidiary] | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
Legal Name: | ||
Jurisdiction of Formation: | ||
Location of Chief | ||
Executive Office: |
Β
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CREDIT SUISSE, CAYMAN ISLANDS | ||
By: |
Β | Β Β |
Β | Name: | |
Β | Title: | |
By: |
Β | Β Β |
Β | Name: | |
Β | Title: |
Β
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Schedule I
to Supplement No.Β Β Β Β Β Β Β Β Β Β Β Β to the
Guarantee and
Collateral Agreement
Β
LOCATION OF ARTICLE 9 COLLATERAL |
Description |
Β Β | Location |
Β
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Schedule II to
Supplement No.Β Β Β Β Β Β Β Β Β Β Β Β
to the Guarantee and
Collateral Agreement
Β
Pledged Securities of the New Subsidiary | ||||||
EQUITY INTERESTS | ||||||
Number of Issuer Certificate |
Β Β | Registered Owner |
Β Β | NumberΒ andΒ ClassΒ of Equity Interest |
Β Β | PercentageΒ ofΒ Equity Interests |
DEBT SECURITIES | ||||||
Issuer |
Β Β | Principal Amount |
Β Β | Date of Note | Β Β | MaturityΒ Date |
OTHER PROPERTY |
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EXHIBIT E
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, the βIP Security Agreementβ) dated OctoberΒ 17, 2005, is made by the Persons listed on the signature pages hereof (collectively, the βGrantorsβ) in favor of Credit Suisse, Cayman Islands Branch (βCredit Suisseβ), as administrative agent (the βAdministrative Agentβ) for the Secured Parties (as defined in the Guarantee and Collateral Agreement referred to below).
WHEREAS, Affinion Group, Inc., a Delaware corporation, has entered into a Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, amended and restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), with Affinion Group Holdings, Inc., a Delaware corporation (βHoldingsβ), the Lenders from time to time party thereto, Credit Suisse, the Administrative Agent, Deutsche Bank Securities Inc., as syndication agent (in such capacity, the βSyndication Agentβ), Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents (in such capacity, each, a βDocumentation Agentβ and together, the βDocumentation Agentsβ), Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners (in such capacity, the βJoint Lead Arrangersβ). Terms defined in the Credit Agreement and not otherwise defined herein are used herein as defined in the Credit Agreement.
WHEREAS, as a condition precedent to the making of Loans and the issuance of Letters of Credit by the Lenders under the Credit Agreement and the entry into Swap Agreements by Lenders or Affiliates of Lenders from time to time, each Grantor has executed and delivered that certain Guarantee and Collateral Agreement dated OctoberΒ 17, 2005 among the Grantors and the Administrative Agent (as amended, amended and restated, supplemented or otherwise modified from time to time, the βGuarantee and Collateral Agreementβ).
WHEREAS, under the terms of the Guarantee and Collateral Agreement, the Grantors have granted to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in, among other property, certain intellectual property of the Grantors, and have agreed as a condition thereof to execute this IP Security Agreement for recording with the U.S. Patent and Trademark Office, the United States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor agrees as follows:
SECTIONΒ 1. Grant of Security. Each Grantor hereby grants to the Administrative Agent for the ratable benefit of the Secured Parties a security interest in all of such Grantorβs right, title and interest in and to the following (the βCollateralβ):
(i) the patents and patent applications set forth in Schedule A hereto (the βPatentsβ);
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(ii) the trademark and service xxxx registrations and applications set forth in Schedule B hereto (provided that no security interest shall be granted in United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law), together with the goodwill symbolized thereby (the βTrademarksβ);
(iii) all copyrights, whether registered or unregistered, now owned or hereafter acquired by such Grantor, including, without limitation, the copyright registrations and applications and exclusive copyright licenses set forth in Schedule C hereto (the βCopyrightsβ);
(iv) all reissues, divisions, continuations, continuations-in-part, extensions, renewals and reexaminations of any of the foregoing, all rights in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto;
(v) any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to xxx for and collect, or otherwise recover, such damages; and
(vi) any and all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the Collateral of or arising from any of the foregoing.
Notwithstanding anything to the contrary, in no event shall the term βcopyright licenseβ include any license to the extent, but only to the extent, that the granting of a security interest in the rights under the terms of such license result in a breach of the terms of, or constitute a default under, such license (other than to the extent that any such term would be rendered ineffective pursuant to the Uniform Commercial Code or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the term βcopyright licenseβ shall include all such rights and interests as if such provision had never been in effect.
SECTION 2. Security for Obligations. The grant of a security interest in, the Collateral by each Grantor under this IP Security Agreement secures the payment of all Obligations of such Grantor now or hereafter existing under or in respect of the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, this IP Security Agreement secures, as to each Grantor, the payment of all amounts that constitute part of the Obligations and that would be owed by such Grantor to any Secured Party under the Loan Documents but for the fact that such Obligations are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving a Loan Party.
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SECTION 3. Recordation. Each Grantor authorizes and requests that the Register of Copyrights, the Commissioner for Patents and the Commissioner for Trademarks and any other applicable government officer record this IP Security Agreement.
SECTION 4. Execution in Counterparts. This IP Security Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SECTION 5. Grants, Rights and Remedies. This IP Security Agreement has been entered into in conjunction with the provisions of the Guarantee and Collateral Agreement. Each Grantor does hereby acknowledge and confirm that the grant of the security interest hereunder to, and the rights and remedies of, the Administrative Agent with respect to the Collateral are more fully set forth in the Guarantee and Collateral Agreement, the terms and provisions of which are incorporated herein by reference as if fully set forth herein.
SECTION 6. Governing Law. This IP Security Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, each Grantor has caused this IP Security Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
Β
AFFINION GROUP, INC. | ||
By |
Β | Β Β |
Β | Name: | |
Β | Title: | |
Address for Notices: | ||
Β Β | ||
Β Β | ||
Β Β | ||
AFFINION GROUP HOLDINGS, INC. | ||
By |
Β | Β Β |
Β | Name: | |
Β | Title: | |
Address for Notices: | ||
Β Β | ||
Β Β | ||
Β Β | ||
[NAME OF GRANTOR] | ||
By |
Β | Β Β |
Β | Name: | |
Β | Title: | |
Address for Notices: | ||
Β Β | ||
Β Β | ||
Β Β |
Β
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Exhibit A to the
IP Security Agreement
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT (this βIP Security Agreement Supplementβ) dated Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β , 200Β Β Β Β , is made by the Person listed on the signature page hereof (the βGrantorβ) in favor of Credit Suisse, Cayman Islands Branch (βCredit Suisseβ), as administrative agent (the βAdministrative Agentβ) for the Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS, Affinion Group, Inc., a Delaware corporation, has entered into a Credit Agreement dated as of OctoberΒ 17, 2005 (as amended, amended and restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), with Affinion Group Holdings, Inc., a Delaware corporation (βHoldingsβ), the Lenders from time to time party thereto, Credit Suisse, the Administrative Agent, Deutsche Bank Securities Inc., as syndication agent (in such capacity, the βSyndication Agentβ), Bank of America, N.A. and BNP Paribas Securities Corp., as documentation agents (in such capacity, each, a βDocumentation Agentβ and together, the βDocumentation Agentsβ), Credit Suisse First Boston LLC and Deutsche Bank Securities Inc., as joint lead arrangers and joint bookrunners (in such capacity, the βJoint Lead Arrangersβ). Terms defined in the Credit Agreement and not otherwise defined herein are used herein as defined in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Grantor and certain other Persons have executed and delivered that certain Guarantee and Collateral Agreement dated OctoberΒ 17, 2005 made by the Grantor and such other Persons to the Administrative Agent (as amended, amended and restated, supplemented or otherwise modified from time to time, the βGuarantee and Collateral Agreementβ) and that certain Intellectual Property Security Agreement dated OctoberΒ 17, 2005 (as amended, amended and restated, supplemented or otherwise modified from time to time, the βIP Security Agreementβ).
WHEREAS, under the terms of the Guarantee and Collateral Agreement, the Grantor has granted to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in the Additional Collateral (as defined in SectionΒ 1 below) of the Grantor and has agreed as a condition thereof to execute this IP Security Agreement Supplement for recording with the U.S. Patent and Trademark Office, the United States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor agrees as follows:
SECTIONΒ 1. Grant of Security. Each Grantor hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in all of such Grantorβs right, title and interest in and to the following (the βCollateralβ):
(i) the patents and patent applications set forth in Schedule A hereto (the βPatentsβ);
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(ii) the trademark and service xxxx registrations and applications set forth in Schedule B hereto (provided that no security interest shall be granted in United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law), together with the goodwill symbolized thereby (the βTrademarksβ);
(iii) the copyright registrations and applications and exclusive copyright licenses set forth in Schedule C hereto (the βCopyrightsβ);
(iv) all reissues, divisions, continuations, continuations-in-part, extensions, renewals and reexaminations of any of the foregoing, all rights in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto;
(v) all any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to xxx for and collect, or otherwise recover, such damages; and
(vi) any and all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the foregoing or arising from any of the foregoing.
Notwithstanding anything to the contrary, in no event shall the term βcopyright licenseβ include any license to the extent, but only to the extent, that the granting of a security interest in the rights under the terms of such license result in a breach of the terms of, or constitute a default under, such license (other than to the extent that any such term would be rendered ineffective pursuant to the Uniform Commercial Code or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the term βcopyright licenseβ shall include all such rights and interests as if such provision had never been in effect.
SECTIONΒ 2. Security for Obligations. The grant of a security interest in the Additional Collateral by the Grantor under this IP Security Agreement Supplement secures the payment of all Obligations of the Grantor now or hereafter existing under or in respect of the Loan Documents, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes of action, costs, expenses or otherwise.
SECTIONΒ 3. Recordation. The Grantor authorizes and requests that the Register of Copyrights, the Commissioner for Patents and the Commissioner for Trademarks and any other applicable government officer to record this IP Security Agreement Supplement.
SECTIONΒ 4. Grants, Rights and Remedies. This IP Security Agreement Supplement has been entered into in conjunction with the provisions of the Guarantee and Collateral Agreement. The Grantor does hereby acknowledge and confirm that the grant of the security
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interest hereunder to, and the rights and remedies of, the Administrative Agent with respect to the Additional Collateral are more fully set forth in the Guarantee and Agreement, the terms and provisions of which are incorporated herein by reference as if fully set forth herein.
SECTIONΒ 5. Governing Law. This IP Security Agreement Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the Grantor has caused this IP Security Agreement Supplement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
Β
By |
Β | Β | ||
Β | Β Β Β Β Name: |
Β | ||
Β | Β Β Β Β Title: |
Β | ||
AddressΒ forΒ Notices: | ||||
Β | ||||
Β | ||||
Β |