EXHIBIT 10.22
EXECUTION COPY
CUSIP Number: _____________
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$30,000,000
CREDIT AGREEMENT
dated as of September 30, 2004,
by and among
BLACKBAUD, INC.,
as Borrower,
the Lenders referred to herein,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
Swingline Lender and Issuing Lender
WACHOVIA CAPITAL MARKETS, LLC
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................... 1
SECTION 1.1 Definitions............................................................................. 1
SECTION 1.2 Other Definitions and Provisions........................................................ 17
SECTION 1.3 Accounting Terms........................................................................ 17
SECTION 1.4 UCC Terms............................................................................... 17
SECTION 1.5 Rounding................................................................................ 18
SECTION 1.6 References to Agreement and Laws........................................................ 18
SECTION 1.7 Times of Day............................................................................ 18
SECTION 1.8 Letter of Credit Amounts................................................................ 18
ARTICLE II REVOLVING CREDIT FACILITY................................................................ 18
SECTION 2.1 Revolving Credit Loans.................................................................. 18
SECTION 2.2 Swingline Loans......................................................................... 19
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans.................... 20
SECTION 2.4 Repayment of Loans...................................................................... 21
SECTION 2.5 Permanent Reduction of the Aggregate Commitment......................................... 22
SECTION 2.6 Termination of Revolving Credit Facility................................................ 22
ARTICLE III LETTER OF CREDIT FACILITY............................................................... 23
SECTION 3.1 L/C Commitment.......................................................................... 23
SECTION 3.2 Procedure for Issuance of Letters of Credit............................................. 23
SECTION 3.3 Commissions and Other Charges........................................................... 24
SECTION 3.4 L/C Participations...................................................................... 24
SECTION 3.5 Reimbursement Obligation of the Borrower................................................ 25
SECTION 3.6 Obligations Absolute.................................................................... 26
SECTION 3.7 Effect of Letter of Credit Application.................................................. 26
ARTICLE IV GENERAL LOAN PROVISIONS.................................................................. 26
SECTION 4.1 Interest................................................................................ 26
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans................................ 28
SECTION 4.3 Fees.................................................................................... 28
SECTION 4.4 Manner of Payment....................................................................... 29
SECTION 4.5 Evidence of Indebtedness................................................................ 30
SECTION 4.6 Adjustments............................................................................. 30
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the
Administrative Agent................................................................. 31
SECTION 4.8 Changed Circumstances................................................................... 32
SECTION 4.9 Indemnity............................................................................... 32
SECTION 4.10 Increased Costs......................................................................... 33
SECTION 4.11 Taxes................................................................................... 34
SECTION 4.12 Mitigation Obligations; Replacement of Lenders.......................................... 36
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ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING................................................. 37
SECTION 5.1 Closing.................................................................................... 37
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit..................................... 37
SECTION 5.3 Conditions to All Extensions of Credit..................................................... 40
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER.............................................. 41
SECTION 6.1 Representations and Warranties............................................................. 41
SECTION 6.2 Survival of Representations and Warranties, Etc............................................ 48
ARTICLE VII FINANCIAL INFORMATION AND NOTICES.......................................................... 48
SECTION 7.1 Financial Statements and Projections....................................................... 48
SECTION 7.2 Officer's Compliance Certificate........................................................... 49
SECTION 7.3 Accountants' Certificate................................................................... 49
SECTION 7.4 Other Reports.............................................................................. 50
SECTION 7.5 Notice of Litigation and Other Matters..................................................... 50
SECTION 7.6 Accuracy of Information.................................................................... 51
ARTICLE VIII AFFIRMATIVE COVENANTS..................................................................... 51
SECTION 8.1 Preservation of Existence and Related Matters.............................................. 51
SECTION 8.2 Maintenance of Property.................................................................... 51
SECTION 8.3 Insurance.................................................................................. 51
SECTION 8.4 Accounting Methods and Financial Records................................................... 52
SECTION 8.5 Payment and Performance of Obligations..................................................... 52
SECTION 8.6 Compliance With Laws and Approvals......................................................... 52
SECTION 8.7 Environmental Laws......................................................................... 52
SECTION 8.8 Compliance with ERISA...................................................................... 52
SECTION 8.9 Compliance With Agreements................................................................. 53
SECTION 8.10 Visits and Inspections..................................................................... 53
SECTION 8.11 Additional Subsidiaries.................................................................... 53
SECTION 8.12 Use of Proceeds............................................................................ 53
SECTION 8.13 Further Assurances......................................................................... 53
ARTICLE IX FINANCIAL COVENANTS......................................................................... 54
SECTION 9.1 Leverage Ratio............................................................................. 54
SECTION 9.2 Interest Coverage Ratio.................................................................... 54
SECTION 9.3 Net Worth.................................................................................. 54
ARTICLE X NEGATIVE COVENANTS........................................................................... 54
SECTION 10.1 Limitations on Indebtedness................................................................ 54
SECTION 10.2 Limitations on Liens....................................................................... 55
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions............................... 56
SECTION 10.4 Limitations on Mergers and Liquidation..................................................... 58
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SECTION 10.5 Limitations on Sale of Assets...................................................... 59
SECTION 10.6 Limitations on Dividends and Distributions......................................... 59
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock.............................. 60
SECTION 10.8 Transactions with Affiliates....................................................... 60
SECTION 10.9 Certain Accounting Changes; Organizational Documents............................... 61
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated Indebtedness................. 61
SECTION 10.11 Restrictive Agreements............................................................ 61
SECTION 10.12 Nature of Business................................................................ 61
ARTICLE XI DEFAULT AND REMEDIES................................................................ 61
SECTION 11.1 Events of Default.................................................................. 61
SECTION 11.2 Remedies........................................................................... 64
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc.................................... 65
SECTION 11.4 Crediting of Payments and Proceeds................................................. 65
SECTION 11.5 Administrative Agent May File Proofs of Claim...................................... 66
ARTICLE XII THE ADMINISTRATIVE AGENT........................................................... 67
SECTION 12.1 Appointment........................................................................ 67
SECTION 12.2 Delegation of Duties............................................................... 67
SECTION 12.3 Exculpatory Provisions............................................................. 67
SECTION 12.4 Reliance by the Administrative Agent............................................... 67
SECTION 12.5 Notice of Default.................................................................. 68
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders......................... 68
SECTION 12.7 Indemnification.................................................................... 69
SECTION 12.8 The Administrative Agent in Its Individual Capacity................................ 69
SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent............ 70
SECTION 12.10 Guaranty Matters.................................................................. 71
SECTION 12.11 Other Agents, Arrangers and Managers.............................................. 71
ARTICLE XIII MISCELLANEOUS..................................................................... 71
SECTION 13.1 Notices........................................................................... 71
SECTION 13.2 Amendments, Waivers and Consents.................................................. 72
SECTION 13.3 Expenses; Indemnity............................................................... 74
SECTION 13.4 Set-off........................................................................... 74
SECTION 13.5 Governing Law..................................................................... 75
SECTION 13.6 Jurisdiction and Venue............................................................ 75
SECTION 13.7 Binding Arbitration; Waiver of Jury Trial......................................... 75
SECTION 13.8 Reversal of Payments.............................................................. 77
SECTION 13.9 Injunctive Relief; Punitive Damages............................................... 77
SECTION 13.10 Accounting Matters................................................................ 77
SECTION 13.11 Successors and Assigns; Participations............................................ 78
SECTION 13.12 Confidentiality................................................................... 80
SECTION 13.13 Performance of Duties............................................................. 81
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SECTION 13.14 All Powers Coupled with Interest................................................ 81
SECTION 13.15 Survival of Indemnities......................................................... 81
SECTION 13.16 Titles and Captions............................................................. 81
SECTION 13.17 Severability of Provisions...................................................... 81
SECTION 13.18 Counterparts.................................................................... 81
SECTION 13.19 Integration..................................................................... 82
SECTION 13.20 Term of Agreement............................................................... 82
SECTION 13.21 Advice of Counsel, No Strict Construction....................................... 82
SECTION 13.22 Inconsistencies with Other Documents; Independent Effect of Covenants........... 82
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EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Assumption
Exhibit H - Form of Guaranty Agreement
SCHEDULES
Schedule 1.1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Indebtedness and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 10.2 - Existing Liens
Schedule 10.3 - Existing Loans, Advances and Investments
Schedule 10.8 - Transactions with Affiliates
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CREDIT AGREEMENT, dated as of September 30, 2004, by and among BLACKBAUD,
INC., a Delaware corporation (the "Borrower"), the lenders who are or may become
a party to this Agreement (collectively, the "Lenders") and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, as Administrative Agent
for the Lenders.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend certain
credit facilities to the Borrower on the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this Agreement
shall have the meanings assigned to them below:
"Administrative Agent" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Administrative Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of the Borrower) which directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. The term "control" means (a)
the power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or otherwise modified at
any time or from time to time pursuant to the terms hereof. On the Closing Date,
the Aggregate Commitment shall be Thirty Million Dollars ($30,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" means the corresponding percentages per annum as set
forth below:
PRICING LEVEL LEVERAGE RATIO BASE RATE + LIBOR +
I Greater than 1.00 to 1.00 1.00% 2.00%
II Less than or equal to 1.00 to 1.00 0.50% 1.50%
The Applicable Margin shall be determined and adjusted quarterly on the date
(each a "Calculation Date") ten (10) Business Days after the date by which the
Borrower is required to provide an Officer's Compliance Certificate pursuant to
Section 7.2 for the most recently ended fiscal quarter of the Borrower;
provided, however, that (a) the Applicable Margin shall be based on Pricing
Level II until the first Calculation Date following receipt of the Officer's
Compliance Certificate for the fiscal quarter ended September 30, 2004 and,
thereafter the Pricing Level shall be determined by reference to the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Borrower preceding the applicable Calculation Date, and (b) if the Borrower
fails to provide the Officer's Compliance Certificate as required by Section 7.2
for the most recently ended fiscal quarter of the Borrower preceding the
applicable Calculation Date, the Applicable Margin from such Calculation Date
shall be based on Pricing Level I until such time as an appropriate Officer's
Compliance Certificate is provided, at which time the Pricing Level shall be
determined by reference to the Leverage Ratio as of the last day of the most
recently ended fiscal quarter of the Borrower preceding such Calculation Date.
The Applicable Margin shall be effective from one Calculation Date until the
next Calculation Date. Any adjustment in the Applicable Margin shall be
applicable to all Extensions of Credit then existing or subsequently made or
issued.
"Approved Fund" means any Person (other than a natural Person), including,
without limitation, any special purpose entity, that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business; provided,
that such Approved Fund must be administered by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Arbitration Rules" has the meaning assigned thereto in Section 13.7(a).
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 13.11), and accepted by the Administrative Agent,
in substantially the form of EXHIBIT G or any other form approved by the
Administrative Agent.
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"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease, the capitalized amount or principal
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease were accounted for as a Capital Lease.
"Bankruptcy Event of Default" means any Event of Default specified in
Section 11.1(j) or (k).
"Base Rate" means, at any time, the higher of (a) the Prime Rate and (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon the
Base Rate plus the Applicable Margin as provided in Section 4.1(a).
"Borrower" has the meaning assigned thereto in the introductory paragraph
hereto.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Calculation Date" has the meaning assigned thereto in the definition of
Applicable Margin.
"Capital Lease" means any lease of any property by the Borrower or any of
its Subsidiaries, as lessee, that should, in accordance with GAAP, be classified
and accounted for as a capital lease on a Consolidated balance sheet of the
Borrower and its Subsidiaries.
"Capital Stock" means (a) in the case of a corporation, capital stock, (b)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (c) in the case of a partnership, partnership interests (whether general
or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash on Hand" means as of any date of determination, the aggregate amount
of cash of the Borrower and its Subsidiaries as set forth in the most recent
consolidated balance sheet of the Borrower and its Subsidiaries.
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"Change in Control" means any event or series of events in which any
person or group of persons (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended) other than Xxxxxxx & Xxxxxxxx
Capital Partners III, L.P. and its affiliates, shall obtain ownership or control
in one or more series of transactions of more than thirty percent (30%) of the
Capital Stock or thirty percent (30%) of the voting power of the Borrower
entitled to vote in the election of members of the board of directors of the
Borrower or there shall have occurred under any indenture or other instrument
evidencing any Indebtedness in excess of $1,000,000 any "change in control" (as
defined in such indenture or other evidence of Indebtedness) obligating the
Borrower to repurchase, redeem or repay all or any part of the Indebtedness or
Capital Stock provided for therein.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Closing Date" means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied or waived
in all respects in a manner acceptable to the Administrative Agent, in its sole
discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans (including, without limitation, to participate in Swingline Loans) to
and issue or participate in Letters of Credit issued for the account of the
Borrower, in an aggregate principal or face amount at any time outstanding not
to exceed the amount set forth opposite such Lender's name on Schedule 1.1
hereto, as the same may be reduced or modified at any time or from time to time
pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Credit Facility" means, collectively, the Revolving Credit Facility, the
Swingline Facility and the L/C Facility.
"Credit Parties" means, collectively, the Borrower and the Guarantors.
"Default" means any of the events specified in Section 11.1 which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.
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"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, participations in L/C Obligations or
participations in Swingline Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless such amount is the subject of a good faith dispute, or (c)
has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Disputes" has the meaning set forth in Section 13.7.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Domestic Subsidiary" means any Subsidiary organized under the laws of any
political subdivision of the United States.
"EBITDA" means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP: (a) Net Income for such period plus (b) the sum of the
following to the extent deducted in determining Net Income: (i) income and
franchise taxes, (ii) Interest Expense, and (iii) amortization, depreciation and
other non-cash charges (including non-cash stock compensation charges) less (c)
interest income and any extraordinary gains.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) the Swingline Lender and the
Issuing Lender, and (iii) unless a Default or Event of Default has occurred and
is continuing, the Borrower (each such approval not to be unreasonably withheld
or delayed); provided that notwithstanding the foregoing, "Eligible Assignee"
shall not include the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower
or any ERISA Affiliate or (b) has at any time within the preceding six (6) years
been maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
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"Environmental Laws" means any and all federal, foreign, state, provincial
and local laws, statutes, ordinances, codes, rules, standards and regulations,
permits, licenses, approvals, interpretations and orders of courts or
Governmental Authorities, relating to the protection of human health or the
environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended or modified from time to time.
"ERISA Affiliate" means any Person who together with any Credit Party is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Board of
Governors of the Federal Reserve system (or any successor) for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.
"Event of Default" means any of the events specified in Section 11.1;
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) taxes imposed on
or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 4.12(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(or designates a new lending office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 4.11(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 4.11(a).
"Extensions of Credit" means, as to any Lender at any time, (a) an amount
equal to the sum of (i) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (ii) such Lender's Commitment
Percentage of the L/C Obligations then outstanding and (iii) such Lender's
Commitment Percentage of the Swingline Loans then
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outstanding, or (b) the making of any Loan or participation in any Letter of
Credit by such Lender, as the context requires.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediately preceding Business Day.
"Fee Letter" means the separate fee letter agreement executed by the
Borrower and the Administrative Agent and/or certain of its affiliates dated
June 1, 2004.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on December 31.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 13.10) consistent with the prior financial practice of the
Borrower and its Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
permits, licenses and exemptions of, registrations and filings with, and reports
to, all Governmental Authorities.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Guarantors" means each Material Subsidiary of the Borrower in existence
on the Closing Date or which becomes a party to a Guaranty Agreement pursuant to
Section 8.11.
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"Guaranty Agreement" means the unconditional guaranty agreement of even
date herewith executed by the Guarantors in favor of the Administrative Agent
for the ratable benefit of itself and the Lenders, substantially in the form of
EXHIBIT H, as amended, restated, supplemented or otherwise modified from time to
time.
"Guaranty Obligation" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) 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 to maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to any Interest Rate
Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.
"Hedging Obligations" means all existing or future payment and other
obligations owing by the Borrower under any Hedging Agreement (which such
Hedging Agreement is permitted hereunder) with any Person that is a Lender or an
Affiliate of a Lender at the time such Hedging Agreement is executed.
8
"Indebtedness" means, with respect to the Borrower and its Subsidiaries at
any date and without duplication, the sum of the following calculated in
accordance with GAAP:
(a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person;
(b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition, earn-out or similar agreements), except trade payables
arising in the ordinary course of business not more than one hundred eighty
(180) days past due;
(c) the Attributable Indebtedness of such Person with respect to such
Person's obligations in respect of Capital Leases and Synthetic Leases
(regardless of whether accounted for as indebtedness under GAAP);
(d) all Indebtedness of any other Person secured by a Lien on any asset
owned or being purchased by the Borrower or any of its Subsidiaries (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by the
Borrower or any of its Subsidiaries or is limited in recourse;
(e) all Guaranty Obligations of any such Person;
(f) all obligations, contingent or otherwise, of any such Person relative
to the face amount of letters of credit, whether or not drawn, including,
without limitation, any Reimbursement Obligation, and banker's acceptances
issued for the account of any such Person;
(g) all obligations of any such Person to redeem, repurchase, exchange,
defease or otherwise make payments in respect of Capital Stock of such Person;
and
(h) all net obligations incurred by any such Person pursuant to Hedging
Agreements.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation of any Person
under any Hedging Agreement on any date shall be deemed to be the Termination
Value thereof as of such date.
"Indemnified Taxes" means Taxes and Other Taxes other than Excluded Taxes.
"Interest Expense" means, with respect to the Borrower and its
Subsidiaries for any period, the gross interest expense (including, without
limitation, interest expense attributable to Capital Leases, Synthetic Leases
and all net payment obligations pursuant to Hedging Agreements) of the Borrower
and its Subsidiaries, all determined for such period on a Consolidated basis,
without duplication, in accordance with GAAP.
9
"Interest Period" has the meaning assigned thereto in Section 4.1(b).
"Interest Rate Contract" means any interest rate swap agreement, interest
rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"ISP98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means Wachovia, in its capacity as issuer of any Letter
of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Five Million Dollars ($5,000,000)
and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant to
Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of Credit
and (b) the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders other
than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline Lender
unless the context otherwise requires) set forth on the signature pages hereto
and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to Section 13.11.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Extensions of Credit.
"Letter of Credit Application" means an application, in the form specified
by the Issuing Lender from time to time, requesting the Issuing Lender to issue
a Letter of Credit.
"Letters of Credit" has the meaning assigned thereto in Section 3.1.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does not
appear on Telerate Page 3750, then "LIBOR" shall be determined by the
Administrative
10
Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in minimum amounts of at least $5,000,000 would be offered by first
class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest
Period. Each calculation by the Administrative Agent of LIBOR shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to the
next higher 1/100th of 1%) determined by the Administrative Agent pursuant to
the following formula:
LIBOR
LIBOR Rate = ------------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon the
LIBOR Rate plus the Applicable Margin as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold mortgage,
lien, pledge, charge, security interest, hypothecation or encumbrance of any
kind in respect of such asset. For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
"Loan Documents" means, collectively, this Agreement, each Note, the
Letter of Credit Applications, the Guaranty Agreement and each other document,
instrument, certificate and agreement executed and delivered by the Borrower or
any Subsidiary thereof in connection with this Agreement or otherwise referred
to herein or contemplated hereby (excluding any Hedging Agreement), all as may
be amended, restated, supplemented or otherwise modified from time to time.
"Loans" means the collective reference to the Revolving Credit Loans and
the Swingline Loans and "Loan" means any of such Loans.
"Material Adverse Effect" means, with respect to the Borrower and its
Subsidiaries, a material adverse effect on (a) the properties, business,
operations or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, (b) the ability of any such Person to perform
its obligations under the Loan Documents to which it is a party, or (c) the
legality, validity, binding effect or enforceability of any Loan Document.
"Material Contract" means (a) any contract or other agreement, written or
oral, of the Borrower or any of its Subsidiaries involving monetary liability of
or to any such Person in an amount in excess of $1,000,000 per annum, or (b) any
other contract or agreement, written or oral, of the Borrower or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"Material Subsidiary" means any Domestic Subsidiary of the Borrower that
(a) individually (i) owns assets with a fair market value in excess of five
percent (5%) of the Consolidated assets of the Borrower and its Subsidiaries as
of the most recent Fiscal Year end or
11
(ii) accounted for more than five percent (5%) of the Net Income of the Borrower
and its Subsidiaries for the most recently ended Fiscal Year or (b) collectively
with all other Subsidiaries that are not Material Subsidiaries (i) owns assets
with a fair market value in excess of ten percent (10%) of the Consolidated
assets of the Borrower and its Subsidiaries as of the most recent Fiscal Year
end or (ii) accounted for more than ten percent (10%) of the Net Income of the
Borrower and its Subsidiaries for the most recently ended Fiscal Year.
"Maturity Date" means the earliest to occur of (a) September 30, 2007, (b)
the date of termination by the Borrower pursuant to Section 2.5, or (c) the date
of termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 11.2(a).
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.
"Net Income" means, with respect to the Borrower and its Subsidiaries, for
any period of determination, the net income (or loss) of the Borrower and its
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP; provided that there shall be excluded from Net Income (a) the net
income (or loss) of any Person (other than a Subsidiary which shall be subject
to clause (c) below), in which the Borrower or any of its Subsidiaries has a
joint interest with a third party, except to the extent such net income is
actually paid to the Borrower or any of its Subsidiaries by dividend or other
distribution during such period, (b) the net income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary of such Person or is merged
into or consolidated with such Person or any of its Subsidiaries or that
Person's assets are acquired by such Person or any of its Subsidiaries except to
the extent included pursuant to the foregoing clause (a), (c) the net income (if
positive) of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary to the Borrower or any of
its Subsidiaries of such net income (i) is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute rule or governmental regulation applicable to such
Subsidiary or (ii) would be subject to any taxes payable on such dividends or
distributions.
"Net Worth" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP: (a) total assets minus (b) total liabilities.
"Note" means a Revolving Credit Note or Swingline Note.
"Notice of Account Designation" has the meaning assigned thereto in
Section 2.3(b).
"Notice of Borrowing" has the meaning assigned thereto in Section 2.3(a).
"Notice of Conversion/Continuation" has the meaning assigned thereto in
Section 4.2.
12
"Notice of Prepayment" has the meaning assigned thereto in Section 2.4(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all Hedging Obligations and (d) all other fees and commissions
(including attorneys' fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by the
Borrower or any of its Subsidiaries to the Lenders or the Administrative Agent,
in each case under any Loan Document or otherwise, with respect to any Loan or
Letter of Credit of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note.
"Officer's Compliance Certificate" means a certificate of the chief
financial officer or the treasurer of the Borrower substantially in the form of
EXHIBIT F.
"Operating Lease" means, as to any Person as determined in accordance with
GAAP, any lease of property (whether real, personal or mixed) by such Person as
lessee which is not a Capital Lease.
"Other Taxes" means 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 under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Participant" has the meaning assigned thereto in Section 13.11(d).
"Payment Event of Default" means any Event of Default specified in Section
11.1(a) or (b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for the employees of the Borrower or any
ERISA Affiliates or (b) has at any time within the preceding six (6) years been
maintained for the employees of the Borrower or any of its current or former
ERISA Affiliates.
"Permitted Acquisitions" means the acquisitions permitted pursuant to
Section 10.3(h).
"Permitted Liens" means the Liens permitted pursuant to Section 10.2.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, governmental authority
or other entity.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in such prime rate occurs. The parties hereto
13
acknowledge that the rate announced publicly by Wachovia as its prime rate is an
index or base rate and shall not necessarily be its lowest or best rate charged
to its customers or other banks.
"Prior Facility" means the credit facility established pursuant to that
certain Credit Agreement dated October 13, 1999 by and among the Borrower, the
lenders party thereto and Bankers Trust Company as Administrative Agent and
terminated effective July 21, 2004.
"Register" has the meaning assigned thereto in Section 13.11(c).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Required Lenders" means, at any date, any combination of Lenders whose
Commitments aggregate at least sixty-six and two-thirds percent (66-2/3%) of the
Aggregate Commitment or, if the Credit Facility has been terminated pursuant to
Section 11.2, any combination of Lenders holding at least sixty-six and
two-thirds percent (66-2/3%) of the aggregate Extensions of Credit; provided
that the Commitment of, and the portion of the Extensions of Credit, as
applicable, held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Credit Party or any
other officer of a Credit Party reasonably acceptable to the Administrative
Agent. Any document delivered hereunder that is signed by a Responsible Officer
of a Credit Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Credit
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Credit Party.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II.
"Revolving Credit Loans" means any revolving loan made to the Borrower
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Note" means a promissory note made by the Borrower in
favor of a Lender evidencing the Revolving Credit Loans made by such Lender,
substantially in the form of EXHIBIT A-1 hereto, and any amendments, supplements
and modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"SEC" has the meaning assigned thereto in Section 5.2(e)(iv).
14
"Solvent" means, as to the Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) has assets having a
value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"Subordinated Indebtedness" means the collective reference to any
Indebtedness of the Borrower or any Subsidiary subordinated in right and time of
payment to the Obligations and containing such other terms and conditions, in
each case as are satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors or other managers of such corporation, partnership,
limited liability company or other entity is at the time owned by or the
management is otherwise controlled by such Person (irrespective of whether, at
the time, Capital Stock of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency). Unless otherwise
qualified references to "Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrower.
"Swingline Commitment" means the lesser of (a) Six Million Dollars
($6,000,000) and (b) the Aggregate Commitment.
"Swingline Facility" means the swingline facility established pursuant to
Section 2.2.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender to
the Borrower pursuant to Section 2.2, and all such swingline loans collectively
as the context requires.
"Swingline Note" means a promissory note made by the Borrower in favor of
the Swingline Lender evidencing Swingline Loans made by the Swingline Lender,
substantially in the form of EXHIBIT A-2 hereto, and any amendments, supplements
and modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with Section 12.9
or (b) the Maturity Date.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered
15
borrowed money indebtedness for tax purposes but is classified as an Operating
Lease in accordance with GAAP.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Event" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if the plan assets are not sufficient
to pay all plan liabilities, or (d) the institution of proceedings to terminate,
or the appointment of a trustee with respect to, any Pension Plan by the PBGC,
or (e) any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete
withdrawal of the Borrower of any ERISA Affiliate from a Multiemployer Plan if
withdrawal liability is asserted by such plan, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Termination Value" means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a), the amount(s)
determined as the xxxx-to-market value(s) for such Hedging Agreements, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
"Total Indebtedness" means, as of any date of determination with respect
to the Borrower and its Subsidiaries on a Consolidated basis without
duplication, the sum of all Indebtedness of the Borrower and its Subsidiaries.
"Uniform Customs" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), effective January, 1994 International Chamber of
Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of North
Carolina or appropriate governing state, as amended or modified from time to
time.
"United States" means the United States of America.
16
"Wachovia" means Wachovia Bank, National Association, a national banking
association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the shares
of Capital Stock of such Subsidiary are, directly or indirectly, owned or
controlled by the Borrower and/or one or more of its Wholly-Owned Subsidiaries
(except for directors' qualifying shares or other shares required by Applicable
Law to be owned by a Person other than the Borrower).
SECTION 1.2 Other Definitions and Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document: (a) the definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined, (b) whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms, (c) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation", (d) the word
"will" shall be construed to have the same meaning and effect as the word
"shall", (e) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (f) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (g) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (h) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (i) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (j) the term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form, (k) in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including", and (l) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
SECTION 1.3 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
financial statements required by Section 7.1(b), except as otherwise
specifically prescribed herein.
SECTION 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing
Date and not otherwise defined herein shall, unless the context otherwise
indicates, have the meanings
17
provided by those definitions. Subject to the foregoing, the term "UCC" refers,
as of any date of determination, to the UCC then in effect.
SECTION 1.5 Rounding. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.6 References to Agreement and Laws. Unless otherwise expressly
provided herein, (a) references to formation documents, governing documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Applicable Law
shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Applicable Law.
SECTION 1.7 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
SECTION 1.8 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of
this Agreement (including, without limitation, Section 10.6(c)), and in reliance
upon the representations and warranties set forth herein, each Lender severally
agrees to make Revolving Credit Loans to the Borrower from time to time from the
Closing Date through, but not including, the Maturity Date as requested by the
Borrower in accordance with the terms of Section 2.3; provided, that (a) the
aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Aggregate Commitment
less the sum of all outstanding Swingline Loans and L/C Obligations and (b) the
principal amount of outstanding Revolving Credit Loans from any Lender to the
Borrower shall not at any time exceed such Lender's Commitment less such
Lender's Commitment Percentage of outstanding L/C Obligations and outstanding
Swingline Loans. Each Revolving Credit Loan by a Lender shall be in a principal
amount equal to such Lender's Commitment Percentage of the aggregate principal
amount of Revolving Credit Loans requested on such occasion. Subject to
18
the terms and conditions hereof, the Borrower may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Maturity Date.
SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement
(including, without limitation, Section 10.6(c)), the Swingline Lender agrees to
make Swingline Loans to the Borrower from time to time from the Closing Date
through, but not including, the Swingline Termination Date; provided, that the
aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested), shall not exceed the lesser of (i) the
Aggregate Commitment less the sum of all outstanding Revolving Credit Loans and
the L/C Obligations and (ii) the Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand by
the Swingline Lender. Such refundings shall be made by the Lenders in accordance
with their respective Commitment Percentages and shall thereafter be reflected
as Revolving Credit Loans of the Lenders on the books and records of the
Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 1:00 p.m. on the next succeeding Business Day after such
demand is made. No Lender's obligation to fund its respective Commitment
Percentage of a Swingline Loan shall be affected by any other Lender's failure
to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender's
Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the Lenders
are not sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. In addition, the Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the Borrower with the
Swingline Lender (up to the amount available therein) in order to immediately
pay the Swingline Lender the amount of such Swingline Loans to the extent
amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion
of any such amount paid to the Swingline Lender shall be recovered by or on
behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the
loss of the amount so recovered shall be ratably shared among all the Lenders in
accordance with their respective Commitment Percentages (unless the amounts so
recovered by or on behalf of the Borrower pertain to a Swingline Loan extended
after the occurrence and during the continuance of an Event of Default of which
the Administrative Agent has received notice in the manner required pursuant to
Section 12.5 and which such Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans in accordance with the terms of this Section is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-
19
satisfaction of the conditions set forth in Article V. Further, each Lender
agrees and acknowledges that if prior to the refunding of any outstanding
Swingline Loans pursuant to this Section, a Bankruptcy Event of Default shall
have occurred, each Lender will, on the date the applicable Revolving Credit
Loan would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Commitment Percentage of
the aggregate amount of such Swingline Loan. Each Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation and upon receipt thereof the Swingline Lender will deliver to
such Lender a certificate evidencing such participation dated the date of
receipt of such funds and for such amount. Whenever, at any time after the
Swingline Lender has received from any Lender such Lender's participating
interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded).
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline
Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice substantially in the form attached hereto
as EXHIBIT B (a "Notice of Borrowing") not later than 11:00 a.m. (i) on the same
Business Day as each Base Rate Loan and each Swingline Loan and (ii) at least
three (3) Business Days before each LIBOR Rate Loan, of its intention to borrow,
specifying (A) the date of such borrowing, which shall be a Business Day, (B)
the amount of such borrowing, which shall be, (x) with respect to Base Rate
Loans (other than Swingline Loans) in an aggregate principal amount of
$2,500,000 or a whole multiple of $1,000,000 in excess thereof, (y) with respect
to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (z) with respect to Swingline Loans
in an aggregate principal amount of $100,000 or a whole multiple of $100,000 in
excess thereof, (C) whether such Loan is to be a Revolving Credit Loan or
Swingline Loan, (D) in the case of a Revolving Credit Loan whether the Loans are
to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate
Loan, the duration of the Interest Period applicable thereto. A Notice of
Borrowing received after 11:00 a.m. shall be deemed received on the next
Business Day. The Administrative Agent shall promptly notify the Lenders of each
Notice of Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later than
1:00 p.m. on the proposed borrowing date, (i) each Lender will make available to
the Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Commitment Percentage of the Revolving Credit Loans to be made on
such borrowing date and (ii) the Swingline Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
the Swingline Loans to be made on such borrowing date. The Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of each
borrowing requested pursuant to this Section in immediately available funds by
crediting or wiring such proceeds to the deposit account of the Borrower
identified in the most recent notice substantially in the form
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of Exhibit C hereto (a "Notice of Account Designation") delivered by the
Borrower to the Administrative Agent or as may be otherwise agreed upon by the
Borrower and the Administrative Agent from time to time. Subject to Section 4.7
hereof, the Administrative Agent shall not be obligated to disburse the portion
of the proceeds of any Revolving Credit Loan requested pursuant to this Section
to the extent that any Lender has not made available to the Administrative Agent
its Commitment Percentage of such Loan. Revolving Credit Loans to be made for
the purpose of refunding Swingline Loans shall be made by the Lenders as
provided in Section 2.2(b).
SECTION 2.4 Repayment of Loans.
(a) Repayment on Maturity Date. The Borrower hereby agrees to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on the
Maturity Date, and (ii) all Swingline Loans in accordance with Section 2.2(b),
together, in each case, with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at any time the
outstanding principal amount of all Revolving Credit Loans plus the sum of all
outstanding Swingline Loans and L/C Obligations exceeds the Aggregate
Commitment, the Borrower agrees to repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders, Extensions of Credit in an amount equal to such excess with each
such repayment applied first to the principal amount of outstanding Swingline
Loans, second to the principal amount of outstanding Revolving Credit Loans and
third, with respect to any Letters of Credit then outstanding, a payment of cash
collateral into a cash collateral account opened by the Administrative Agent,
for the benefit of the Lenders in an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit (such cash collateral to be
applied in accordance with Section 11.2(b)).
(c) Optional Prepayments. The Borrower may at any time and from time to
time prepay, without premium or penalty but including any amount required to be
paid pursuant to Section 4.9 hereof, Revolving Credit Loans and Swingline Loans,
in whole or in part, with irrevocable prior written notice to the Administrative
Agent substantially in the form attached hereto as EXHIBIT D (a "Notice of
Prepayment") given not later than 11:00 a.m. (i) on the same Business Day as
each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business
Days before each LIBOR Rate Loan, specifying the date and amount of prepayment
and whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date set forth in such notice.
Partial prepayments shall be in an aggregate amount of $2,500,000 or a whole
multiple of $1,000,000 in excess thereof with respect to Base Rate Loans (other
than Swingline Loans), $5,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to LIBOR Rate Loans and $500,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans. A Notice of
Prepayment received after 11:00 a.m. shall be deemed received on the next
Business Day. Each such repayment shall be accompanied by any amount required to
be paid pursuant to Section 4.9 hereof.
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(d) Limitation on Prepayment of LIBOR Rate Loans. The Borrower may not
prepay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such prepayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(e) Hedging Agreements. No repayment or prepayment pursuant to this
Section shall affect any of the Borrower's obligations under any Hedging
Agreement.
SECTION 2.5 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any time and
from time to time, upon at least five (5) Business Days prior written notice to
the Administrative Agent, to permanently reduce, without premium or penalty, but
including any amount required to be paid pursuant to Section 4.9 hereof, (i) the
entire Aggregate Commitment at any time or (ii) portions of the Aggregate
Commitment, from time to time, in an aggregate principal amount of not less than
$2,500,000 or any whole multiple of $1,000,000 in excess thereof. Any reduction
of the Aggregate Commitment shall be applied to the Commitment of each Lender
according to its Commitment Percentage. All commitment fees accrued until the
effective date of any termination of the Aggregate Commitment shall be paid on
the effective date of such termination.
(b) Corresponding Payment. Each permanent reduction permitted or required
pursuant to this Section shall be accompanied by a payment of principal
sufficient to reduce the aggregate outstanding Revolving Credit Loans, Swingline
Loans and L/C Obligations, as applicable, after such reduction to the Aggregate
Commitment as so reduced and if the Aggregate Commitment as so reduced is less
than the aggregate amount of all outstanding Letters of Credit, the Borrower
shall be required to deposit cash collateral in a cash collateral account opened
by the Administrative Agent in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Such cash collateral shall be
applied in accordance with Section 11.2(b). Any reduction of the Aggregate
Commitment to zero shall be accompanied by payment of all outstanding Revolving
Credit Loans and Swingline Loans (and furnishing of cash collateral satisfactory
to the Administrative Agent for all L/C Obligations) and shall result in the
termination of the Commitments and the Credit Facility. Such cash collateral
shall be applied in accordance with Section 11.2(b). If the reduction of the
Aggregate Commitment requires the repayment of any LIBOR Rate Loan, such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 4.9 hereof.
SECTION 2.6 Termination of Revolving Credit Facility. The Revolving Credit
Facility shall terminate on the Maturity Date.
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ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof
(including, without limitation, Section 10.6(c)), the Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue standby letters of credit ("Letters of Credit") for the account
of the Borrower on any Business Day from the Closing Date through but not
including the fifth (5th) Business Day prior to the Maturity Date in such form
as may be approved from time to time by the Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (a) the L/C Obligations would exceed the L/C
Commitment or (b) the aggregate principal amount of outstanding Revolving Credit
Loans, plus the aggregate principal amount of outstanding Swingline Loans, plus
the aggregate amount of L/C Obligations would exceed the Aggregate Commitment.
Each Letter of Credit shall (i) be denominated in Dollars in a minimum amount of
$250,000, (ii) be a standby letter of credit issued to support obligations of
the Borrower or any of its Subsidiaries, contingent or otherwise, incurred in
the ordinary course of business, (iii) expire no later than the earlier of: (A)
one (1) year after its date of issuance or (B) the fifth (5th) Business Day
prior to the Maturity Date and (iv) be subject to the Uniform Customs and/or
ISP98, as set forth in the Letter of Credit Application or as determined by the
Issuing Lender and, to the extent not inconsistent therewith, the laws of the
State of North Carolina. The Issuing Lender shall not at any time be obligated
to issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of
any existing Letters of Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at the Administrative Agent's Office a Letter
of Credit Application therefor, completed to the satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may request. Upon receipt of any Letter of Credit
Application, the Issuing Lender shall process such Letter of Credit Application
and the certificates, documents and other papers and information delivered to it
in connection therewith in accordance with its customary procedures and shall,
subject to Section 3.1 and Article V, promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three (3) Business Days after its receipt of
the Letter of Credit Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed by the Issuing Lender and the Borrower. The Issuing Lender shall
promptly furnish to the Borrower a copy of such Letter of Credit and promptly
notify each Lender of the issuance and upon request by any Lender, furnish to
such Lender a copy of such Letter of Credit and the amount of such Lender's
participation therein.
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SECTION 3.3 Commissions and Other Charges.
(a) Letter of Credit Commissions. The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit in an amount equal to the face amount of such Letter of Credit multiplied
by the Applicable Margin with respect to Revolving Credit Loans that are LIBOR
Rate Loans (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter, on the
Maturity Date and thereafter on demand of the Administrative Agent. The
Administrative Agent shall, promptly following its receipt thereof, distribute
to the Issuing Lender and the L/C Participants all commissions received pursuant
to this Section in accordance with their respective Commitment Percentages.
(b) Issuance Fee. In addition to the foregoing commission, the Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender, an
issuance fee with respect to each Letter of Credit in an amount equal to the
face amount of such Letter of Credit multiplied by one-quarter of one percent
(0.250%) per annum. Such issuance fee shall be payable quarterly in arrears on
the last Business Day of each calendar quarter commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Maturity Date
and thereafter on demand of the Administrative Agent.
(c) Other Costs. In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under and in respect of each Letter
of Credit issued hereunder and the amount of each draft paid by the Issuing
Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees
with the Issuing Lender that, if a draft is paid under any Letter of Credit for
which the Issuing Lender is not reimbursed in full by the Borrower through a
Revolving Credit Loan or otherwise in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C
24
Participant shall pay to the Issuing Lender the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand, in addition to such amount, the product of (i) such amount, times
(ii) the daily average Federal Funds Rate as determined by the Administrative
Agent during the period from and including the date such payment is due to the
date on which such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section shall be conclusive
in the absence of manifest error. With respect to payment to the Issuing Lender
of the unreimbursed amounts described in this Section, if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Commitment
Percentage of such payment in accordance with this Section, the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. In the event of any
drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section or
with funds from other sources), in same day funds, the Issuing Lender on each
date on which the Issuing Lender notifies the Borrower of the date and amount of
a draft paid under any Letter of Credit for the amount of (a) such draft so paid
and (b) any amounts referred to in Section 3.3(c) incurred by the Issuing Lender
in connection with such payment. Unless the Borrower shall immediately notify
the Issuing Lender that the Borrower intends to reimburse the Issuing Lender for
such drawing from other sources or funds, the Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent requesting that
the Lenders make a Revolving Credit Loan bearing interest at the Base Rate on
such date in the amount of (a) such draft so paid and (b) any amounts referred
to in Section 3.3(c) incurred by the Issuing Lender in connection with such
payment, and the Lenders shall make a Revolving Credit Loan bearing interest at
the Base Rate in such amount, the proceeds of which shall be applied to
reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses. Each Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this Section to reimburse the Issuing
Lender for any draft paid under a Letter of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including, without
limitation, non-satisfaction of the conditions set forth in Section 2.3(a) or
Article V. If the Borrower has elected to pay the amount of such drawing with
funds from other sources and shall fail to reimburse the Issuing Lender as
provided above, the unreimbursed amount of such drawing shall bear interest at
the rate which would be payable on any outstanding Base Rate
25
Loans which were then overdue from the date such amounts become payable (whether
at stated maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under this
Article III (including, without limitation, the Reimbursement Obligation) shall
be absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Borrower may have
or have had against the Issuing Lender or any beneficiary of a Letter of Credit
or any other Person. The Borrower also agrees that the Issuing Lender and the
L/C Participants shall not be responsible for, and the Borrower's Reimbursement
Obligation under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct, shall be binding on the Borrower and shall not result in
any liability of the Issuing Lender or any L/C Participant to the Borrower. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
SECTION 3.7 Effect of Letter of Credit Application. To the extent that any
provision of any Letter of Credit Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions of this
Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section, at
the election of the Borrower, (i) Revolving Credit Loans shall bear interest at
(A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the
Applicable Margin (provided that the LIBOR Rate shall not be available until
three (3) Business Days after the Closing Date) and (ii) any Swingline Loan
shall bear interest at the Base Rate plus the Applicable Margin. The Borrower
shall select the rate of interest and Interest Period, if any, applicable to any
Loan at the time a Notice of Borrowing is given or at the time a Notice of
Conversion/Continuation is given
26
pursuant to Section 4.2. Any Loan or any portion thereof as to which the
Borrower has not duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 2.3 or 4.2, as
applicable, shall elect an interest period (each, an "Interest Period") to be
applicable to such Loan, which Interest Period shall be a period of one (1), two
(2), three (3), or six (6) months; provided that:
(i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date on
which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided, that if any Interest Period with respect to a LIBOR Rate
Loan would otherwise expire on a day that is not a Business Day but is a day of
the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Maturity Date; and
(v) there shall be no more than five (5) Interest Periods in effect
at any time.
(c) Default Rate. Subject to Section 11.3, upon the occurrence and during
the continuance of a Payment Event of Default or a Bankruptcy Event of Default
or, at the discretion of the Administrative Agent or as directed by the Required
Lenders, upon the occurrence and during the continuance of an Event of Default
other than a Payment Event of Default or Bankruptcy Event of Default, (i) the
Borrower shall no longer have the option to request LIBOR Rate Loans, Swingline
Loans or Letters of Credit, (ii) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum of two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans until the end of the applicable Interest Period
and thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans and
other Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans or such other Obligations arising hereunder
or under any other Loan Document. Interest shall continue to accrue on the
Obligations after the filing by or against the Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
(d) Interest Payment and Computation. Interest on each Base Rate Loan
shall be due and payable in arrears on the last Business Day of each calendar
quarter commencing
27
September 30, 2004; and interest on each LIBOR Rate Loan shall be due and
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three (3)
month interval during such Interest Period. Interest on LIBOR Rate Loans and all
fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed and interest on Base Rate Loans
shall be computed on the basis of a 365/66-day year and assessed for the actual
number of days elapsed.
(e) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest under this Agreement charged or
collected pursuant to the terms of this Agreement exceed the highest rate
permissible under any Applicable Law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that the Lenders have charged or received interest hereunder
in excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by Applicable Law and the
Lenders shall at the Administrative Agent's option (i) promptly refund to the
Borrower any interest received by the Lenders in excess of the maximum lawful
rate or (ii) apply such excess to the principal balance of the Obligations on a
pro rata basis. It is the intent hereof that the Borrower not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be paid by the Borrower under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Closing Date all or any portion of
any outstanding Base Rate Loans (other than Swingline Loans) in a principal
amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a
principal amount equal to $2,500,000 or a whole multiple of $1,000,000 in excess
thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert
or continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as EXHIBIT E (a
"Notice of Conversion/Continuation") not later than 11:00 a.m. (Charlotte time)
three (3) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying (A) the Loans to be
converted or continued, and, in the case of any LIBOR Rate Loan to be converted
or continued, the last day of the Interest Period therefor, (B) the effective
date of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 4.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrower shall pay
to the Administrative Agent, for the account of the Lenders, a non-refundable
commitment fee at a rate per annum equal to 0.30% on the average daily unused
portion of the Aggregate
28
Commitment; provided, that the amount of outstanding Swingline Loans shall not
be considered usage of the Aggregate Commitment for the purpose of calculating
such commitment fee. The commitment fee shall be payable in arrears on the last
Business Day of each calendar quarter during the term of this Agreement
commencing December 31, 2004, and on the Maturity Date. Such commitment fee
shall be distributed by the Administrative Agent to the Lenders pro rata in
accordance with the Lenders' respective Commitment Percentages.
(b) Administrative Agent's Fees. In order to compensate the Administrative
Agent for structuring and syndicating the Loans and for its obligations
hereunder, the Borrower agrees to pay to the Administrative Agent and its
affiliates, for their own account, the fees set forth in the Fee Letter.
(c) Other Fees. In order to compensate the Lenders for entering into this
Agreement and making the Extensions of Credit hereunder, the Borrower agrees to
pay to the Administrative Agent and its affiliates, for the account of the
Lenders, the fees set forth in the Fee Letter.
SECTION 4.4 Manner of Payment. Each payment by the Borrower on account of
the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement shall be made not later than 1:00 p.m. on the date specified for
payment under this Agreement to the Administrative Agent at the Administrative
Agent's Office for the account of the Lenders (other than as set forth below)
pro rata in accordance with their respective Commitment Percentages (except as
specified below), in Dollars, in immediately available funds and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after such time but before 2:00 p.m. on such day shall be deemed a payment on
such date for the purposes of Section 11.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. shall be deemed to have been made on the next
succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share of such
payment in accordance with such Lender's Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of the Issuing Lender's fees or
L/C Participants' commissions shall be made in like manner, but for the account
of the Issuing Lender or the L/C Participants, as the case may be. Each payment
to the Administrative Agent of Administrative Agent's fees or expenses shall be
made for the account of the Administrative Agent and any amount payable to any
Lender under Sections 4.9, 4.10, 4.11 or 13.3 shall be paid to the
Administrative Agent for the account of the applicable Lender. Subject to
Section 4.1(b)(ii) if any payment under this Agreement shall be specified to be
made upon a day which is not a Business Day, it shall be made on the next
succeeding day which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with such payment.
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SECTION 4.5 Evidence of Indebtedness.
(a) Extensions of Credit. The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Extensions of Credit made
by the Lenders to the Borrower and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a
Revolving Credit Note and/or Swingline Note, as applicable, which shall evidence
such Lender's Revolving Credit Loans and/or Swingline Loans, as applicable, in
addition to such accounts or records. Each Lender may attach schedules to its
Notes and endorse thereon the date, amount and maturity of its Loans and
payments with respect thereto.
(b) Participations. In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swingline
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
SECTION 4.6 Adjustments. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or other obligations hereunder resulting in
such Lender's receiving payment of a proportion of the aggregate amount of its
Loans and accrued interest thereon or other such obligations (other than
pursuant to Sections 4.9, 4.10, 4.11 or 13.3 hereof) greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided that
(i) if any such participations are purchased 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) the provisions of this paragraph shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or
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sale of a participation in any of its Loans or participations in Swingline Loans
and Letters of Credit to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this paragraph shall
apply).
Each Credit Party 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 each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of such participation.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.3(b), and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Commitment Percentage of
such borrowing is not made available to the Administrative Agent by such Lender
within three (3) Business Days after such borrowing date, the Administrative
Agent shall be entitled to recover such amount made available by the
Administrative Agent with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the borrowing
date. Notwithstanding anything set forth herein to the contrary, any Lender that
fails to make available its Commitment Percentage of any Loan shall not (a) have
any voting or consent rights under or with respect to any Loan Document or (b)
constitute a "Lender" (or be included in the calculation of Required Lenders
hereunder) for any voting or consent rights under or with respect to any Loan
Document.
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SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with the Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via the Telerate
Page 3750 or offered to the Administrative Agent or such Lender for such
Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrower. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, the obligation of the Lenders
to make LIBOR Rate Loans and the right of the Borrower to convert any Loan to or
continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrower
shall repay in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Rate Loan together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or convert the then outstanding principal amount of each such
LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any Change in Law or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any of the Lenders (or any of their respective Lending Offices) with any
request or directive (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain any
LIBOR Rate Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrower and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrower may select only Base Rate Loans hereunder,
and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR
Rate Loan to the end of the then current Interest Period applicable thereto as a
LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period.
SECTION 4.9 Indemnity. The Borrower hereby indemnifies each of the Lenders
against any loss or expense which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to effect,
fund or maintain any Loan (a) as a consequence of any failure by the Borrower to
make any payment when due of any amount due hereunder in connection with a LIBOR
Rate Loan, (b) due to any failure of the Borrower to borrow, continue or convert
on a date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in the
applicable Lender's sole discretion, based upon the assumption that such Lender
funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging
32
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
SECTION 4.10 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or advances, loans or other credit extended
or participated in by, any Lender (except any reserve requirement reflected in
the LIBOR Rate) or the Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any LIBOR Rate Loan made by it, or change
the basis of taxation of payments to such Lender or the Issuing Lender in
respect thereof (except for Indemnified Taxes or Other Taxes covered by Section
4.11 and the imposition of, or any change in the rate of any Excluded Tax
payable by such Lender or the Issuing Lender); or
(iii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition, cost or expense affecting this Agreement
or LIBOR Rate 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, converting into or maintaining any LIBOR Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or the Issuing Lender of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Lender hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or the Issuing
Lender, the Borrower shall promptly pay to any such Lender or the Issuing
Lender, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender determines
that any Change in Law affecting such Lender or the Issuing Lender or any
lending office of such Lender or such Lender's or the Issuing Lender's holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Lender's capital or
on the capital of such Lender's or the Issuing Lender's holding company, if any,
as a consequence of this Agreement, the Commitment of such Lender or the Loans
made by, or participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by the Issuing Lender, to a level below that which such
Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Lender's policies and the policies of
such Lender's or the Issuing Lender's holding company with respect to capital
adequacy), then from
33
time to time the Borrower shall promptly pay to such Lender or the Issuing
Lender, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Lender or such Lender's or the Issuing Lender's
holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section and delivered to the Borrower
shall be conclusive absent manifest error. The Borrower shall pay such Lender or
the Issuing Lender, as the case may be, the amount shown as due on any such
certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine months prior to
the date that such Lender or the Issuing Lender, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Lender's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
SECTION 4.11 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Lender, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10) days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
34
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower 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) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Without
limiting the generality of the foregoing, in the event that the Borrower is a
resident for tax purposes in the United States, any Foreign Lender shall deliver
to the Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a "bank" within
the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder"
of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrower to determine the withholding
or deduction required to be made.
35
(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or
the Issuing Lender determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the Issuing Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the Issuing Lender in the event the
Administrative Agent, such Lender or the Issuing Lender is required to repay
such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent, any Lender or the Issuing Lender
to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Borrower or any other Person.
(g) Survival. Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section shall survive the payment in full of the Obligations and the
termination of the Commitments.
SECTION 4.12 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 4.10, or requires the Borrower to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 4.11, 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) would eliminate or reduce amounts payable pursuant
to Section 4.10 or Section 4.11, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 4.10, 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
Section 4.11, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 13.11), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that
36
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 13.11,
(ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in Letters of Credit,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
Section 4.9) 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),
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 4.10 or payments required to be made pursuant to
Section 4.11, such assignment will result in a reduction in such compensation or
payments thereafter, and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on September 30, 2004,
or on such other place, date and time as the parties hereto shall mutually
agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, a Revolving Credit Note in
favor of each Lender requesting a Revolving Credit Note, a Swingline Note in
favor of the Swingline Lender (if requested thereby), the Guaranty Agreement,
together with any other applicable Loan Documents, shall have been duly
authorized, executed and delivered to the Administrative Agent by the parties
thereto, shall be in full force and effect and no Default or Event of Default
shall exist hereunder or thereunder.
(b) Closing Certificates; Etc. The Administrative Agent shall have
received each of the following in form and substance reasonably satisfactory to
the Administrative Agent:
(i) Officer's Certificate of the Borrower. A certificate from a
Responsible Officer of the Borrower to the effect that all representations and
warranties of the Borrower contained in this Agreement and the other Loan
Documents are true, correct and complete; that
37
neither the Borrower nor any of its Subsidiaries is in violation of any of the
covenants contained in this Agreement and the other Loan Documents; that, after
giving effect to the transactions contemplated by this Agreement, no Default or
Event of Default has occurred and is continuing; and that each of the Borrower
and its Subsidiaries, as applicable, has satisfied each of the conditions set
forth in Section 5.2 and Section 5.3.
(ii) Certificate of Secretary of each Credit Party. A certificate of
a Responsible Officer of each Credit Party certifying as to the incumbency and
genuineness of the signature of each officer of such Credit Party executing Loan
Documents to which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles or certificate of incorporation or
formation of such Credit Party and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction of
incorporation or formation, (B) the bylaws or other governing document of such
Credit Party as in effect on the Closing Date, (C) resolutions duly adopted by
the board of directors or other governing body of such Credit Party authorizing
the transactions contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party, and (D) each certificate required to be delivered pursuant to Section
5.2(b)(iii).
(iii) Certificates of Good Standing. Certificates as of a recent
date of the good standing of each Credit Party under the laws of its
jurisdiction of organization and, to the extent requested by the Administrative
Agent, each other jurisdiction where such Credit Party is qualified to do
business and, to the extent available, a certificate of the relevant taxing
authorities of such jurisdictions certifying that such Credit Party has filed
required tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel. Favorable opinions of counsel to the
Credit Parties addressed to the Administrative Agent and the Lenders with
respect to the Credit Parties, the Loan Documents and such other matters as the
Lenders shall request, each in form and substance reasonably satisfactory to the
Administrative Agent.
(v) Tax Forms. Copies of the United States Internal Revenue Service
forms required by Section 4.11(e).
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Credit Parties shall
have received all material governmental, shareholder and third party consents
and approvals necessary (or any other material consents as determined in the
reasonable discretion of the Administrative Agent) in connection with the
transactions contemplated by this Agreement and the other Loan Documents and the
other transactions contemplated hereby and all applicable waiting periods shall
have expired without any action being taken by any Person that could reasonably
be expected to restrain, prevent or impose any material adverse conditions on
any of the Credit Parties or such other transactions or that could seek or
threaten any of the foregoing, and no law or regulation shall be applicable
which in the reasonable judgment of the Administrative Agent could reasonably be
expected to have such effect.
38
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or the other Loan Documents or the consummation
of the transactions contemplated hereby or thereby.
(d) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of the
Borrower and its Subsidiaries, all in form and substance reasonably satisfactory
to the Administrative Agent and prepared in accordance with GAAP.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
reasonably satisfactory to the Administrative Agent, and certified as accurate
by a Responsible Officer, that (A) the Borrower and each of its Subsidiaries are
each Solvent, (B) the Borrower's payables are current and not past due, (C)
attached thereto are calculations evidencing compliance on a pro forma basis
with the covenants contained in Article IX hereof, (D) the financial projections
previously delivered to the Administrative Agent represent the good faith
estimates (utilizing reasonable assumptions) of the financial condition and
operations of the Borrower and its Subsidiaries and (E) attached thereto is a
calculation of the Applicable Margin.
(iii) Payment at Closing; Fee Letters. The Borrower shall have paid
to the Administrative Agent and the Lenders the fees set forth or referenced in
Section 4.3 to the extent payable on the Closing Date and any other accrued and
unpaid fees or commissions due hereunder (including, without limitation, legal
fees and expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(e) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrower in accordance with Section
2.3(a) (if a Loan is to be made or a Letter of Credit issued) and a Notice of
Account Designation specifying the account or accounts to which the proceeds of
any Loans made after the Closing Date are to be disbursed.
(ii) Due Diligence. The Administrative Agent shall have completed,
to its satisfaction, all legal, tax, business and other due diligence with
respect to the business, assets, liabilities, operations and condition
(financial or otherwise) of the Borrower and its Subsidiaries in scope and
determination satisfactory to the Administrative Agent in its sole discretion.
39
(iii) Prior Facility. The Prior Facility shall have been terminated
and all other existing Indebtedness (other than Indebtedness permitted per
Section 10.1) shall be concurrently repaid in full and terminated and all
collateral security therefor shall be released, and the Administrative Agent
shall have received pay-off letters in form and substance satisfactory to it
evidencing such repayment, termination, reconveyance and release.
(iv) Initial Public Offering. The Administrative Agent shall have
received a copy of a final prospectus filed in connection with a registration
statement on Form S-1 (or successor form) with the Untied States Securities and
Exchange Commission (the "SEC") with respect to an initial public offering of
the common stock of the Borrower (which such registration shall have terms and
conditions substantially similar to Amendment No. 5 to Form S-1 dated July 19,
2004 or such other terms and conditions as are reasonably satisfactory to the
Administrative Agent) and evidence reasonably satisfactory to the Administrative
Agent that such initial public offering has occurred.
(v) Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be in form and substance reasonably satisfactory to the
Administrative Agent. The Administrative Agent shall have received copies of all
other documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.
SECTION 5.3 Conditions to All Extensions of Credit. The obligations of the
Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VI shall be true and correct on and as of
such borrowing, continuation, conversion, issuance or extension date with the
same effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, continuation or conversion date
with respect to such Loan or after giving effect to the Loans to be made,
continued or converted on such date or (ii) on the issuance or extension date
with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice of
Borrowing or Notice of Conversion/Continuation, as applicable, from the Borrower
in accordance with Section 2.3(a) and Section 4.2.
(d) Additional Documents. The Administrative Agent shall have received
each additional document, instrument, legal opinion or other item referred to in
or contemplated by any Loan Document, in each case as reasonably requested by
it.
40
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties. To induce the Administrative
Agent and Lenders to enter into this Agreement and to induce the Lenders to make
Extensions of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation, (ii) has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and (iii)
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization except where the failure to be so qualified would not have a
Material Adverse Effect. The jurisdictions in which the Borrower and its
Subsidiaries are organized and qualified to do business as of the Closing Date
are described on Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date is
listed on Schedule 6.1(b). As of the Closing Date, the capitalization of the
Borrower and its Subsidiaries consists of the number of shares or other
ownership interests, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 6.1(b). All outstanding
shares or other ownership interests have been duly authorized and validly issued
and are fully paid and nonassessable, with no personal liability attaching to
the ownership thereof, and not subject to any preemptive or similar rights. The
shareholders (or members, partners or other owners, as applicable) of the
Subsidiaries of the Borrower and the number of shares or other ownership
interests owned by each as of the Closing Date are described on Schedule 6.1(b).
As of the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for or otherwise
provide for or permit the issuance of Capital Stock of the Borrower or its
Subsidiaries, except as described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of the
Borrower and its Subsidiaries has the right, power and authority and has taken
all necessary corporate and other action to authorize the execution, delivery
and performance of this Agreement and each of the other Loan Documents to which
it is a party in accordance with their respective terms. This Agreement and each
of the other Loan Documents has been duly executed and delivered by the duly
authorized officers of the Borrower and each of its Subsidiaries party thereto,
and each such document constitutes the legal, valid and binding obligation of
the Borrower and each Subsidiary party thereto, enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debtor relief
laws from time to time in effect which affect the enforcement of creditors'
rights in general and the availability of equitable remedies.
41
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
The execution, delivery and performance by the Borrower and its Subsidiaries of
the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the Extensions of Credit hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of the Borrower or
any of its Subsidiaries or any indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents or (iv) require any consent or authorization of, filing with, or
other act in respect of, an arbitrator or Governmental Authority and no consent
of any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
(e) Compliance with Law; Governmental Approvals. Except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, each of the Borrower and its Subsidiaries (i)
has all Governmental Approvals required by any Applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not
subject to review on appeal and is not the subject of any pending or, to the
best of its knowledge, threatened attack by direct or collateral proceeding,
(ii) is in compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties and (iii) has timely filed all material reports, documents
and other materials required to be filed by it under all Applicable Laws with
any Governmental Authority and has retained all material records and documents
required to be retained by it under Applicable Law.
(f) Tax Returns and Payments. Each of the Borrower and its Subsidiaries
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its property, income,
profits and assets which are due and payable. Such returns accurately reflect in
all material respects all liability for taxes of the Borrower and its
Subsidiaries for the periods covered thereby. There is no ongoing audit or
examination or, to the knowledge of the Borrower, other investigation by any
Governmental Authority of the tax liability of the Borrower and its Subsidiaries
in each case, except as could not reasonably be expected to have a Material
Adverse Effect. No Governmental Authority has asserted any Lien or other claim
against the Borrower or any Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of the Borrower and any of its Subsidiaries in respect of federal,
state, local and other material taxes for all Fiscal Years and portions thereof
since the organization of the Borrower and any of its Subsidiaries are in the
judgment of the Borrower adequate, and the Borrower does not anticipate any
additional taxes or assessments for any of such years.
42
(g) Intellectual Property Matters. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service xxxx, service xxxx rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business. To the Borrower's
knowledge, no event has occurred which permits, or after notice or lapse of time
or both would permit, the revocation or termination of any such rights, and to
the Borrower's knowledge, neither the Borrower nor any Subsidiary thereof is
liable to any Person for infringement under Applicable Law with respect to any
such rights as a result of its business operations.
(h) Environmental Matters.
(i) The properties owned, leased or operated by the Borrower and its
Subsidiaries now or in the past do not contain, and to their knowledge, have not
previously contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of applicable Environmental Laws or
(B) could give rise to liability under applicable Environmental Laws;
(ii) The Borrower, each Subsidiary and such properties and all
operations conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof, except for any such noncompliance or contamination that
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(iii) Neither the Borrower nor any Subsidiary thereof has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters, Hazardous Materials, or
compliance with Environmental Laws, nor does the Borrower or any Subsidiary
thereof have knowledge or reason to believe that any such notice will be
received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed of to
or from the properties owned, leased or operated by the Borrower and its
Subsidiaries in violation of, or in a manner or to a location which could give
rise to liability under, Environmental Laws, nor have any Hazardous Materials
been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Laws, except where such violation or
liability could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;
(v) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary thereof is or will be
named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders,
43
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to Borrower, any Subsidiary or such properties or
such operations; and
(vi) There has been no release, or to the best of the Borrower's
knowledge, threat of release, of Hazardous Materials at or from properties
owned, leased or operated by the Borrower or any Subsidiary, now or in the past,
in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material compliance
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans except for
any required amendments for which the remedial amendment period as defined in
Section 401(b) of the Code has not yet expired and except where a failure to so
comply could not reasonably be expected to have a Material Adverse Effect. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a) of
the Code either has obtained a favorable determination letter as to its
qualified status under the Code or is in a prototype or volume submitter plan
document that has been pre-approved by the IRS as is evidenced by a letter from
the IRS. No liability has been incurred by the Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan except for a liability that
could not reasonably be expected to have a Material Adverse Effect;
(iii) As of the Closing Date, no Pension Plan has been terminated,
nor has any accumulated funding deficiency (as defined in Section 412 of the
Code) been incurred (without regard to any waiver granted under Section 412 of
the Code), nor has any funding waiver from the Internal Revenue Service been
received or requested with respect to any Pension Plan, nor has the Borrower or
any ERISA Affiliate failed to make any contributions or to pay any amounts due
and owing as required by Section 412 of the Code, Section 302 of ERISA or the
terms of any Pension Plan prior to the due dates of such contributions under
Section 412 of the Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with
respect to any Pension Plan;
(iv) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, neither the Borrower nor any ERISA
Affiliate has: (A) engaged in a nonexempt prohibited transaction described in
Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any liability
to the PBGC which remains outstanding other than the payment of premiums and
there are no premium payments which are due and unpaid, (C) failed to make a
required contribution or payment to a Multiemployer Plan, or (D) failed to make
a required installment or other required payment under Section 412 of the Code;
44
(v) No Termination Event has occurred or is reasonably expected to
occur; and
(vi) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or investigation
is existing or, to the best knowledge of the Borrower after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by the
Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used, directly or indirectly, in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds of
any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary thereof
is an "investment company" or a company "controlled" by an "investment company"
(as each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary thereof is, or after giving
effect to any Extension of Credit will be, subject to regulation under the
Public Utility Holding Company Act of 1935 or the Interstate Commerce Act, each
as amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(l) sets forth a complete and accurate
list of all Material Contracts of the Borrower and its Subsidiaries in effect as
of the Closing Date not listed on any other Schedule hereto; other than as set
forth in Schedule 6.1(l), each such Material Contract is, and after giving
effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. The Borrower and its Subsidiaries have delivered to the Administrative
Agent a true and complete copy of each Material Contract required to be listed
on Schedule 6.1(l) or any other Schedule hereto. Neither the Borrower nor any
Subsidiary (nor, to the knowledge of the Borrower, any other party thereto) is
in breach of or in default under any Material Contract in any material respect.
(m) Employee Relations. Each of the Borrower and its Subsidiaries has a
stable work force in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees except as set forth on Schedule 6.1(m). The
Borrower knows of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of its
Subsidiaries.
(n) Burdensome Provisions. Neither the Borrower nor any Subsidiary thereof
is a party to any indenture, agreement, lease or other instrument, or subject to
any corporate or
45
partnership restriction, Governmental Approval or Applicable Law which is so
unusual or burdensome as in the foreseeable future could be reasonably expected
to have a Material Adverse Effect. The Borrower and its Subsidiaries do not
presently anticipate that future expenditures needed to meet the provisions of
any statutes, orders, rules or regulations of a Governmental Authority will be
so burdensome as to have a Material Adverse Effect. No Subsidiary is party to
any agreement or instrument or otherwise subject to any restriction or
encumbrance that restricts or limits its ability to make dividend payments or
other distributions in respect of its Capital Stock to the Borrower or any
Subsidiary or to transfer any of its assets or properties to the Borrower or any
other Subsidiary in each case other than existing under or by reason of the Loan
Documents or Applicable Law.
(o) Financial Statements. The (i) audited Consolidated balance sheet of
the Borrower and its Subsidiaries as of December 31, 2003 and the related
audited statements of income and retained earnings and cash flows for the Fiscal
Year then ended and (ii) unaudited Consolidated balance sheet of the Borrower
and its Subsidiaries as of June 30, 2004 and related unaudited interim
statements of income and retained earnings, copies of which have been furnished
to the Administrative Agent and each Lender, are complete and correct and fairly
present on a Consolidated basis the assets, liabilities and financial position
of the Borrower and its Subsidiaries as at such dates, and the results of the
operations and changes of financial position for the periods then ended (other
than customary year-end adjustments for unaudited financial statements). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP (but, in the case of any such
financial statements, schedules and notes which are unaudited, only to the
extent GAAP is applicable to interim unaudited reports). The Borrower and its
Subsidiaries have no Indebtedness, obligation or other unusual forward or
long-term commitment which is not fairly reflected in the foregoing financial
statements or in the notes thereto.
(p) No Material Adverse Change. Since December 31, 2003, there has been no
material adverse change in the properties, business, operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries and no event has
occurred or condition arisen that could reasonably be expected to have a
Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Subsidiaries
will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Subsidiaries has
such title to the real property owned or leased by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of its
personal property and assets, including, but not limited to, those reflected on
the balance sheets of the Borrower and its Subsidiaries delivered pursuant to
Section 6.1(o), except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Permitted Liens. No financing
statement under the Uniform Commercial Code of any state which names the
Borrower or any Subsidiary thereof or
46
any of their respective trade names or divisions as debtor and which has not
been terminated, has been filed in any state or other jurisdiction and neither
the Borrower nor any Subsidiary thereof has signed any such financing statement
or any security agreement authorizing any secured party thereunder to file any
such financing statement, except to perfect those Permitted Liens.
(t) Indebtedness and Guaranty Obligations. Schedule 6.1(t) is a complete
and correct listing of all Indebtedness and Guaranty Obligations of the Borrower
and its Subsidiaries as of the Closing Date in excess of $1,000,000. The
Borrower and its Subsidiaries have performed and are in compliance, in all
material respects, with all of the terms of such Indebtedness and Guaranty
Obligations and all instruments and agreements relating thereto, and no default
or event of default, or event or condition which with notice or lapse of time or
both would constitute such a default or event of default on the part of the
Borrower or any of its Subsidiaries exists with respect to any such Indebtedness
or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(u), and except for matters existing in the ordinary course
that could not reasonably be expected, individually, or in the aggregate, to
have a Material Adverse Effect, there are no actions, suits or proceedings
pending nor, to the knowledge of the Borrower, threatened against or in any
other way relating adversely to or affecting the Borrower or any Subsidiary
thereof or any of their respective properties in any court or before any
arbitrator of any kind or before or by any Governmental Authority.
(v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Subsidiary thereof under any Material
Contract or judgment, decree or order to which the Borrower or its Subsidiaries
is a party or by which the Borrower or its Subsidiaries or any of their
respective properties may be bound or which would require the Borrower or its
Subsidiaries to make any payment thereunder prior to the scheduled maturity date
therefor.
(w) Senior Indebtedness Status. The Obligations of the Borrower and each
of its Subsidiaries under this Agreement and each of the other Loan Documents
rank and shall continue to rank at least senior in priority of payment to all
Subordinated Indebtedness of each such Person and is designated as "Senior
Indebtedness" or otherwise treated as senior debt under all instruments and
documents, now or in the future, relating to all Subordinated Indebtedness of
such Person.
(x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Subsidiary thereof (other than financial projections, which shall be subject
to the reasonable satisfaction of the Administrative Agent) and furnished to the
Administrative Agent or the Lenders were, at the time the same were so
furnished, complete and correct in all respects to the extent necessary to give
the recipient a true and accurate knowledge of the subject matter.
(y) Disclosure. The Borrower has disclosed to the Administrative Agent and
the Lenders all agreements, instruments and corporate or other restrictions to
which any of the Credit
47
Parties are subject, and all other matters known to it (other than general
economic conditions), that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. No financial statement,
material report, material certificate or other material information furnished
(whether in writing or orally) by or on behalf of any of the Credit Parties to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, pro forma financial information, estimated financial information
and other projected or estimated information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or the Administrative Agent or any Extension of Credit hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.2, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 13.1 and to the Lenders at their respective addresses as set
forth on the Register, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days (or, if earlier, on the date of any required
public filing thereof) after the end of each fiscal quarter of each Fiscal Year,
an unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as
of the close of such fiscal quarter and unaudited Consolidated statements of
income, retained earnings and cash flows for the fiscal quarter then ended and
that portion of the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the corresponding period in the preceding Fiscal Year and
prepared by the Borrower in accordance with GAAP (to
48
the extent GAAP is applicable to interim unaudited reports) and, if applicable,
containing disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles and
practices during the period, and certified by the chief financial officer of the
Borrower to present fairly in all material respects the financial condition of
the Borrower and its Subsidiaries on a Consolidated basis as of their respective
dates and the results of operations of the Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year end adjustments. Delivery
by the Borrower to the Administrative Agent and the Lenders of the Borrower's
quarterly report to the SEC on Form 10-Q with respect to any fiscal quarter, or
the availability of such report on XXXXX Online, within the period specified
above shall be deemed to be compliance by the Borrower with this Section 7.1(a).
(b) Annual Financial Statements. As soon as practicable and in any event
within ninety (90) days (or, if earlier, on the date of any required public
filing thereof) after the end of each Fiscal Year, an audited Consolidated
balance sheet of the Borrower and its Subsidiaries as of the close of such
Fiscal Year and audited Consolidated statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the preceding Fiscal Year and prepared in accordance with
GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of accounting
principles and practices during the year. Such annual financial statements shall
be audited by an independent certified public accounting firm acceptable to the
Administrative Agent, and accompanied by a report thereon by such certified
public accountants that is not qualified with respect to scope limitations
imposed by the Borrower or any of its Subsidiaries or with respect to accounting
principles followed by the Borrower or any of its Subsidiaries not in accordance
with GAAP. Delivery by the Borrower to the Administrative Agent and the Lenders
of the Borrower's annual report to the SEC on Form 10-K with respect to any
Fiscal Year, or the availability of such report on XXXXX Online, within the
period specified above shall be deemed to be compliance by the Borrower with
this Section 7.1(b).
(c) Annual Budget. As soon as practicable and in any event within thirty
(30) days after the end of each Fiscal Year, an annual operating and capital
budget of the Borrower and its Subsidiaries for the ensuing four (4) fiscal
quarters, in a form and with calculations to be made in a manner reasonably
satisfactory to the Administrative Agent.
SECTION 7.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, an Officer's
Compliance Certificate.
SECTION 7.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 7.1(b), a certificate of the independent
public accountants certifying such financial statements that in connection with
their audit, nothing came to their attention that caused them to believe that
the Borrower failed to comply with the terms, covenants, provisions or
conditions of Articles IX and X, insofar as they relate to financial and
accounting matters or, if such is not the case, specifying such non-compliance
and its nature and period of existence.
49
SECTION 7.4 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
(b) such other information regarding the operations, business affairs and
financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after a Responsible Officer of the Borrower
obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and investigations by or
before any Governmental Authority and all material actions and proceedings in
any court or before any arbitrator against or involving the Borrower or any
Subsidiary thereof or any of their respective properties, assets or businesses;
(b) any notice of any material violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws;
(c) any labor controversy that has resulted in, or threatens to result in,
a strike or other work action against the Borrower or any Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $1,000,000
that may be assessed against or threatened against the Borrower or any
Subsidiary thereof;
(e) (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
the Borrower or any of its Subsidiaries is a party or by which the Borrower or
any Subsidiary thereof or any of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
50
(g) any event which makes any of the representations set forth in Section
6.1 that is subject to materiality or Material Adverse Effect qualifications
inaccurate in any respect or any event which makes any of the representations
set forth in Section 6.1 that is not subject to materiality or Material Adverse
Effect qualifications inaccurate in any material respect.
SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender whether pursuant to this Article VII
or any other provision of this Agreement, shall, at the time the same is so
furnished, comply with the representations and warranties set forth in Section
6.1 (x) and (y).
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner provided
for in Section 13.2, the Borrower will, and will cause each of its Subsidiaries
to:
SECTION 8.1 Preservation of Existence and Related Matters. Except as
permitted by Section 10.4, (a) preserve and maintain its separate corporate,
limited liability company, partnership or other entity existence and all rights,
franchises, licenses and privileges necessary to the conduct of its business,
and (b) except where the failure to qualify or remain qualified as foreign
corporation could not reasonably be expected to have a Material Adverse Effect,
qualify and remain qualified as a foreign corporation and authorized to do
business in each jurisdiction where the nature and scope of its activities
require it to so qualify under Applicable Law.
SECTION 8.2 Maintenance of Property. Protect and preserve all properties
useful in and material to its business, including copyrights, patents, trade
names, service marks and trademarks; maintain in good working order and
condition, ordinary wear and tear excepted, all buildings, equipment and other
tangible real and personal property; and from time to time make or cause to be
made all repairs, renewals and replacements thereof and additions to such
property necessary for the conduct of its business, so that the business carried
on in connection therewith may be conducted in a commercially reasonable manner.
SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law (including, without limitation, hazard and business interruption
insurance), and on the Closing Date and from time to time thereafter deliver to
the Administrative Agent upon its request a detailed list of the insurance then
in effect, stating the names of the insurance companies, the amounts and rates
of the insurance, the dates of the expiration thereof and the properties and
risks covered thereby.
51
SECTION 8.4 Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete in all material respects) as may be required or as may be necessary to
permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Subsidiary may contest any item
described in clauses (a) or (b) of this Section in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business.
SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants, if any,
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrower or any such Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without limiting the
generality of Section 8.6, (a) except where the failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur
52
any tax liability under Section 4980B of the Code or any liability to any
qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to
the Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
SECTION 8.9 Compliance With Agreements. Comply in all material respects
with each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that the Borrower or any such
Subsidiary may contest any such lease, agreement or other instrument in good
faith through applicable proceedings so long as adequate reserves are maintained
in accordance with GAAP.
SECTION 8.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, upon reasonable notice
and during normal business hours, to visit and inspect its properties; inspect,
audit and make extracts from its books, records and files, including, but not
limited to, management letters prepared by independent accountants; and discuss
with its principal officers, and its independent accountants, its business,
assets, liabilities, financial condition, results of operations and business
prospects.
SECTION 8.11 Additional Subsidiaries. Notify the Administrative Agent of
the creation or acquisition of any Material Subsidiary or the designation of any
Subsidiary as a Material Subsidiary and promptly thereafter (and in any event
within thirty (30) days), cause such Person to (i) become a Guarantor by
delivering to the Administrative Agent a duly executed supplement to the
Guaranty Agreement or such other document as the Administrative Agent shall deem
appropriate for such purpose, (ii) deliver to the Administrative Agent such
documents and certificates referred to in Section 5.2 as may be reasonably
requested by the Administrative Agent, (iii) deliver to the Administrative Agent
such updated Schedules to the Loan Documents as requested by the Administrative
Agent with respect to such Person, and (iv) deliver to the Administrative Agent
such other documents as may be reasonably requested by the Administrative Agent,
all in form, content and scope reasonably satisfactory to the Administrative
Agent.
SECTION 8.12 Use of Proceeds. The Borrower shall use the proceeds of the
Extensions of Credit (a) to finance the acquisition of Capital Assets, (b) to
finance permitted acquisitions, and (c) for working capital and general
corporate requirements of the Borrower and its Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
transactions contemplated hereby.
SECTION 8.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent, the Issuing Lender or the Required Lenders (through the Administrative
Agent) may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure the Administrative
Agent, the Issuing Lender and the Lenders their respective rights under this
Agreement, the Letters of Credit and the other Loan Documents.
53
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.2, the Borrower and its Subsidiaries on a Consolidated basis will
not:
SECTION 9.1 Leverage Ratio: As of any fiscal quarter end, permit the ratio
of (a) Total Indebtedness on such date to (b) EBITDA for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date to be
greater than or equal to 2.00 to 1.00.
SECTION 9.2 Interest Coverage Ratio: As of any fiscal quarter end, permit
the ratio of (a) EBITDA for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such date to (b) Interest Expense for the
period of four (4) consecutive fiscal quarters ending on or immediately prior to
such date to be less than or equal to 5.00 to 1.00.
SECTION 9.3 Net Worth. As of any fiscal quarter end, permit the Net Worth
of the Borrower to be less than or equal to $35,000,000.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 13.2, the Borrower has not, will not and will not permit any of its
Subsidiaries to:
SECTION 10.1 Limitations on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to
Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a
counterparty (other than a Lender or an Affiliate of a Lender) and upon terms
and conditions (including interest rate) reasonably satisfactory to the
Administrative Agent;
(c) Indebtedness of the Borrower and its Subsidiaries incurred in
connection with Capital Leases and purchase money Indebtedness in an aggregate
amount not to exceed $2,500,000 on any date of determination;
(d) Guaranty Obligations with respect to Indebtedness permitted pursuant
to subsections (a) through (c) of this Section;
54
(e) Indebtedness owed by any Subsidiary to the Borrower, by the Borrower
to any Guarantor, or by any Subsidiary to any Guarantor;
(f) Subordinated Indebtedness; provided that in the case of each issuance
of Subordinated Indebtedness, (i) no Default or Event of Default shall have
occurred and be continuing or would be caused by the issuance of such
Subordinated Indebtedness and (ii) the Administrative Agent shall have received
satisfactory written evidence that the Borrower would be in compliance with all
covenants contained in this Agreement on a pro forma basis after giving effect
to the issuance of any such Subordinated Indebtedness; and
(g) Indebtedness incurred by the Borrower or any Subsidiary thereof
arising from agreements providing for indemnification, adjustment of purchase
price or similar obligations in incurred or assumed in connection with any
Permitted Acquisition to the extent permitted pursuant to Section 10.3(h);
provided, that no agreement or instrument with respect to Indebtedness permitted
to be incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of the Borrower to make any
payment to the Borrower or any Guarantors (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling the Borrower to
pay the Obligations.
SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of Capital Stock), real or personal,
whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or levies
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate do not result in a Material Adverse Effect and which do
not, in any case, detract from the value of such property or impair the use
thereof in the ordinary conduct of business;
(e) Liens securing the Obligations;
55
(f) Liens not otherwise permitted by this Section and in existence on the
Closing Date and described on Schedule 10.2;
(g) Liens securing Indebtedness permitted under Sections 10.1(c); provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition or lease of the related asset, (ii) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed one hundred percent (100%) of the original purchase price or lease
payment amount of such property at the time it was acquired;
(h) deposits to secure the performance of bids, tenders, trade contracts,
liability to insurance carriers and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or litigation),
performance bonds, contractual or warranty obligations and other obligations of
a like nature incurred in the ordinary course of business; and
(i) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 11.1(n) or securing appeal or other surety bonds
related to such judgments.
SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any
Capital Stock, interests in any partnership or joint venture (including, without
limitation, the creation or capitalization of any Subsidiary), evidence of
Indebtedness or other obligation or security, substantially all or a portion of
the business or assets of any other Person or any other investment or interest
whatsoever in any other Person, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment in
cash or by delivery of property in, any Person except:
(a) (i) investments as of the Closing Date in Subsidiaries existing on the
Closing Date, (ii) investments in Subsidiaries formed or acquired after the
Closing Date made in accordance with the terms and conditions of this Agreement
and (iii) the other loans, advances and investments existing on the Closing Date
which are described on Schedule 10.3;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States or any agency thereof maturing
within one (1) year from the date of acquisition thereof, (ii) commercial paper
or variable or fixed rate notes maturing no more than three hundred sixty-four
(364) days from the date of creation thereof and currently having the highest
rating obtainable from either S&P or Xxxxx'x, (iii) certificates of deposit
maturing no more than three hundred sixty-four (364) days from the date of
creation thereof issued by commercial banks incorporated under the laws of the
United States, each having combined capital, surplus and undivided profits of
not less than $250,000,000 and having a rating of "A" or better by a nationally
recognized rating agency; provided, that, unless otherwise approved by the
Administrative Agent, the aggregate amount invested in such certificates of
deposit shall not at any time exceed $5,000,000 for any one such certificate of
deposit and $10,000,000 for any one such bank, (iv) time deposits maturing no
more than three hundred sixty-four (364) days from
56
the date of creation thereof with commercial banks or savings banks or savings
and loan associations each having membership either in the FDIC or the deposits
of which are insured by the FDIC and in amounts not exceeding the maximum
amounts of insurance thereunder; (v) any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Xxxxx'x and
maturing within six (6) months of the date of acquisition; (vi) auction
preferred stocks having the highest short-term credit rating by S&P or Xxxxx'x;
or (vii) other similar investments approved by the Administrative Agent.
(c) investments by the Borrower or any of its Subsidiaries in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of Capital Stock, assets or any combination thereof)
of any other Person if such acquisition has been previously approved in writing
by the Required Lenders;
(d) Hedging Agreements permitted pursuant to Section 10.1;
(e) purchases of assets in the ordinary course of business;
(f) investments in the form of loans and advances to employees in the
ordinary course of business, which, in the aggregate, do not exceed at any time
$100,000;
(g) intercompany Indebtedness permitted pursuant to Section 10.1(e);
(h) investments by the Borrower or any Subsidiary thereof in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of Capital Stock, assets or any combination thereof)
of any other Person if each such acquisition meets all of the following
requirements:
(i) the Person to be acquired shall be in a substantially similar or
complementary line of business as the Borrower;
(ii) evidence of approval of the acquisition by the acquiree's board
of directors or equivalent governing body or a copy of the opinion of
counsel delivered by legal counsel to the acquiree in connection with the
acquisition which evidences such approval or opines that such approval is
not required shall be delivered to the Administrative Agent at the time
the documents referred to in clause (vi) of this Section 10.3(h) are
required to be delivered;
(iii) a description of the acquisition in the form customarily
prepared by the Borrower shall have been delivered to the Administrative
Agent and the Lenders prior to the consummation of the acquisition;
(iv) the Borrower or any Subsidiary shall be the surviving Person
and no Change of Control shall have been effected thereby;
57
(v) the Borrower shall have demonstrated to the Administrative Agent
(A) pro forma compliance (as of the date of the proposed acquisition and
after giving effect thereto and any Extensions of Credit made or to be
made in connection therewith) with each covenant contained in and in the
manner set forth in, Article IX, (B) a pro forma Total Leverage Ratio (as
of the date of the proposed acquisition and after giving effect thereto
and any Extensions of Credit made or to be made in connection therewith)
less than or equal to 1.75 to 1.00, and (C) no Default or Event of Default
shall have occurred and be continuing both before and after giving effect
to the acquisition;
(vi) if such person is a Material Subsidiary , the Borrower shall
have delivered to the Administrative Agent such documents reasonably
requested by the Administrative Agent or the Required Lenders (through the
Administrative Agent) pursuant to Section 8.11 to be delivered at the time
required pursuant to Section 8.11 confirming that such Person is or will
be a Guarantor hereunder, said documents to include a favorable opinion of
counsel to the Borrower acceptable to the Administrative Agent addressed
to the Administrative Agent and the Lenders with respect to the Borrower,
the Person to be acquired and the acquisition in form and substance
reasonably acceptable to the Administrative Agent;
(vii) the aggregate amount of cash consideration and any assumed
debt, earn-outs (valued at an amount reasonably determined in good faith
by the Borrower to be payable in connection with such earn-outs) or
deferred payments for any such acquisition or series of related
acquisitions shall not exceed $20,000,000; and
(viii) the Borrower shall provide such other documents and other
information as may be reasonably requested by the Administrative Agent or
the Required Lenders (through the Administrative Agent) in connection with
the proposed acquisition;
(i) investments by the Borrower or any Subsidiary thereof in Foreign
Subsidiaries in an aggregate amount not to exceed $2,000,000 outstanding at any
time during the term of this Agreement;
(j) investments in joint ventures (including a joint venture where the
Borrower or a Subsidiary contributes assets to the joint venture); provided that
the aggregate amount of all such investments does not exceed $2,000,000
outstanding at any time during the term of this Agreement; and
(k) additional loans, advances and/or investments of a nature not
contemplated by the foregoing clauses hereof; provided that the aggregate amount
or value of such loans, advances and/or investments made pursuant to this clause
(k) shall not exceed $250,000 at any time.
SECTION 10.4 Limitations on Mergers and Liquidation. Merge, consolidate or
enter into any similar combination with any other Person or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution) except:
58
(a) any Wholly-Owned Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving Person) or with or into any Guarantor (provided that the
Guarantor shall be the continuing or surviving Person);
(b) any Wholly Owned Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or any other Wholly-Owned Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must either
be the Borrower or a Guarantor;
(c) any Wholly-Owned Subsidiary of the Borrower may merge into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection with a
Permitted Acquisition; and
(d) any Subsidiary of the Borrower may wind-up into the Borrower or any
Guarantor.
SECTION 10.5 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the business
of the Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Borrower or any Guarantor pursuant to
Section 10.4 (a), (b) or (d);
(d) the sale or discount without recourse of accounts receivable arising
in the ordinary course of business in connection with the compromise or
collection thereof;
(e) the disposition of any Hedging Agreement; and
(f) additional dispositions of assets not otherwise permitted pursuant to
this Section in an aggregate amount not to exceed $2,000,000 during any Fiscal
Year.
SECTION 10.6 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its Capital Stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its Capital Stock, or
make any distribution of cash, property or assets among the holders of shares of
its Capital Stock, or make any change in its capital structure which such change
in its capital structure could reasonably be expected to have a Material Adverse
Effect; provided that:
(a) the Borrower or any Subsidiary may pay dividends in shares of its own
Capital Stock;
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(b) any Subsidiary may pay cash dividends to the Borrower;
(c) on any date upon which there are no outstanding Extensions of Credit,
the Borrower may pay dividends to holders of its stock and/or repurchase shares
of its stock in an aggregate amount of up to one hundred percent (100%) of the
Cash on Hand as of the most recent fiscal quarter end; provided that on the date
such dividend is paid and/or shares of stock are repurchased and after giving
effect thereto (i) no Default or Event of Default shall have occurred and be
continuing; (ii) the Borrower shall be in pro forma compliance with each of the
covenants set forth in Article IX; and (iii) the Borrower will have Cash on Hand
of at least $3,000,000; provided further that if the Borrower pays dividends or
makes stock repurchases in an aggregate amount in excess of seventy percent
(70%) of the Cash on Hand as of the most recent fiscal quarter end, the Borrower
shall not be permitted to request Extensions of Credit for a period of thirty
(30) days following the date such dividend is paid and/or shares of stock are
repurchased; and
(d) on any date upon which there are outstanding Extensions of Credit, the
Borrower may pay dividends to holders of its stock and/or repurchase shares of
its stock in an aggregate amount of up to (i) thirty-five percent (35%) of Cash
on Hand as of the most recent fiscal quarter end, if the Total Leverage Ratio as
the most recent quarter end is less than 1.00 to 1.00 or (ii) twenty-five
percent (25%) of Cash on Hand as of the most recent fiscal quarter end, if the
Total Leverage Ratio as of the most recent quarter end is equal to or greater
than 1.00 to 1.00; provided that, in either case, on the date such dividend is
paid and/or shares of stock are repurchased and after giving effect thereto (A)
no Default or Event of Default shall have occurred and be continuing; (B) the
Borrower shall be in pro forma compliance with each of the covenants set forth
in Article IX; and (C) the Borrower will have Cash on Hand of at least
$3,000,000.
SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock. Issue,
sell or otherwise dispose of any class or series of Capital Stock that, by its
terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Indebtedness not permitted hereunder or (b)
required to be redeemed or repurchased (other than on terms permitted under
Section 10.6), including at the option of the holder, in whole or in part, or
has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due.
SECTION 10.8 Transactions with Affiliates. Except for transactions
permitted by Sections 10.3, 10.6, 10.7 and those transactions existing on the
Closing Date and identified on Schedule 10.8, directly or indirectly (a) make
any loan or advance to, or purchase or assume any note or other obligation to or
from, any of its officers, directors, shareholders or other Affiliates, or to or
from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates or (b) enter into, or be a party to, any other transaction not
described in clause (a) above with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are fully disclosed to the Lenders prior to the consummation thereof and are no
less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
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SECTION 10.9 Certain Accounting Changes; Organizational Documents. (a)
Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except, subject to Section 13.10, as required by, or in
accordance with, GAAP or (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational documents)
or amend, modify or change its bylaws (or other similar documents) in any manner
adverse in any material respect to the rights or interests of the Lenders.
SECTION 10.10 Amendments; Payments and Prepayments of Subordinated
Indebtedness.
(a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Subordinated Indebtedness in any respect which
would materially adversely affect the rights or interests of the Administrative
Agent and Lenders hereunder.
(b) Make any payment or prepayment on, or redeem or acquire for value
(including, without limitation, (i) by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due and (ii) at the maturity thereof) any Subordinated Indebtedness, except
refinancings, refundings, renewals, extensions or exchange of any Subordinated
Indebtedness permitted by Section 10.1(f).
SECTION 10.11 Restrictive Agreements.
(a) Enter into any Indebtedness which contains any negative pledge on
assets or any covenants more restrictive than the provisions of Articles VIII,
IX and X hereof, or which restricts, limits or otherwise encumbers its ability
to incur Liens on or with respect to any of its assets or properties other than
the assets or properties securing such Indebtedness.
(b) Enter into or permit to exist any agreement which impairs or limits
the ability of any Subsidiary of the Borrower to pay dividends to the Borrower.
SECTION 10.12 Nature of Business. Substantively alter in any material
respect the character or conduct of the business conducted by the Borrower and
its Subsidiaries as of the Closing Date.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
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(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any Loan
or Reimbursement Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. The Borrower or any other Credit Party shall
default in the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan or Reimbursement Obligation
or the payment of any other Obligation, and such default shall continue for a
period of three (3) Business Days.
(c) Misrepresentation. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
other Credit Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith that is subject to materiality or
Material Adverse Effect qualifications, shall be incorrect or misleading in any
respect when made or deemed made or any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower or any
other Credit Party herein, any other Loan Document, or in any document delivered
in connection herewith or therewith that is not subject to materiality or
Material Adverse Effect qualifications, shall be incorrect or misleading in any
material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower or any other
Credit Party shall default in the performance or observance of any covenant or
agreement contained in Sections 7.1, 7.2 or 7.5(e)(i) or Articles IX or X of
this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The Borrower
or any other Credit Party shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) Hedging Agreement. The Borrower or any other Credit Party shall
default in the performance or observance of any term, covenant, condition or
agreement (after giving effect to any applicable grace or cure period) under any
Hedging Agreement and such default causes the termination of such Hedging
Agreement and the Termination Value owed by such Credit Party as a result
thereof exceeds $1,000,000.
(g) Indebtedness Cross-Default. The Borrower or any other Credit Party
shall (i) default in the payment of any Indebtedness (other than the Loans or
any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $1,000,000 beyond the period of grace if any,
provided in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Indebtedness (other than the Loans or any
Reimbursement Obligation) the aggregate outstanding amount of which Indebtedness
is in excess of $1,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of
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such holder or holders) to cause, with the giving of notice if required, any
such Indebtedness to become due prior to its stated maturity (any applicable
grace period having expired).
(h) Other Cross-Defaults. The Borrower or any other Credit Party shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract.
(i) Change in Control. A Change in Control shall occur.
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower or any Credit Party thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Credit Party thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the Borrower or any other Credit Party party thereto (except in the
event this Agreement or other Loan Document is, by its terms, terminated and no
longer in force) or any such Person shall so state in writing.
(m) Termination Event. The occurrence of any of the following events: (i)
the Borrower or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the
Code, the Borrower or any ERISA Affiliate is required to pay as contributions
thereto, (ii) an accumulated funding deficiency in excess of $1,000,000 occurs
or exists, whether or not waived, with respect to any Pension Plan, (iii) a
Termination Event or (iv) the Borrower or any ERISA Affiliate as employers under
one or more Multiemployer Plans makes a complete or partial withdrawal from any
such Multiemployer Plan and the plan sponsor of such Multiemployer Plans
notifies such
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withdrawing employer that such employer has incurred a withdrawal liability
requiring payments in an amount exceeding $1,000,000.
(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $1,000,000 in any Fiscal
Year (to the extent not covered by independent third-party insurance as to which
the insurer does not dispute coverage), shall be entered against the Borrower or
any Credit Party by any court and such judgment or order shall continue without
having been discharged, vacated, stayed or bonded pending appeal for a period of
thirty (30) days after the entry thereof.
(o) Environmental. Any one or more Environmental Claims shall have been
asserted against the Borrower or any Credit Party; the Borrower and any Credit
Party would be reasonably likely to incur liability as a result thereof; and
such liability would be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect.
SECTION 11.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Terminate the Commitments and
declare the principal of and interest on the Loans and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Administrative Agent under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
or shall be entitled to present the documents required thereunder) and all other
Obligations (other than Hedging Obligations), to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived
by each Credit Party, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facility and any right of
the Borrower to request borrowings or Letters of Credit thereunder; provided,
that upon the occurrence of a Bankruptcy Event of Default, the Credit Facility
shall be automatically terminated and all Obligations (other than Hedging
Obligations) shall automatically become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived
by each Credit Party, anything in this Agreement or in any other Loan Document
to the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations on a pro rata basis. After all such Letters of Credit shall
have expired or been fully drawn upon, the Reimbursement Obligation
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shall have been satisfied and all other Obligations shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts, including attorney fees, payable to the
Administrative Agent in its capacity as such and the Issuing Lender in its
capacity as such (ratably among the Administrative Agent and the Issuing Lender
in proportion to the respective amounts described in this clause First payable
to them);
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders, including attorney fees (ratably among the Lenders in proportion to the
respective amounts described in this clause Second payable to them);
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and Reimbursement Obligations and any Hedging
Obligations (ratably among the Lenders in proportion to the respective amounts
described in this clause Third payable to them);
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, Reimbursement Obligations or any Hedging Obligations
(including any termination
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payments thereon) (ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them);
Fifth, to the Administrative Agent for the account of the Issuing Lender,
to cash collateralize any L/C Obligations then outstanding; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
SECTION 11.5 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered to, and if required by the Required Lenders
shall, by intervention in such proceeding or otherwise:
(a) file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 3.3, 4.3 and 13.3) allowed in such
judicial proceeding; and
(b) collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 4.3 and 13.3.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
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ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints Wachovia to act on its behalf as the Administrative
Agent of such Lender under this Agreement and the other Loan Documents for the
term hereof and each such Lender irrevocably authorizes Wachovia, as
Administrative Agent for such Lender, 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 such other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or
such other Loan Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the other Loan Documents or otherwise exist against the
Administrative Agent. Any reference to the Administrative Agent in this Article
XII shall be deemed to refer to the Administrative Agent solely in its capacity
as Administrative Agent and not in its capacity as a Lender.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel 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 the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of the Credit Parties
or any officer thereof contained in this Agreement or the other Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of the Credit
Parties to perform its obligations hereunder or thereunder. The Administrative
Agent 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 to inspect the properties, books or records of
the Borrower or any of the Credit Parties.
SECTION 12.4 Reliance by the Administrative Agent.
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(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, 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, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement and the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders (or, when expressly required hereby or by the relevant
other Loan Documents, all the Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action except for its own gross negligence or willful misconduct.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Required Lenders (or, when expressly required hereby, all the Lenders), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 5.2, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
SECTION 12.5 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 it has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, it shall promptly 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,
when expressly required hereby, all the 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, except to the extent that
other provisions of this Agreement expressly require that any such action be
taken or not be taken only with the consent and authorization or the request of
the Lenders or Required Lenders, as applicable.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereafter taken, including any review of
the affairs of the Borrower or any Credit Party, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender.
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Each Lender represents to the Administrative Agent that it has, independently
and without reliance upon the Administrative 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 Borrower and its
Subsidiaries and made its own decision to make its Loans and issue or
participate in Letters of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative 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 Borrower or any Credit
Party. Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder or by the other
Loan Documents, 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, financial and other condition or
creditworthiness of the Borrower or any of the Credit Parties which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans or any Reimbursement Obligation) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or the other Loan Documents, or any
documents, reports or other information provided to the Administrative Agent or
any Lender or contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent 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 to the extent resulting from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Obligations and the termination of
this Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not the Administrative
Agent hereunder. With respect to any Loans made or renewed by it and with
respect to any Letter of Credit issued by it or participated in by it, the
Administrative 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 the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
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SECTION 12.9 Resignation of the Administrative Agent; Successor
Administrative Agent.
(a) Subject to the appointment and acceptance of a successor as provided
below, Wachovia may resign as the Administrative Agent at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent shall have been so appointed by
the Required Lenders and shall have accepted such appointment within thirty (30)
days after the Administrative Agent's giving of notice of resignation, then the
Administrative Agent may, on behalf of the Lenders, appoint a successor
administrative agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor administrative agent, such successor
administrative agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder without any other or further act or deed on the part of
such retiring Administrative Agent or any other Lender. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XII and Section 13.3 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is thirty (30) days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
(b) Notwithstanding anything to the contrary contained herein, Wachovia
may, (i) upon thirty (30) days' notice to the Borrower and the Lenders, resign
as Issuing Lender and/or (ii) upon thirty (30) days' notice to the Borrower,
resign as Swingline Lender. In the event of any such resignation as Issuing
Lender or Swingline Lender, the Borrower shall be entitled to appoint from among
the Lenders, subject to acceptance of such appointment by the Lender so chosen,
a successor Issuing Lender or Swingline Lender hereunder; provided that no
failure by the Borrower to appoint any such successor shall affect the
resignation of Wachovia as Issuing Lender or Swingline Lender, as the case may
be. If Wachovia resigns as Issuing Lender, it shall retain all the rights and
obligations of the Issuing Lender hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as Issuing Lender
and all L/C Obligations with respect thereto, including the right to require the
Lenders to make Revolving Credit Loans or fund risk participations for
unreimbursed amounts of Letters of Credit pursuant to Section 3.4. If Wachovia
resigns as Swingline Lender, it shall retain all the rights of the Swingline
Lender provided for hereunder with respect to Swingline Loans made by it and
outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Revolving Credit Loans or fund risk participations
in outstanding Swingline Loans pursuant to Section 2.2(b).
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SECTION 12.10 Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion,
(a) to release any Guarantor from its obligations under the Guaranty
Agreement if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent's authority to release any Guarantor
from its obligations under the Guaranty Agreement pursuant to this Section.
SECTION 12.11 Other Agents, Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if sent by recognized
overnight courier service and (iii) on the third Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
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If to the Borrower: Blackbaud, Inc.
0000 Xxxxxx Xxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX 0760
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the address set forth on the Register
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit requested.
SECTION 13.2 Amendments, Waivers and Consents. Except as set forth below
or as specifically provided in any Loan Document, any term, covenant, agreement
or condition of this Agreement or any of the other Loan Documents may be amended
or waived by the Lenders, and any consent given by the Lenders, if, but only if,
such amendment, waiver or consent is in writing signed by the Required Lenders
(or by the Administrative Agent with the consent of the Required Lenders) and
delivered to the Administrative Agent and, in the case of an amendment, signed
by the Borrower; provided, that no amendment, waiver or consent shall:
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(a) waive any condition set forth in Section 5.2 without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 11.2) or the amount of Loans of any
Lender without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or Reimbursement Obligation, or (subject to clause (iv) of the second
proviso to this Section) any fees or other amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby; provided that only the consent of the Required Lenders shall
be necessary (i) to waive any obligation of the Borrower to pay interest at the
rate set forth in Section 4.1(c) during the continuance of an Event of Default,
or (ii) to amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change Section 4.4 or Section 11.4 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; or
(g) release all of the Guarantors or release Guarantors comprising
substantially all of the credit support for the Obligations, in either case,
from the Guaranty Agreement (other than as authorized in Section 12.10), without
the written consent of each Lender.
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement or
any Letter of Credit Application relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any
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amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
SECTION 13.3 Expenses; Indemnity. The Borrower will (a) pay all reasonable
out-of-pocket expenses (including, without limitation, all costs of electronic
or internet distribution of any information hereunder) of the Administrative
Agent in connection with (i) the preparation, execution and delivery of this
Agreement and each other Loan Document, whenever the same shall be executed and
delivered, including, without limitation, all reasonable out-of-pocket
syndication and due diligence expenses and reasonable fees, disbursements and
other charges of counsel for the Administrative Agent and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the Administrative
Agent or the Lenders relating to this Agreement or any other Loan Document,
including, without limitation, reasonable fees and disbursements of counsel for
the Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent and each Lender actually incurred in connection with the
administration and enforcement of any rights and remedies of the Administrative
Agent and Lenders under the Credit Facility, including, without limitation, in
connection with any workout, restructuring, bankruptcy or other similar
proceeding, enforcing any Obligations of, or collecting any payments due from,
the Borrower or any Guarantor by reason of an Event of Default (including in
connection with the enforcement of the Guaranty Agreement); consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim (including, without limitation, any Environmental Claims), investigation,
litigation or other proceeding (whether or not the Administrative Agent or any
Lender is a party thereto) and the prosecution and defense thereof, arising out
of or in any way connected with any Extension of Credit, this Agreement, any
other Loan Document, or any documents, reports or other information provided to
the Administrative Agent or any Lender or contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby, or any action
taken or omitted to be taken by the Administrative Agent under or in connection
with any of the foregoing including, without limitation, reasonable attorney's
and consultant's fees, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 13.4 Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, the Swingline Lender and each of
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Lender, the Swingline
Lender or any such Affiliate to or for the credit or the account of the Borrower
or any other Credit Party against any and all of the obligations of the Borrower
or such Credit Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender, the Issuing Lender or the
74
Swingline Lender, irrespective of whether or not such Lender, the Issuing Lender
or the Swingline Lender shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower or such Credit
Party may be contingent or unmatured or are owed to a branch or office of such
Lender, the Issuing Lender or the Swingline Lender different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the Issuing Lender, the Swingline Lender and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the Issuing Lender, the
Swingline Lender or their respective Affiliates may have. Each Lender, the
Issuing Lender and the Swingline Lender agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
SECTION 13.5 Governing Law. This Agreement and the other Loan Documents,
unless otherwise expressly set forth therein, shall be governed by, construed
and enforced in accordance with the laws of the State of North Carolina, without
reference to the conflicts or choice of law principles thereof.
SECTION 13.6 Jurisdiction and Venue.
(a) Jurisdiction. The Borrower hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Mecklenburg County,
North Carolina (and any courts from which an appeal from any of such courts must
or may be taken), in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. The Borrower hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1. Nothing in this
Section shall affect the right of the Administrative Agent or any Lender to
serve legal process in any other manner permitted by Applicable Law or affect
the right of the Administrative Agent or any Lender to bring any action or
proceeding against the Borrower or its properties in the courts of any other
jurisdictions.
(b) Venue. The Borrower hereby irrevocably waives any objection it may
have now or in the future to the laying of venue in the aforesaid jurisdiction
in any action, claim or other proceeding arising out of or in connection with
this Agreement, any other Loan Document or the rights and obligations of the
parties hereunder or thereunder. The Borrower irrevocably waives, in connection
with such action, claim or proceeding, any plea or claim that the action, claim
or other proceeding has been brought in an inconvenient forum.
SECTION 13.7 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected
75
with or relating to this Agreement or any other Loan Document ("Disputes"),
between or among parties hereto and to the other Loan Documents shall be
resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan
Documents executed in the future, disputes as to whether a matter is subject to
arbitration, or claims concerning any aspect of the past, present or future
relationships arising out of or connected with the Loan Documents. Arbitration
shall be conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. All arbitration
hearings shall be conducted in Charlotte, North Carolina. The expedited
procedures set forth in Rule 51, et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000. All applicable statutes of
limitations shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding anything foregoing to the
contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within one
hundred twenty (120) days after such demand. These time limitations may not be
extended unless a party hereto shows cause for extension and then such extension
shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in the
Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by
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confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in a
Dispute.
SECTION 13.8 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds which
payments or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.9 Injunctive Relief; Punitive or Indirect Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Required Lenders'
option, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf of
itself and the Credit Parties) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The Borrower (on behalf of itself and the Credit Parties) hereby
agrees that no such Person shall have a remedy of any consequential or indirect
damages against any Lender or the Administrative Agent and the Borrower (on
behalf of itself and the Credit Parties) hereby waives any right or claim to
consequential or indirect damages that they may now have or may arise in the
future in connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 13.10 Accounting Matters. If at any time any change in GAAP or
change in the Borrower's accounting practices under Section 10.9 would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP or change in the Borrower's accounting practices
under Section 10.9 (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP and the Borrower's accounting practice prior to
such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between
77
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP or change in the Borrower's accounting practices.
SECTION 13.11 Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (d)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000, unless such assignment is made to an existing Lender, to an
Affiliate thereof, or to an Approved Fund, in which case no minimum amount shall
apply, unless each of the Administrative Agent and, so long as no Default or
Event of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed); provided that
the Borrower shall be deemed to have given its consent ten (10) Business Days
after the date written notice thereof has been delivered by the assigning Lender
(through the Administrative Agent) unless such consent is expressly refused by
the Borrower prior to such tenth (10th) Business Day;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned;
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(iii) any assignment must be approved by the Administrative Agent,
the Swingline Lender and the Issuing Lender unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.8, 4.9, 4.10, 4.11 and 13.3 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph 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 (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in Charlotte,
North Carolina, a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement.
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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver or modification described in the
Section 13.2 that directly affects such Participant. Subject to paragraph (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 4.8, 4.9, 4.10 and 4.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 13.4 as though it were a Lender, provided
such Participant agrees to be subject to Section 4.6 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 4.10 and 4.11 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 4.11 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 4.11(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION 13.12 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by, or required to be disclosed to, any rating agency, or regulatory or similar
authority (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
under this Agreement or under any other Loan Document (or any Hedging Agreement
with a Lender or the Administrative Agent) or any action or proceeding relating
to this Agreement or any other Loan Document (or any Hedging Agreement with a
Lender or the Administrative Agent) or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Purchasing Lender, proposed Purchasing
Lender, Participant or proposed Participant or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and
80
its obligations, (g) with the consent of the Borrower, (h) to Gold Sheets and
other similar bank trade publications, such information to consist of deal terms
and other information customarily found in such publications, or (i) to the
extent such Information (x) becomes publicly available other than as a result of
a breach of this Section or (y) becomes available to the Administrative Agent or
any Lender on a nonconfidential basis from a source other than the Borrower. For
purposes of this Section, "Information" means all information received from any
Credit Party relating to any Credit Party or any of their respective businesses,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by any Credit Party;
provided that, in the case of information received from a Credit Party after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 13.13 Performance of Duties. Each of the Credit Party's
obligations under this Agreement and each of the other Loan Documents shall be
performed by such Credit Party at its sole cost and expense.
SECTION 13.14 All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Commitments remain in
effect or the Credit Facility has not been terminated.
SECTION 13.15 Survival of Indemnities. Notwithstanding any termination of
this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 13.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 13.17 Severability of Provisions. Any provision of this Agreement
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 13.18 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
81
SECTION 13.19 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
SECTION 13.20 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
(except for Hedging Obligations) arising hereunder or under any other Loan
Document shall have been indefeasibly and irrevocably paid and satisfied in full
and all Commitments have been terminated. No termination of this Agreement shall
affect the rights and obligations of the parties hereto arising prior to such
termination or in respect of any provision of this Agreement which survives such
termination.
SECTION 13.21 USA Patriot Act. The Administrative Agent and each Lender
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower and Guarantors, which information includes the name and
address of each Borrower and Guarantor and other information that will allow
such Lender to identify such Borrower or Guarantor in accordance with the Act.
SECTION 13.22 Advice of Counsel, No Strict Construction. Each of the
parties represents to each other party hereto that it has discussed this
Agreement with its counsel. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
SECTION 13.23 Inconsistencies with Other Documents; Independent Effect of
Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided that any provision of the other Loan Documents which imposes
additional burdens on the Borrower or its Subsidiaries or further restricts the
rights of the Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrower shall
82
not engage in any transaction or other act otherwise permitted under any
covenant contained in Articles VIII, IX, or X if, before or after giving effect
to such transaction or act, the Borrower shall or would be in breach of any
other covenant contained in Articles VIII, IX, or X.
[Signature pages to follow]
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
BLACKBAUD, INC., as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Chief Financial Officer
[Credit Agreement - Blackbaud, Inc.]
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing
Lender and Lender
By: /s/ Xxxx X. Xxxxx
-------------------
Name: Xxxx X. Xxxxx
Title: Director
[Credit Agreement - Blackbaud, Inc.]
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxx XxXxxxx
----------------------------
Name: Xxxxx XxXxxxx
Title: Managing Director
[Credit Agreement - Blackbaud, Inc.]
JPMORGAN CHASE BANK, as Lender
By: /s/ Xxxxxx XxXxxxxx
-------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
[Credit Agreement - Blackbaud, Inc.]
Schedule 1.1
(Lenders and Commitments)
LENDER COMMITMENT
----------------------------------------- -----------
Wachovia Bank, National Association
Xxxxxxxxx Xxxxx, XX-0
000 Xxxxx Xxxxxxx Xxxxxx $10,000,000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Bank of America, N.A.
0000 Xxxxxxx Xxxxxxxxx $10,000,000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx $10,000,000
Xxxxxxx, Xxxxx 00000
Attention: Nga Xxxxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
-----------
TOTAL $30,000,000
-----------
