Exhibit 99.2
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CREDIT AGREEMENT
Dated as of November 8, 2004
among
FIDELITY NATIONAL INFORMATION SERVICES, INC.,
as the Borrower,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Swing Line Lender,
BANK OF AMERICA, N.A.
as
Syndication Agent,
and
The Other Lenders Party Hereto
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WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arranger and Sole Book Runner
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arranger
CITIBANK (WEST), FSB,
BANK OF THE WEST,
and
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
1.01 Defined Terms...................................................................................1
1.02 Other Interpretive Provisions..................................................................25
1.03 Accounting Terms...............................................................................25
1.04 Rounding.......................................................................................26
1.05 References to Agreements and Laws..............................................................26
1.06 Times of Day. .................................................................................26
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.................................................................26
2.01 Revolving Loans................................................................................26
2.02 Borrowings, Conversions and Continuations of Revolving Loans...................................27
2.03 Swing Line Loans...............................................................................28
2.04 Prepayments....................................................................................31
2.05 Termination or Reduction of Commitments........................................................32
2.06 Repayment of Loans.............................................................................32
2.07 Interest.......................................................................................33
2.08 Fees...........................................................................................33
2.09 Computation of Interest and Fees...............................................................34
2.10 Evidence of Debt...............................................................................34
2.11 Payments Generally.............................................................................35
2.12 Sharing of Payments............................................................................36
2.13 Increases in Revolving Committed Amount........................................................37
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...............................................................38
3.01 Taxes..........................................................................................38
3.02 Illegality.....................................................................................39
3.03 Inability to Determine Rates...................................................................40
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.........40
3.05 Funding Losses.................................................................................41
3.06 Matters Applicable to all Requests for Compensation............................................42
3.07 Survival.......................................................................................42
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.............................................................42
4.01 Conditions of Initial Credit Extension.........................................................42
4.02 Conditions to all Credit Extensions............................................................44
ARTICLE V REPRESENTATIONS AND WARRANTIES.........................................................................45
5.01 Existence, Qualification and Power; Compliance with Laws.......................................45
5.02 Authorization; No Contravention................................................................45
5.03 Governmental Authorization; Other Consents.....................................................45
5.04 Binding Effect.................................................................................45
5.05 Financial Statements; No Material Adverse Effect...............................................46
5.06 Litigation.....................................................................................46
5.07 No Default.....................................................................................46
5.08 Ownership of Property; Liens...................................................................47
5.09 Environmental Compliance.......................................................................47
5.10 Insurance......................................................................................47
5.11 Taxes..........................................................................................47
5.12 ERISA Compliance...............................................................................47
5.13 Intellectual Property, Licenses, etc...........................................................48
5.14 Subsidiaries...................................................................................48
5.15 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.................48
5.16 Disclosure.....................................................................................49
5.17 Compliance with Laws...........................................................................49
5.18 Solvent........................................................................................49
5.19 Licenses.......................................................................................49
5.20 Employee Matters...............................................................................49
5.21 Foreign Assets Control Regulations, Etc........................................................50
ARTICLE VI AFFIRMATIVE COVENANTS.................................................................................50
6.01 Financial Statements...........................................................................50
6.02 Certificates; Other Information................................................................51
6.03 Notices........................................................................................53
6.04 Preservation of Existence, Etc.................................................................54
6.05 Maintenance of Properties......................................................................54
6.06 Maintenance of Insurance.......................................................................55
6.07 Compliance with Laws...........................................................................55
6.08 Books and Records..............................................................................55
6.09 Inspection Rights..............................................................................55
6.10 Use of Proceeds................................................................................55
6.11 Payment of Taxes...............................................................................55
6.12 Future Subsidiaries............................................................................56
6.13 Maintenance of Corporate Separateness..........................................................56
6.14 Subsidiary Guaranty............................................................................56
ARTICLE VII NEGATIVE COVENANTS...................................................................................57
7.01 Liens..........................................................................................57
7.02 Consolidations and Mergers; Sales of Assets....................................................58
7.03 Investments....................................................................................59
7.04 Limitation on Indebtedness.....................................................................60
7.05 Transactions with Affiliates...................................................................62
7.06 Restricted Payments............................................................................62
7.07 Change in Business.............................................................................62
7.08 Accounting Changes.............................................................................63
7.09 Financial Covenants............................................................................63
7.10 Negative Pledges, Restrictive Agreements, etc..................................................63
7.11 ERISA..........................................................................................63
7.12 Limitation on Activities of Subsidiaries.......................................................64
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES......................................................................64
8.01 Events of Default..............................................................................64
8.02 Remedies Upon Event of Default.................................................................67
8.03 Application of Funds...........................................................................67
ARTICLE IX ADMINISTRATIVE AGENT..................................................................................68
9.01 Appointment and Authorization of Administrative Agent..........................................68
9.02 Delegation of Duties...........................................................................69
9.03 Liability of Administrative Agent..............................................................69
9.04 Reliance by Administrative Agent...............................................................69
9.05 Notice of Default..............................................................................70
9.06 Credit Decision; Disclosure of Information by Administrative Agent.............................70
9.07 Indemnification of Administrative Agent........................................................71
9.08 Administrative Agent in its Individual Capacity................................................71
9.09 Successor Administrative Agent.................................................................72
9.10 Administrative Agent May File Proofs of Claim..................................................72
9.11 Guaranty Matters...............................................................................73
9.12 Other Agents; Arrangers and Book Runner........................................................73
ARTICLE X MISCELLANEOUS..........................................................................................74
10.01 Amendments, Etc................................................................................74
10.02 Notices and Other Communications; Facsimile Copies.............................................75
10.03 No Waiver; Cumulative Remedies.................................................................76
10.04 Attorney Costs, Expenses and Taxes.............................................................76
10.05 Indemnification by the Borrower................................................................77
10.06 Payments Set Aside.............................................................................77
10.07 Successors and Assigns.........................................................................78
10.08 Confidentiality................................................................................81
10.09 Set-off........................................................................................82
10.10 Counterparts...................................................................................82
10.11 Integration....................................................................................82
10.12 Survival of Representations and Warranties.....................................................83
10.13 Severability...................................................................................83
10.14 Tax Forms......................................................................................83
10.15 Replacement of Lenders.........................................................................85
10.16 Governing Law..................................................................................85
10.17 Waiver of Right to Trial by Jury...............................................................86
10.18 Release of Parent Guaranty.....................................................................86
10.19 USA Patriot Act Notice.........................................................................87
10.20 Entire Agreement...............................................................................87
SCHEDULES
2.01 Commitments and Pro Rata Shares
5.05 Supplement to Interim Financial Statements
5.06 Existing Litigation
5.12 ERISA Matters
5.14(a) Subsidiaries
5.14(b) Subsidiary Guarantors
7.01 Existing Liens
7.03 Existing Investments
7.04 Existing Debt
7.05 Affiliate Transactions
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Revolving Loan Notice
B Swing Line Loan Notice
C Revolving Loan Note
D Swing Line Note
E Compliance Certificate
F Assignment and Assumption
G-1 Subsidiary Guaranty
G-2 Parent Guaranty
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of November 8,
2004, among FIDELITY NATIONAL INFORMATION SERVICES, INC., a Delaware corporation
(the "Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent and Swing Line Lender, BANK OF AMERICA, N.A., as
Syndication Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquired EBITDA" means, for any period, EBITDA of any Person or assets
acquired in a Permitted Acquisition during such period and available to be paid
as dividends to the Borrower under applicable Law, in either case as determined
on a pro forma basis for such period as if consummation of such Permitted
Acquisition occurred on the first day of such period.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the Equity
Interests of any Person, or otherwise causing any Person to become a Subsidiary
or (c) a merger or consolidation or any other combination with another Person
(other than with a Person that is a Subsidiary); provided that the Borrower or
one of its Subsidiaries is the surviving entity.
"Additional Commitment Agreement" shall have the meaning given to such
term in Section 2.13(c).
"Additional Commitment Amount" shall have the meaning given to such term
in Section 2.13(a).
"Additional Lender" has the meaning assigned to such term in Section
2.13(b).
"Adjusted EBITDA" means, for any period, the sum of EBITDA and Acquired
EBITDA.
"Administrative Agent" means Wachovia in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% of the
Voting Stock of such Person.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Wachovia in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Credit Agreement.
"Applicable Debt" means obligations described in clauses (a) or (f) of
the definition of Indebtedness contained herein (other than obligations
permitted by Section 7.04(f) and (g)).
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating as set forth below:
PRICING DEBT RATINGS EURODOLLAR
LEVEL S&P/XXXXX'X FACILITY FEE RATE + BASE RATE +
----- ----------- ------------ ------ -----------
1 A-/A3 or higher 0.100% 0.350% 0.000%
2 >BBB+/Baa1 0.125% 0.425% 0.000%
3 >BBB/Baa2 0.150% 0.500% 0.000%
4 >BBB-/Baa3 0.200% 0.675% 0.000%
5 BB+/Ba1 or lower 0.250% 1.000% 0.250%
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For purposes of this Agreement, "Debt Rating" means, as of any date of
determination, the rating as determined by either S&P or Xxxxx'x (collectively,
the "Debt Ratings") of the Borrower's non-credit-enhanced, senior unsecured
long-term debt; provided that if a Debt Rating is issued by each of the
foregoing rating agencies, then the higher of such Debt Ratings shall apply
(with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating
for Pricing Level 5 being the lowest), unless there is a split in Debt Ratings
of more than one level, in which case the Pricing Level that is one level higher
than the Pricing Level of the lower Debt Rating shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(viii).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof pursuant to Section 6.02(f) and
ending on the date immediately preceding the date of the next such change and,
in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
date of the next such change.
Notwithstanding the foregoing, for any period that the Borrower has no
Debt Rating from S&P and Xxxxx'x, the Applicable Rate during such period shall
be the following percentages per annum, based upon the Leverage Ratio as set
forth below:
APPLICABLE
PRICING FACILITY MARGIN FOR LIBOR APPLICABLE MARGIN
LEVEL LEVERAGE RATIO FEE LOANS FOR BASE RATE LOANS
----- -------------- --- ----- -------------------
1 < 1.0 to 1.0 0.150% 0.500% 0.000%
2 > 1.0 to 1.0 but < 1.75 0.200% 0.675% 0.000%
to 1.0
3 > 1.75 to 1.0 0.250% 1.000% 0.250%
The Applicable Rate based on the foregoing pricing matrix shall, in each
case, be determined and adjusted quarterly on the date ten (10) Business Days
after the date on which the Administrative Agent has received from the Borrower
the quarterly company-prepared financial information (for each fiscal quarter of
the Borrower), annual financial information (in the case of the fourth fiscal
quarter of the Borrower) and certifications required to be delivered to the
Administrative Agent and the Lenders in accordance with the provisions of
Sections 6.01(a), 6.01(b) and 6.02(b) (each an "Interest Determination Date").
Such Applicable Rate shall be effective from such Interest Determination Date
until the next such Interest Determination Date. If the Borrower shall fail to
provide the quarterly financial information and certifications in accordance
with the provisions of Sections 6.01(a), 6.01(b) and 6.02(b), the Applicable
Rate shall, on the date ten (10) Business Days after the date by which the
Borrower was so required to provide such financial information and
certifications to the Administrative Agent and the Lenders, be based on Pricing
Level 3 until such time as such information and certifications are
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provided, whereupon the Pricing Level shall be determined by the then current
Leverage Ratio. The initial Applicable Fee shall be based on the Leverage Ratio
as set forth in the officer's certificate delivered pursuant to Section 6.02(d).
"Approved Fund" has the meaning specified in Section 10.07(g).
"Approved Securities" means fixed maturity securities or preferred stock
which are rated as Investment Grade by at least one of the Rating Agencies.
"Arranger" means Wachovia Capital Markets, LLC, in its capacity as
co-lead arranger and sole book runner.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease.
"Audited Financial Statements" means the audited combined balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended December 31,
2003, and the related combined statements of income or operations, shareholders'
equity and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.
"Availability Period" means the period from and including the Closing
Date to the Maturity Date.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C.Section 101, et seq.).
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Wachovia as
its "prime rate." The "prime rate" is a rate set by Wachovia based upon various
factors including Wachovia's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Wachovia shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
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"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures by the Borrower and its Subsidiaries during such period that, in
conformity with GAAP, are or are required to be included as additions during
such period to property, plant or equipment, and including capitalized software
expenditures, reflected in the consolidated statement of cash flows of the
Borrower and its Subsidiaries.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease
on the balance sheet of that Person.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
constituting a Capital Lease and, for purposes of each Loan Document, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
in any Person that is a corporation, each class of partnership interest in any
Person that is a partnership, and each class of membership interest in any
Person that is a limited liability company, and any warrants or options to
purchase or otherwise acquire any such equity interests.
"Cash Equivalents" means:
(a) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof, in each case
having maturities of not more than 12 months from the date of
acquisition thereof;
(b) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality
thereof having maturities of not more than 12 months from the date of
acquisition thereof and, at the time of acquisition, having a rating of
at least A-2 or P-2 (or long-term ratings of at least A3 or A-) from
either Rating Agency, or, with respect to municipal bonds, a rating of
at least MIG 2 or VMIG 2 from Xxxxx'x;
5
(c) commercial paper issued by any Lender or any bank holding
company owning any Lender;
(d) commercial paper maturing not more than 12 months after the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 or P-1 from either Rating Agency and commercial
paper maturing not more than 90 days after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2
from either Rating Agency;
(e) domestic and eurodollar certificates of deposit or bankers'
acceptances maturing no more than one year after the date of acquisition
thereof which are either issued by any Lender or any other banks having
combined capital and surplus of not less than $100,000,000 (or in the
case of foreign banks, the dollar equivalent thereof) or are insured by
the FDIC for the full amount thereof;
(f) repurchase agreements with a term of not more than 30 days
for, and secured by, underlying securities of the type without regard to
maturity described in clauses (a), (b) and (e) above entered into with
any bank meeting the qualifications specified in clause (e) above or
securities dealers of recognized national standing; and
(g) shares of investment companies that are registered under the
Investment Company Act of 1940 and invest solely in one or more of the
types without regard to maturity of securities described in clauses (a)
through (f) above.
"Change of Control" means, and shall be deemed to have occurred if: (a)
at any time Continuing Directors shall not constitute a majority of the Board of
Directors of the Borrower; or (b) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Parent or Persons
Controlled by it, shall at any time have acquired direct or indirect beneficial
ownership of a percentage equal to or more than 50% of the outstanding Voting
Stock of the Borrower prior to the Distribution or 35% thereafter.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01, and (b) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
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"Commitment Percentage" means, with respect to any Lender, the
percentage of the total Commitment represented by such Lender's Commitment. If
the Commitment has terminated or expired, the Commitment Percentage of any
Lender shall be determined based upon the Commitment most recently in effect,
giving effect to any assignments.
"Compensation Period" has the meaning specified in Section 2.11(c)(ii).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, with or without recourse, guaranteeing or intended to
guarantee any Indebtedness, lease, dividend or other monetary obligation (the
"primary obligations") of another Person (the "primary obligor") in any manner,
including any obligation of that Person (a) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (b) to advance or
provide funds for the payment or discharge of any such primary obligation or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the holder
of any such primary obligation against loss in respect thereof. The amount of
any Contingent Obligation shall be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith. Notwithstanding
the foregoing, the term "Contingent Obligation" shall not include (a)
endorsements of instruments for deposit or collection in the ordinary course of
business, and (b) obligations of NTINY under insurance or insurance related
contracts entered into by NTINY in the ordinary course of its business (but not
including any of such contracts that constitutes financial reinsurance).
"Continuing Director" means, at any date, an individual (a) who is a
member of the Board of Directors of the Borrower on the Closing Date, (b) who,
as at such date, has been a member of such Board of Directors for at least the
12 preceding months (or, for the period comprising the first 12 months after the
Closing Date, has been a member of the Board of Directors at least since the
Closing Date), or (c) who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
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"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Revolving
Borrowing and (b) a Swing Line Borrowing.
"CTA" means LSI Title Company (a/k/a CTC of Alameda), a California
corporation.
"Debt Rating" has the meaning set forth in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States, any state
thereof or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Default" means any event or condition that, with the giving of any
notice, the passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans or participations in Swing Line Loans required to
be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"Designated Subsidiary" means FNFC and its Subsidiaries.
"Disposition" means: (a) the sale, lease, conveyance, issuance or other
disposition of property by the Borrower or any Subsidiary, other than sales,
conveyances or other dispositions expressly permitted under Section 7.02(a),
7.02(b) or 7.02(c); and (b) the sale or transfer by the Borrower or any
Subsidiary of the Borrower of any equity securities issued by any Subsidiary of
the Borrower.
"Distribution" means the distribution by the Parent (if made), after the
consummation of the IPO, of the Parent's remaining shares of the common stock of
the Borrower.
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"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiaries" means all Subsidiaries of the Borrower which are
organized and existing under the laws of any state located in the United States.
"EBITDA" means, for any period, for the Borrower and its Subsidiaries,
an amount equal to the sum of (a) Net Income, (b) the amount of interest charges
deducted in determining such Net Income, (c) the amount of taxes, based on or
measured by income, used or included in the determination of such Net Income,
and (d) the amount of depreciation and amortization expense deducted in
determining such Net Income, in each case for the Borrower and its Subsidiaries
for such period.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, Laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any of its Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all shares,
interests (including membership and partnership interests), participations or
other equivalent (however designated, whether voting or non-voting) of such
Person's capital, whether now outstanding or issued after the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as
9
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan (rounded up to the next 1/100th of 1%):
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery
on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Wachovia and with a term equivalent to such Interest Period
would be offered by Wachovia's London Branch to major banks in the
London interbank eurodollar market at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Rate Loan" means a Revolving Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
10
"Exchange Act" means the Securities Exchange Act of 1934.
"Facility Fee" has the meaning specified in Section 2.08(a).
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to the next 1/100 of 1%) charged to Wachovia on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated as of October 19, 2004,
among the Borrower, the Administrative Agent and the Arranger, as amended.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of 12 consecutive calendar months ending
on December 31.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (i)
EBITDA plus Rent Expense for such period to (ii) Interest Expense plus Rent
Expense for such period. EBITDA, Interest Expense and Rent Expense shall be
determined on a trailing four Fiscal Quarter basis as at the end of each Fiscal
Quarter for each Test Period.
"Foreign Lender" has the meaning specified in Section 10.14(a)(i).
"FNFC" means FNF Capital, Inc., a Delaware corporation, formerly known
as Granite Financial Inc.
"Fund" has the meaning specified in Section 10.07(g).
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive,
11
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantied Parties" has the meaning set forth in Section 1.1 of the
Subsidiary Guaranty.
"Guaranty Release Event" means the occurrence of either of the following
events: (a) the Borrower's Debt Rating by S&P is equal to or greater than BBB+
or (b) the Borrower's Debt Rating by Xxxxx'x is equal to or greater than Baa1.
"Guaranty Trigger Event" means the occurrence of each of the following
events: (a) the Borrower's Debt Rating by S&P is less than BBB+ and (b) the
Borrower's Debt Rating by Xxxxx'x is less than Baa1.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes,
regulated pursuant to any Environmental Law.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments or incurred in connection with
bankers' acceptances, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
12
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable,
including reinsurance payables, in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) Capitalized Lease Liabilities;
(g) Synthetic Lease Obligations;
(h) obligations in respect of Redeemable Stock of such Person;
(i) Receivables Facility Attributed Indebtedness; and
(j) all Contingent Obligations of such Person in respect of any
of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
all recourse Indebtedness of any partnership, joint venture or limited liability
company in which such Person is a general partner, a joint venturer or a member
and for which such Person has liability. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date. "Indebtedness" shall not include obligations of NTINY
under or pursuant to any insurance or insurance related contracts entered into
by NTINY in the ordinary course of its business.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Independent Auditor" has the meaning set forth in Section 6.01(a).
"Information" has the meaning set forth in Section 10.08.
"Interest Expense" means, for any period for the Borrower and its
Subsidiaries, the aggregate amount of interest expense during such period
determined in accordance with GAAP.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three
13
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan (including a Swing Line Loan), the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Revolving Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests or other securities of another Person, (b) a
loan, advance or capital contribution to, guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Investment Grade" means, with respect to ratings by S&P, BBB- and
above, and with respect to ratings by Xxxxx'x, Baa3 and above.
"IPO" means the initial public offering of the Borrower's common stock.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
14
Authority having the force of Law or, in the case of Section 3.02 and 3.04 only,
whether or not having the force of Law.
"Legal Requirements" means all applicable Laws made by any Governmental
Authority having jurisdiction over the Borrower or a Subsidiary of the Borrower.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Leverage Ratio" means, for any period, the ratio of (i) Total Debt as
of the last day of such period to (ii) Adjusted EBITDA for such period. Adjusted
EBITDA shall be determined on a trailing four Fiscal Quarter basis as at the end
of each Fiscal Quarter for each Test Period. Total Debt shall be determined as
at the end of each Fiscal Quarter for each Test Period.
"License" means any license, certificate of authority, permit, franchise
or other authorization which is required to be obtained from any Governmental
Authority in connection with the operation, ownership or transaction of
insurance business.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Parent Guaranty,
the Subsidiary Guaranty, the Fee Letter, and all other documents executed and
delivered by the Borrower to the Administrative Agent or any Lender in
connection herewith.
"Loan Parties" means, collectively, the Borrower, the Parent and each
Subsidiary Guarantor.
"Master Agreement" has the meaning specified in the definition of "Swap
Contract".
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken
15
as a whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Material Subsidiary" means, at any time, (a) each Subsidiary of the
Borrower identified as a Material Subsidiary on Schedule 5.14(a), (b) each other
Subsidiary having (on a consolidated basis with its Subsidiaries) at such time
either (i) total (gross) revenues for the Test Period in excess of 7.5% of the
total (gross) revenues of the Borrower and its Subsidiaries for such Test Period
or (ii) total assets, as of the last day of the preceding Fiscal Quarter, having
a net book value in excess of 7.5% of the total assets of the Borrower and its
Subsidiaries as of such day, in each case, based upon the Borrower's most recent
annual or quarterly financial statements delivered to the Administrative Agent
under Section 6.01 and (c) each Subsidiary identified as a Material Subsidiary
pursuant to Section 6.14(a).
"Maturity Date" means the earliest of (a) November 8, 2009 or (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.05, and
(c) the date of termination of the commitment of each Lender to make Loans
pursuant to Section 8.02.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Net Disposition Proceeds" means, as to any Disposition by a Person,
proceeds in cash as and when received by such Person, net of (a) the direct
costs relating to such Disposition excluding amounts payable to such Person or
any Affiliate of such Person, (b) the amount of all taxes paid or reasonably
estimated to be payable by such Person in connection therewith, but including
the excess, if any, of the estimated taxes payable in connection with such
Disposition over the actual amount of taxes paid, immediately after the payment
of such taxes, (c) amounts required to be applied to repay principal, interest
and prepayment premiums and penalties on Indebtedness secured by a Lien on the
asset which is the subject of such Disposition, and (d) the amount of any
reasonable reserve established in accordance with GAAP against any liabilities
(other than any taxes deducted pursuant to clause (b) above) associated with the
assets sold or disposed of and retained by the Borrower or any of its
Subsidiaries (provided that the amount of any subsequent reduction of such
reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Disposition Proceeds realized on the date
of such reduction).
"Net Income" means, for any period, the net income of the Borrower and
its Subsidiaries from continuing operations before extraordinary items
(excluding gains and losses from Dispositions of assets) for that period.
16
"Net Worth" means, at any time, the sum of all amounts (without
duplication) which, in accordance with GAAP, would be included in the Borrower's
stockholders' equity (excluding unrealized gains or losses recorded pursuant to
FAS 115) as required to be reported in the Borrower's then most recent
consolidated balance sheet required to be delivered to the Administrative Agent
pursuant to this Agreement.
"Non-Recourse Debt" means, with respect to the Borrower or any of its
Subsidiaries, Indebtedness of the Borrower or any of its Subsidiaries for which
the owner of such Indebtedness has no recourse, directly or indirectly, to the
Borrower or any of its Subsidiaries for the principal, premium, if any, and
interest on such Indebtedness, except pursuant to mortgages, deeds of trust or
security interests in respect of specific land or equipment or other real or
personal property interests of the Borrower or any of its Subsidiaries.
"Notes" means, collectively, the Revolving Loan Notes and the Swing Line
Note.
"NTINY" means National Title Insurance of New York, a New York
corporation.
"Obligations" means all advances to, and debts, liabilities and monetary
obligations of, any Loan Party to any Lender, the Administrative Agent, any
Indemnitee or any Affiliate of any Lender arising under any Loan Document or any
Swap Contract related to any Loan Document entered into with any Lender or
Affiliate of a Lender so long as, at the time of execution of such Swap
Contracts, such Lender is a party to this Agreement, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising, including interest and fees that
accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any Person as of
any date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
(i) the unrecovered investment of purchasers or transferees of assets so
transferred, and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such type and
that neither (x) have the effect of limiting the loss or credit risk of such
purchasers or transferees with respect to payment or performance by the obligors
of the assets so transferred nor (y) impair the characterization of the
transaction as a true sale under applicable Laws (including Debtor Relief Laws);
(b) the monetary obligations under any financing lease or so-called "synthetic",
tax retention or off-balance sheet lease transaction which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
17
characterized as indebtedness; (c) the monetary obligations under any sale and
leaseback transaction which does not create a liability on the consolidated
balance sheet of such Person and its Subsidiaries; or (d) any other monetary
obligation arising with respect to any other transaction which (i) upon the
application of any Debtor Relief Law to such Person or any of its Subsidiaries,
would be characterized as indebtedness or (ii) is the functional equivalent of
or takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheet of such Person and its Subsidiaries (for purposes of
this clause (d), any transaction structured to provide tax deductibility as
interest expense of any dividend, coupon or other periodic payment will be
deemed to be the functional equivalent of a borrowing).
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" or "Outstandings" means, on any date, the aggregate
outstanding principal amount of Revolving Loans and Swing Line Loans after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date.
"Parent" means Fidelity National Financial, Inc., a Delaware
corporation.
"Parent Credit Agreement" means that certain Credit Agreement dated as
of November 4, 2003 among the Parent, Bank of America, N.A., as administrative
agent, and a syndicate of lenders, as amended (including the amendments made
pursuant to the Second Amendment).
"Parent Credit Facility" means that certain credit facility extended to
the Parent pursuant to the Parent Credit Agreement not to exceed $850,000,000 in
aggregate principal amount.
"Parent Guaranty" means the guaranty executed and delivered by the
Parent pursuant to the terms of this Agreement, substantially in the form of
Exhibit G-2 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Participant" has the meaning specified in Section 10.07(d).
18
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisition" means, at any time of determination, any
Acquisition by the Borrower or any of its Subsidiaries with respect to which
each of the following requirements are met:
(a) such Acquisition has been approved and recommended by the
board of directors or general partner (or similar entity) of the Person
to be acquired or which owns the assets of the Person be acquired;
(b) prior to and after giving effect to such Acquisition, no
Default (including without limitation under the provisions of Section
7.09) shall have occurred and be continuing, or would result therefrom;
(c) the business of the Person or assets to be acquired comprises
a real estate related business, an information based technology
solutions and processing services business and/or businesses or assets
related thereto;
(d) the total consideration payable in cash in respect of any one
Acquisition constituting a Permitted Acquisition does not exceed
$250,000,000 and the total consideration payable in cash in respect of
all Acquisitions constituting Permitted Acquisitions in any Fiscal Year
does not exceed $500,000,000 in the aggregate; and
(e) if the business being acquired becomes a new Subsidiary or
causes a then-existing Subsidiary to become a Material Subsidiary, such
Subsidiary shall have duly executed and delivered (and supplied
appropriate resolutions and an incumbency certificate supporting) the
Subsidiary Guaranty substantially concurrently with the consummation of
such Acquisition if required by Section 6.12.
provided that the requirements set forth in clause (d) shall not apply if and so
long as the Borrower's Total Debt to Total Capitalization Ratio is less than
0.30:1, as demonstrated in the then most recent Compliance Certificate delivered
to the Administrative Agent.
"Permitted Liens" has the meaning specified in Section 7.01.
19
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Primary Investments" means portfolio investments in the ordinary course
of business by the Borrower or any of its Subsidiaries in any of the following:
(a) operating deposit accounts maintained in the Borrower's name
with FDIC member institutions;
(b) Cash Equivalents; or
(c) Approved Securities.
"Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Rating Agency" means S&P or Xxxxx'x, collectively, the "Rating
Agencies".
"Receivables Facility Attributed Indebtedness" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction other than a purchase.
"Redeemable Stock" means any Equity Interests of the Borrower or any of
its Subsidiaries which prior to November 30, 2009 are or may be (a) mandatorily
redeemable, (b) redeemable at the option of the holder thereof or (c)
convertible into Indebtedness.
"Register" has the meaning set forth in Section 10.07(c).
"Rent Expense" means, for any period for the Borrower and its
Subsidiaries, the aggregate amount of rent expense during such period determined
in accordance with GAAP.
20
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing, conversion or continuation of Revolving Loans, a Revolving Loan
Notice, and (b) with respect to a Swing Line Loan, a Swing Line Loan Notice
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the Aggregate Commitments or, if the commitment of each
Lender to make Loans has been terminated pursuant to Section 8.02, Lenders
holding in the aggregate more than 50% of the Outstandings (with the aggregate
amount of each Lender's risk participation and funded participation in Swing
Line Loans being deemed "held" by such Lender for purposes of this definition);
provided that the Commitment of, and the portion of the Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer, controller, secretary or assistant secretary
of any Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of any Loan Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payments" has the meaning specified in Section 7.06.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to Section
2.01.
"Revolving Committed Amount" has the meaning assigned to such term in
Section 2.01.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit C.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b)
a conversion of Revolving Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
21
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Second Amendment" means that certain Second Amendment to Credit
Agreement, dated as of October 29, 2004, among the Parent, Bank of America,
N.A., as administrative agent, and a syndicate of lenders
"Secondary Investments" means Investments by the Borrower or any of its
Subsidiaries in the ordinary course of business not constituting Primary
Investments or Acquisitions.
"Securitization Vehicle" means a special purpose vehicle that is a
Wholly-Owned Subsidiary of the Borrower and is a corporation, limited liability
company, trust or other person organized for the limited purpose of entering
into securitization transactions by purchasing, or receiving by way of capital
contributions, assets from the Borrower and obtaining financing for such assets
from third parties, and whose structure is designed to insulate such vehicle
from the credit risk of the Borrower.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section 548
of the Bankruptcy Code and for purposes of the New York Uniform Fraudulent
Transfer Act; (b) the present fair saleable value of the property of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such Person
is able to realize upon its property and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature in
the normal course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital.
"Subsidiary" of a Person means any Person of which more than 50% of the
Voting Stock, or other Equity Interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof. Unless
the context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each Material Subsidiary of the Borrower
identified as a Subsidiary Guarantor on Schedule 5.14(b), each of which are
required to execute and deliver to the Administrative Agent the Subsidiary
Guaranty, and each other Material Subsidiary that is required to execute the
Subsidiary Guaranty pursuant to Sections 6.12 or 6.14.
22
"Subsidiary Guaranty" means the subsidiary guaranty executed and
delivered by each Subsidiary Guarantor pursuant to the terms of this Agreement,
substantially in the form of Exhibit G-1 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.03.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.03.
"Swing Line Lender" means Wachovia in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.03(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.03(b), which, if in writing, shall be substantially in the
form of Exhibit B.
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"Swing Line Note" means a promissory note made by the Borrower in favor
of the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit D.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Syndication Agent" has the meaning specified in the introductory
paragraph hereto.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning specified in Section 3.01(a).
"Test Period" means, for any determination under this Agreement, the
four consecutive Fiscal Quarters of the Borrower then last ended.
"Total Capitalization" means, at any time, the sum of Net Worth and
Total Debt.
"Total Debt" means, at any time, with respect to the Borrower and its
Subsidiaries, the sum, without duplication, of (a) Applicable Debt at such time,
(b) noncontingent reimbursement or payment obligations in respect of the items
referred to in clause (b) of the definition of Indebtedness contained in this
Agreement at such time, and (c) Contingent Obligations in respect of Applicable
Debt of another Person at such time, minus (d) Non-Recourse Debt of the
Designated Subsidiary.
"Total Debt to Total Capitalization Ratio" means, at any time, the ratio
of Total Debt to Total Capitalization at such time.
"Type" means, with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
24
"Voting Stock" means, with respect to any Person, shares of such
Person's Equity Interests having the right to vote for the election of directors
or other governing body of such Person under ordinary circumstances.
"Wachovia" means Wachovia Bank, National Association and its successors.
"Wholly-Owned Subsidiary" means any Person in which (other than
directors' qualifying Equity Interests required by Law) 100% of the Voting Stock
and 100% of the Equity Interests of every other class, in each case, at the time
as of which any determination is being made, is owned, beneficially and of
record, by the Borrower, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii)The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time
25
to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all amendments
and modifications thereto and shall also include all statutory and regulatory
provisions and rulings consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references herein
to times of day shall be references to Eastern time (daylight or standard, as
applicable).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that (i)
the sum of the aggregate principal amount of outstanding Revolving Loans shall
not exceed FIVE HUNDRED MILLION AND 00/100 DOLLARS ($500,000,000.00) (as such
aggregate maximum amount may be increased from time to time as provided in
Section 2.13 or reduced from time to time as provided in
26
Section 2.05, the "Revolving Committed Amount") and (ii) after giving effect to
any Revolving Borrowing, (A) the Outstandings shall not exceed the Aggregate
Commitments, and (B) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Commitment. Within the limits of
each Lender's Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under Section 2.04, and
reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF REVOLVING LOANS.
(a) Each Revolving Borrowing, each conversion of Revolving Loans from
one Type to the other, and each continuation of Eurodollar Rate Loans shall be
made upon the Borrower's irrevocable notice to the Administrative Agent, which
may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.
Each telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(b)
and (c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Revolving Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Revolving Borrowing, a
conversion of Revolving Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Revolving Loans to be borrowed, converted or continued, (iv)
the Type of Revolving Loans to be borrowed or to which existing Revolving Loans
are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto.
If the Borrower fails to specify a Type of Revolving Loan in a Revolving
Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Revolving Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans
in any such Revolving Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
27
(b) Following receipt of a Revolving Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Pro Rata Share of
the applicable Revolving Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Revolving Borrowing,
each Lender shall make the amount of its Revolving Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Revolving Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Wachovia with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided, however, that
if, on the date the Revolving Loan Notice with respect to such Borrowing is
given by the Borrower, there are Swing Line Loans outstanding, then the proceeds
of such Borrowing shall be applied, first, to the payment in full of any such
Swing Line Loans, and second, to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Wachovia's prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After giving effect to all Revolving Borrowings, all conversions of
Revolving Loans from one Type to the other, and all continuations of Revolving
Loans as the same Type, there shall not be more than five Interest Periods in
effect with respect to Revolving Loans.
2.03 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Revolving Loans of the Lender acting as
28
Swing Line Lender, may exceed the amount of such Lender's Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, and provided, further, that the Borrower shall not use the proceeds
of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.03, prepay under Section 2.04, and
reborrow under this Section 2.03. Each Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby, subject to the condition set forth in Section 2.03(a)(ii)
above, irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $500,000 or a whole multiple of
$100,000 in excess thereof), and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the first proviso to the first sentence of Section
2.03(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Loan in an amount equal to
such Lender's Pro Rata Share of the
29
amount of Swing Line Loans then outstanding. Such request shall be made
in writing (which written request shall be deemed to be a Revolving Loan
Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans. The Swing Line
Lender shall furnish the Borrower with a copy of the applicable
Revolving Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent's
Office not later than 1:00 p.m. on the day specified in such Revolving
Loan Notice, whereupon, subject to Section 2.03(c)(ii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Loan
to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Revolving Borrowing in accordance with Section 2.03(c)(i), the
request for Base Rate Loans submitted by the Swing Line Lender as set
forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant
Swing Line Loan and each Lender's payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.03(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(i), the Swing Line
Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(d) Each Lender's obligation to make Revolving Loans or to purchase and
fund risk participations in Swing Line Loans pursuant to this Section 2.03(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing, including whether or not the
conditions set forth in Section 4.02 shall have been satisfied. No such funding
of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.
30
(e) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was
funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances
described in Section 10.06 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate. The Administrative Agent will make such demand upon
the request of the Swing Line Lender.
(f) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant
to this Section 2.03 to refinance such Lender's Pro Rata Share of any Swing Line
Loan, interest in respect of such Pro Rata Share shall be solely for the account
of the Swing Line Lender.
(g) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.04 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Revolving Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) one Business Day
prior to any date of prepayment of Base Rate Loans; (ii) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Revolving Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by
31
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Revolving Loans of
the Lenders in accordance with their respective Pro Rata Shares.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000, or,
if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Outstandings at any time exceed the Aggregate
Commitments then in effect, the Borrower shall immediately prepay Loans in an
aggregate amount equal to such excess.
2.05 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or from
time to time permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Outstandings would exceed the
Aggregate Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Commitments. Any
reduction of the Aggregate Commitments shall be applied to the Commitment of
each Lender according to its Pro Rata Share. All Facility Fees accrued until the
Closing Date of any termination of the Aggregate Commitments shall be paid on
the Closing Date of such termination.
2.06 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.
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(b) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date seven days after such Loan is made and (ii) the Maturity
Date.
2.07 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.08 FEES.
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
("Facility Fee") equal to the Applicable Rate times the actual daily amount of
the Aggregate Commitments (or, if the Aggregate Commitments have terminated, on
the Outstanding Amount of all Loans), regardless of usage. The Facility Fee
shall accrue at all times during the Availability Period (and thereafter so long
as any Loans remain outstanding), including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date (and, if applicable, thereafter on demand). The
Facility Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and
33
multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. The Borrower shall pay to the Arranger, the
Administrative Agent and each Lender for their own respective accounts fees in
the amounts and at the times specified in the Fee Letter. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.
2.09 COMPUTATION OF INTEREST AND FEES. All computations of interest
for Base Rate Loans when the Base Rate is determined by Wachovia's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.11(a), bear
interest for one day.
2.10 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Revolving Loan Note and/or a Swing Line
Note, as applicable, which shall evidence such Lender's Loans in addition to
such accounts or records. Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans
and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Swing Line Loans. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
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2.11 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions of the definition of "Interest Period", if
any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds at the
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Revolving Loan included
35
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) .The obligations of the Lenders hereunder to make Revolving Loans
and to fund participations in Swing Line Loans are several and not joint. The
failure of any Lender to make any Revolving Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Revolving Loan or
purchase its participation.
(f) .Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.12 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Revolving Loans made
by it, or the participations in Swing Line Loans held by it, any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Revolving Loans made by them and/or such subparticipations in the
participations in Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Revolving Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the
36
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by Law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
2.13 INCREASES IN REVOLVING COMMITTED AMOUNT.
(a) So long as no Default or Event of Default has occurred and is
continuing, from time to time after the Closing Date (but prior to the date
which is 180 days immediately preceding the Maturity Date), the Borrower may,
upon at least 15 days' written notice to the Administrative Agent (who shall
promptly notify each Lender of such notice), propose to increase the Revolving
Committed Amount by a minimum amount of $25,000,000 and in integral multiples of
$5,000,000 above such amount, up to an aggregate maximum amount not to exceed
$100,000,000 (the amount of any such increase, the "Additional Commitment
Amount"). Each Lender shall have the right for a period of 10 days following
receipt of such notice, to elect by written notice to the Administrative Agent
to increase its Commitment by a principal amount equal to its Commitment
Percentage of the Additional Commitment Amount. No Lender (or any successor
thereto) shall have any obligation to increase its Commitment or its other
obligations under this Credit Agreement and the other Credit Documents, and any
decision by a Lender to increase its Commitment shall be made in its sole
discretion independently from any other Lender. Any Lender not responding within
such time period shall be deemed to have declined to increase its Commitment.
(b) If any Lender shall not elect to increase its Commitment pursuant to
subsection (a) of this Section, the Borrower may designate another bank or other
financial institution (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to, in the case of any such Person
that is an existing Lender, increase its Commitment and in the case of any other
such Person (an "Additional Lender"), become a party to this Agreement;
provided, however, that any new bank or financial institution must conform to
the definition of Eligible Assignee, must have a Commitment of at least
$5,000,000 and must be acceptable to the Administrative Agent, which acceptance
will
37
not be unreasonably withheld or delayed. The sum of the increases in the
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Commitments of the Additional Lenders shall not in the aggregate exceed the
portion of the Additional Commitment Amount which has not been subscribed
pursuant to subsection (a) immediately above.
(c) An increase in the Revolving Committed Amount pursuant to this
Section 2.13 shall become effective upon the receipt by the Administrative Agent
of an agreement in form and substance satisfactory to the Administrative Agent
(each, an "Additional Commitment Agreement") signed by the Borrower, by each
Additional Lender and by each other Lender whose Commitment is to be increased,
setting forth the new Commitments of such Lenders and Additional Lenders and
setting forth the agreement of each Additional Lender to become a party to this
Credit Agreement and to be bound by all the terms and provisions hereof,
together with such evidence of appropriate corporate authorization on the part
of the Borrower with respect to the increase in the Revolving Committed Amount
and such opinions of counsel for the Borrower with respect to the increase in
the Revolving Committed Amount as the Administrative Agent may reasonably
request.
(d) Upon the acceptance of an Additional Commitment Agreement by the
Administrative Agent, the Revolving Committed Amount shall automatically be
increased by the amount of the Commitments added through such agreement and
Schedule 2.01 shall automatically be deemed amended to reflect the Commitments
of all Lenders after giving effect to the addition of such new Commitments.
(e) Upon any increase in the Revolving Committed Amount pursuant to this
Section 2.13 that is not pro rata among all Lenders, if any Revolving Loans are
outstanding at the time of such increase, then the Borrower will prepay one or
more existing Revolving Loans in an amount necessary such that after giving
effect to the increase in the Revolving Committed Amount each Lender will hold
its pro rata share (based on its Commitment Percentage of the revised Revolving
Committed Amount) of outstanding Revolving Loans.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower and each other Loan Party to or
for the account of the Administrative Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of the Administrative Agent and each Lender, taxes
imposed on or measured by its overall net income, and franchise taxes imposed on
it (in lieu of net income taxes), by the jurisdiction (or any political
38
subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower and each other Loan Party agrees to pay
any and all present or future stamp, court or documentary taxes and any other
excise or property taxes or charges or similar levies which arise from any
payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) Without duplication of any amounts paid by the Borrower under
Section 3.01(a), if the Borrower shall be required to deduct any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be made within 30 days after the date the Lender
or the Administrative Agent makes a demand therefor.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to
39
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason adequate and reasonable means do not exist for determining
the Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Revolving Borrowing of Base Rate Loans in the
amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by Section 3.04(c)), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
40
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal amount
of each Eurodollar Rate Loan equal to the actual costs of such reserves
allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower
shall have received at least 15 days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, setting forth in reasonable detail the
amount payable to such Lender, the Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise, but excluding any payment or prepayment as a result
of a Lender's failure to make a payment pursuant to Section 2.11(c)(ii));
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.15;
including any loss, cost or expense (excluding loss of anticipated profits)
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Borrower
41
shall also pay any customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth in reasonable detail the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, the Administrative
Agent or such Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may replace such Lender in accordance with Section 10.15.
3.07 SURVIVAL. All of the Borrower's obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent in form and substance satisfactory to the
Administrative Agent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
Borrower, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
42
' (iii) the Subsidiary Guaranty, duly executed by each Subsidiary
Guarantor, and the Parent Guaranty, duly executed by the Parent;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as of the Closing Date as the Administrative Agent may
require evidencing the identity, authority and capacity of each such
Responsible Officer authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(v) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly
organized or formed, and that each Loan Party as of the Closing Date is
validly existing and in good standing in its state of incorporation or
organization and/or domicile;
(vi) (A) a favorable opinion of Xxxxx & Xxxxxxx, counsel to the
Loan Parties, addressed to the Administrative Agent and each Lender, as
to matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request, and (B) a favorable opinion of
New York counsel to the Loan Parties, reasonably acceptable to the
Administrative Agent, addressed to the Administrative Agent and each
Lender as to such New York Law matters as the Required Lenders may
reasonably request;
(vii) a certificate of a Responsible Officer of each Loan Party
as of the Closing Date either (A) confirming that all consents, licenses
and approvals required in connection with the execution, delivery and
performance of the Loan Documents by such Loan Party have been obtained,
or (B) stating that no such consents, licenses or approvals are so
required;
(viii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and (B) that there has been no
event or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) the
current Debt Ratings;
(ix) evidence satisfactory to the Administrative Agent that the
Second Amendment and all documents executed in connection therewith
(each in form and substance satisfactory to the Administrative Agent)
have been executed and that the conditions set forth in Section 4(a) of
the Second Amendment have been satisfied;
(x) a certificate for benefit of itself and the Lenders provided
by the Borrower that sets forth information required by the Patriot Act
(as defined in Section 10.19) including, without limitation, the
identity of the Loan Parties, the names and addresses of the Loan
Parties and other information that will allow the
43
Administrative Agent or any Lender, as applicable, to identify the Loan
Parties in accordance with the Patriot Act; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the Swing Line Lender or the
Required Lenders reasonably may require.
(b) Any fees (including upfront fees to the Lenders) required to be paid
on or before the Closing Date shall have been paid, and the Fee Letter shall be
in full force and effect.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
(d) The Closing Date shall have occurred on or before November 8, 2004.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Revolving Loan
Notice requesting only a conversion of Revolving Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower contained in
Article V or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith, shall be
true and correct on and as of the date of such Credit Extension, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
through (f), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension.
(c) The Administrative Agent and, if applicable, the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
Each Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
44
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. The
Borrower and each of its Subsidiaries (a) is duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (c) or (d),
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which it is party, have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person's
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law, except with respect
of clause (c), to the extent such violation could not reasonably be expected to
have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, other than
(a) such that have been obtained and are in full force and effect, (b) those the
failure of which could not reasonably be expected to have a Material Adverse
Effect and (c) with respect to execution, SEC filings.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is a party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of each Loan Party that is a party thereto, enforceable
against such Loan Party in accordance with
45
its terms, except as enforceability may be limited by Debtor Relief Laws and
general equitable principles.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments, Indebtedness and
Contingent Liabilities.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated June 30, 2004, and the related unaudited consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries not reflected on the June 30, 2004 financial statements referred to
above, incurred after the date of such financial statements but prior to the
Closing Date, including liabilities for material commitments, Indebtedness and
Contingent Liabilities.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION. Except (a) for liabilities of NTINY under insurance or
insurance related contracts entered into by NTINY in the ordinary course of its
business, and (b) as set forth in Schedule 5.06, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower,
threatened or contemplated, at Law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their respective properties or revenues that (i) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (ii) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the
46
aggregate, reasonably be expected to have a Material Adverse Effect. No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and indefeasible title to, or valid leasehold
interests in, their respective real properties, except for such defects in title
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of the Borrower and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries have
complied with all Environmental Laws, except for any Environmental Laws the
non-compliance therewith could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.10 INSURANCE. The Borrower and its Subsidiaries maintain insurance in
full force and effect with respect to its properties and business in such
amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid or made provision for payment of all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable, except
those which are (a) being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP or (b) immaterial. There is no proposed tax assessment
against the Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect.
5.12 ERISA COMPLIANCE. Except as specifically disclosed on Schedule
5.12:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect.
47
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 INTELLECTUAL PROPERTY, LICENSES, ETC. The Borrower and each of its
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, licenses and other
rights that are used by the Borrower or such Subsidiary in connection with the
operation of their respective businesses, without conflict with the rights of
any other Person, except where the failure to have any such rights could not
have a Material Adverse Effect.
5.14 SUBSIDIARIES.
(a) The Borrower has no Subsidiaries other than those specifically
disclosed on Schedule 5.14(a) and, after the Closing Date, those permitted in
accordance with Section 7.03, and there are no restrictions on the Borrower or
any of its Material Subsidiaries which prohibit or otherwise restrict (i) the
ability of the Borrower or any of its Material Subsidiaries to grant any Liens
on any of their respective assets or (ii) the transfer of cash or other assets
from any Material Subsidiary to the Borrower, other than prohibitions or
restrictions existing under or by reason of any Loan Document, Legal
Requirements, customary non-assignment provisions in contracts entered into in
the ordinary course of business and consistent with past practices, and
agreements evidencing Off-Balance Sheet Liabilities permitted hereunder.
(b) Schedule 5.14(b) contains a complete and correct list of all of the
Borrower's Material Subsidiaries as to which the execution and delivery of the
Subsidiary Guaranty is not unlawful.
(c) NTINY is the only Subsidiary of the Borrower engaged in the
insurance business. NTINY is not a Material Subsidiary.
5.15 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is engaged or will
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" "margin stock"
within the respective
48
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No part of the proceeds of any Credit Extensions hereunder will be
used for "purchasing" or "carrying" "margin stock" as so defined or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulations U or X of such Board of Governors. Neither the Borrower nor any of
its Subsidiaries (a) is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, or (b) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.16 DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other factual information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.17 COMPLIANCE WITH LAWS. The Borrower and each of its Subsidiaries is
in compliance in all material respects with the Requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.18 SOLVENT. The Borrower is, and the Borrower and its Subsidiaries
are, on a consolidated basis, Solvent.
5.19 LICENSES. No License, the loss of which could reasonably be
expected to have a Material Adverse Effect, is the subject of a proceeding for
suspension or revocation which is reasonably likely to result in a suspension or
revocation. To the Borrower's knowledge, there is no sustainable basis for such
suspension or revocation of any License, the loss of which could reasonably be
expected to have a Material Adverse Effect.
5.20 EMPLOYEE MATTERS. There are no strikes, work stoppages, election
or decertification petitions or proceedings, unfair labor charges, equal
employment opportunity proceedings, wage payment or material unemployment
compensation
49
proceedings, material workers' compensation proceedings or other material
labor/employee related controversies pending or, to the knowledge of the
Borrower, threatened between the Borrower or any of its Subsidiaries and any of
their respective employees, other than employee grievances which could not in
the aggregate reasonably be expected to have a Material Adverse Effect.
5.21 FOREIGN ASSETS CONTROL REGULATIONS, ETC. Neither the Borrower nor
any of its Subsidiaries is an "enemy" or an "ally of the enemy" within the
meaning of Section 2 of the Trading with the Enemy Act of the United States of
America (50 U.S.C. App. SectionSection 1 et seq.), as amended. Neither the
Borrower nor any or its Subsidiaries is in violation of (a) the Trading with the
Enemy Act, as amended, (b) any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto or (c) the Patriot
Act (as defined in Section 10.19). Neither the Borrower nor any of its
Subsidiaries (i) is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked
person.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower
agrees with the Administrative Agent and the Lenders that:
6.01 FINANCIAL STATEMENTS. The Borrower shall deliver to the
Administrative Agent with sufficient copies for each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but not later than 105 days after the end of
each Fiscal Year, (i) if the IPO has not been consummated prior to the end of
such Fiscal Year, a copy of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP, the financial position and the results of
operations of the Borrower and the Subsidiaries as of the date thereof and (ii)
if the IPO has been consummated prior to the end of such Fiscal Year, a copy of
the audited consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such year and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous Fiscal Year, and
accompanied by the opinion of KPMG LLP or another nationally recognized
independent public accounting firm ("Independent Auditor") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent
50
with prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of the Borrower's or any Subsidiary's records, and shall not contain any
qualification or exception which is of a "going concern" or similar nature or
exception as to scope of such audit;
(b) as soon as available, but not later than 60 days after the end of
each of the first three Fiscal Quarters of each fiscal year, a copy of the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and the results of
operations of the Borrower and the Subsidiaries as of the date thereof;
(c) as soon as available, but not later than 105 days after the end of
each Fiscal Year, a copy of an unaudited consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such year and the related
consolidating statement of income for such year, certified by a Responsible
Officer as having been developed and used in connection with preparation of the
financial statements referred to in Section 6.01(a); and
(d) as soon as available, but not later than 60 days after the end of
each of the first three Fiscal Quarters of each fiscal year, a copy of the
unaudited consolidating balance sheets of the Borrower and its Subsidiaries, and
the related consolidating statements of income for such quarter, all certified
by a Responsible Officer as having been developed and used in connection with
the preparation of the financial statements referred to in Section 6.01(b).
6.02 CERTIFICATES; OTHER INFORMATION. The Borrower shall deliver to the
Administrative Agent with sufficient copies for each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of the Independent Auditor stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a Compliance Certificate executed by a
Responsible Officer;
(c) the following certificates and other information:
(i) within two Business Days of the receipt of such notice,
notice of the actual suspension, termination or revocation of any
material license of the Borrower or any of its Material Subsidiaries by
any Governmental Authority or notice from any Governmental Authority
notifying the Borrower or any of its Material Subsidiaries of a hearing
relating to such a suspension, termination or
51
revocation, including any request by a Governmental Authority which
commits the Borrower or any of its Material Subsidiaries to take, or
refrain from taking, any action or which otherwise materially and
adversely affects the authority of the Borrower or any of its Material
Subsidiaries to conduct its business; and
(ii) within five Business Days of the receipt of such notice,
notice of any material pending or threatened investigation or
regulatory proceeding (other than routine periodic investigations or
reviews) by any Governmental Authority concerning the business
practices or operations of the Borrower or any of its Material
Subsidiaries which is reasonably likely to have a Material Adverse
Effect.
(d) promptly, but in any event within two Business Days of having
knowledge thereof, notice of any change in a Debt Rating by Xxxxx'x or S&P and
notice of the lack of a Debt Rating by Xxxxx'x or S&P (and in the event of the
lack of a Debt Rating by Xxxxx'x and S&P, a certificate executed by a
Responsible Officer setting forth the Leverage Ratio for the most recently ended
Test Period);
(e) promptly after the same are available, copies of each (i) annual
report, proxy or financial statement or, at the Administrative Agent's request,
copies of each other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports
(including Forms 10K, 10Q and 8K) and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto and (ii) without duplication, copies of
any certifications or affidavits required by the SEC in connection with the
filing of Forms 10K, 10Q and 8K;
(f) promptly after the Borrower has notified the Administrative Agent
of any intention by the Borrower to treat the Loans and related transactions as
being a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;
and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender
may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) through
(d) or Section 6.02(e) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on Syndtrak Online
or another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or
52
whether sponsored by the Administrative Agent); provided that: (i) the Borrower
shall deliver paper copies of such documents to the Administrative Agent for any
Lender that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
6.03 NOTICES. The Borrower shall promptly notify the Administrative
Agent:
(a) promptly after a Responsible Officer of the Borrower obtains
knowledge thereof, of (i) the occurrence of any event that constitutes a Default
or Event of Default, (ii) any litigation or governmental proceeding pending
against the Borrower or any of its Subsidiaries (x) in which the amount of
damages claimed is 2% of Net Worth (or its equivalent in another currency or
currencies) or more as to the Borrower and all Subsidiaries other than NTINY or
(y) which if adversely determined could reasonably be expected to have a
Material Adverse Effect;
(b) of the occurrence of any of the following events affecting the
Borrower or any ERISA Affiliate (but in no event more than 10 days after a
Responsible Officer of the Borrower obtains knowledge of such event), and
deliver to the Administrative Agent and each Lender a copy of any notice with
respect to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Borrower or any ERISA Affiliate
with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the contributions to, or the
Unfunded Pension Liability of, any Pension Plan since the last annual
valuation date;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code by the Borrower or any
ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject to
Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability;
53
(c) of any material change in accounting policies or financial
reporting practices by the Borrower or any of its consolidated Material
Subsidiaries;
(d) of the receipt of any notice from any Governmental Authority of the
institution of any disciplinary proceedings against or in respect of NTINY, or
the issuance of any order, the taking of any action or any request for an
extraordinary audit for cause by any Governmental Authority which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect; or
(e) of any judicial or administrative order limiting or controlling the
insurance business of NTINY (and not the insurance industry generally) which has
been issued or adopted and which has had, or which could reasonably be expected
to have, a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 PRESERVATION OF EXISTENCE, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, (a) preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.02; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; (c) take all reasonable action to
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect; and (d) in the case of the Borrower, engage in
no business (other than as conducted on the Closing Date) except to hold Equity
Interests of its Subsidiaries.
6.05 MAINTENANCE OF PROPERTIES. The Borrower shall, and shall cause
each of its Subsidiaries to, (a) maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good working order and condition, ordinary wear and tear excepted and except in
connection with transactions permitted by Section 7.02; and (b) make all
necessary repairs thereto and renewals and replacements thereof, in each case
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
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6.06 MAINTENANCE OF INSURANCE. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain with financially sound and reputable insurance
companies which are not Affiliates of the Borrower insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons.
6.07 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause each of
its Subsidiaries to, comply in all material respects with the requirements of
all Laws, orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.08 BOOKS AND RECORDS. The Borrower shall, and shall cause each of its
Subsidiaries to, (a) maintain proper books of record and account, in which full,
true and correct entries in all material respects in conformity with GAAP (or
the applicable accounting practices prescribed by the applicable Governmental
Authority with respect to NTINY), consistently applied, shall be made of all
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
6.09 INSPECTION RIGHTS. The Borrower shall, and shall cause each of its
Material Subsidiaries to, permit representatives and independent contractors of
the Administrative Agent and each Lender to visit and inspect any of their
respective properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when a Default or an Event of Default exists
the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice.
6.10 USE OF PROCEEDS. The Borrower shall use the proceeds of the Credit
Extensions for general corporate purposes, including Permitted Acquisitions and
Capital Expenditures, not in contravention of any Law or of any Loan Document.
6.11 PAYMENT OF TAXES. The Borrower shall, and shall cause each of its
Subsidiaries to, pay and discharge all material taxes, assessments and
governmental charges or levies upon it or upon its income or profits, or upon
any properties belonging to it, prior to the date on which material penalties
attach thereto, and all lawful material claims that, if unpaid, could reasonably
be expected to become a material Lien upon any
55
of its properties; provided that neither the Borrower nor any of its
Subsidiaries shall be required hereunder to pay any such tax, assessment,
charge, levy or claim that is being contested in good faith and by proper
proceedings if it has maintained adequate reserves (in the good faith judgment
of the management of the Borrower) with respect thereto in accordance with GAAP
(or the applicable accounting practices prescribed by the applicable
Governmental Authority with respect to NTINY).
6.12 FUTURE SUBSIDIARIES. Without limiting the effect of any provision
contained herein (including Section 7.03), upon any Person becoming, after the
date hereof, a direct or indirect Domestic Subsidiary of the Borrower that is a
Material Subsidiary, but not a Securitization Vehicle, the Borrower shall cause
such Domestic Subsidiary to (a) promptly execute and deliver to the
Administrative Agent the Subsidiary Guaranty if a Guaranty Trigger Event has
occurred and is continuing and (b) simultaneously therewith, deliver the
documents, certificates and opinion required to be delivered by a Loan Party
pursuant to Sections 4.01(a)(iv) through 4.01(a)(vii).
6.13 MAINTENANCE OF CORPORATE SEPARATENESS. The Borrower shall, and
shall cause each of its Subsidiaries to, satisfy customary corporate
formalities, including the holding of regular board of directors' and
shareholders' meetings and the maintenance of corporate offices and records.
6.14 SUBSIDIARY GUARANTY.
(a) The Borrower shall at all times cause a number of Subsidiaries to
be identified as Material Subsidiaries that, collectively, have EBITDA for the
most recently ended Test Period that comprises at least 75% of the EBITDA of all
Subsidiaries in the aggregate, and shall, absent a Guaranty Release Event, cause
each of such identified Material Subsidiaries that can legally execute a
guaranty to (a) execute and deliver to the Administrative Agent the Subsidiary
Guaranty and (b) simultaneously therewith, deliver the documents, certificates
and opinion required to be delivered by a Loan Party pursuant to Sections
4.01(a)(iv) through 4.01(a)(vii).
(b) If, at any time after the Closing Date a Guaranty Release Event
shall occur, the Administrative Agent shall, at the expense of the Borrower,
release the Subsidiary Guaranty and shall take all actions reasonably necessary
to evidence such release. If at any time after a Guaranty Release Event has
occurred a Guaranty Trigger Event occurs, the Borrower covenants and agrees that
it will, and will cause each of its Material Subsidiaries that are not
Securitization Vehicles to, within 10 days following the date of a Guaranty
Trigger Event, (i) execute and deliver to the Administrative Agent the
Subsidiary Guaranty and (ii) simultaneously therewith, deliver the documents,
certificates and opinion required to be delivered by a Loan Party pursuant to
Sections 4.01(a)(iv) through 4.01(a)(vii).
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan
or other Obligation hereunder shall remain unpaid or unsatisfied:
7.01 LIENS. The Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.11;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith by appropriate proceedings diligently prosecuted;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds, reinsurance agreements and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the payment
for borrowed money);
(e) Liens existing on the Closing Date and identified on Schedule 7.01;
(f) Liens consisting of pledges or deposits of cash or securities made
by NTINY as a condition to obtaining or maintaining any licenses issued to it
by, or to satisfy the requirements of, any applicable Governmental Authority
responsible for the regulation of NTINY;
(g) Liens consisting of judgment or judicial attachment Liens (other
than arising as a result of claims under or related to insurance or insurance
related contracts entered into by NTINY in the ordinary course of its business);
provided that the enforcement of such Liens is effectively stayed or fully
covered by insurance and all such liens in the aggregate at any time outstanding
for the Borrower and its Subsidiaries do not exceed 3% of Net Worth;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in
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amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the
businesses of the Borrower and its Subsidiaries;
(i) Liens securing Indebtedness permitted under Section 7.04(d),
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(j) Liens securing obligations permitted under Sections 7.04(f) and
(g), to the extent such Liens are identified and permitted under such Sections;
(k) Liens arising as a result of claims in the ordinary course of
business against NTINY under or related to insurance or insurance related
contracts entered into by NTINY in the ordinary course of its business, or
securing Indebtedness of NTINY incurred or assumed in connection with the
settlement of claim losses in the ordinary course of business of NTINY;
(l) Liens on assets of a Person that becomes a Subsidiary after the
Closing Date pursuant to a Permitted Acquisition securing Indebtedness permitted
by Section 7.04(h), which Liens previously existed and were not created in
contemplation thereof and which are not increased to cover any other property;
(m) Liens on assets of the Borrower or its Subsidiaries securing
Indebtedness owed to the Borrower or a Subsidiary and permitted under Section
7.04(l);
(n) Liens on assets of the Designated Subsidiary securing Indebtedness
permitted under Section 7.04(m);
(o) so long as no Default or Event of Default has occurred and is
continuing, other Liens securing obligations in an aggregate amount not
exceeding at any one time outstanding 3% of Net Worth; and
any extension, renewal or replacement of the foregoing; provided that the Liens
permitted hereby shall not be spread to cover any additional Indebtedness or
property (other than a substitution of like property).
7.02 CONSOLIDATIONS AND MERGERS; SALES OF ASSETS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any part of its assets
(including receivables and Equity Interests, and in all cases whether now owned
or hereafter acquired) to or in favor of any Person, except:
58
(a) any Subsidiary may merge with the Borrower; provided that the
Borrower shall be the continuing or surviving Person, or with any one or more
Subsidiaries; provided that if any transaction shall be between a Subsidiary and
a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a
Wholly-Owned Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon
voluntary liquidation or otherwise) to the Borrower or another Subsidiary that
is a Wholly-Owned Subsidiary (other than NTINY); and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise
dispose of assets (i) if such sale, lease, conveyance or other disposition is
(A) of portfolio Investments in the ordinary course of its business at fair
market value, (B) of obsolete, worn-out or surplus property, (C) a sale of
property to the extent such property is exchanged for credit against the
purchase price of similar replacement property or the Net Disposition Proceeds
thereof are promptly applied to the purchase of such replacement property; (D)
ordinary course dispositions of real estate and related properties in connection
with relocation activities for employees of the Borrower and its Subsidiaries;
(E) dispositions of tangible property as part of a like kind exchange under
Section 1031 of the Code in the ordinary course of business; (F) dispositions of
real estate and related properties as part of the resolution or settlement of
claims under any insurance or insurance related contract entered into by NTINY
in the ordinary course of business; or (G) a voluntary termination of a Swap
Contract; and (ii) not otherwise permitted to be sold, leased, conveyed or
disposed of in clause (i) immediately preceding, provided that (A) no Default or
Event of Default shall have occurred or be continuing or would occur after
giving effect thereto, (B) all such dispositions shall be for fair market value
and (C) the aggregate value of all assets disposed of pursuant to this clause
(ii) by the Borrower and its Subsidiaries (excluding trade receivables sold or
otherwise conveyed to or by a Securitization Vehicle) shall not exceed 15% of
Net Worth (determined as of the last day of the immediately preceding Fiscal
Year) in any Fiscal Year.
7.03 INVESTMENTS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, make any Investments, except for:
(a) Investments held by the Borrower or any of its Subsidiaries in the
form of (i) Primary Investments and (ii) so long as no Default or Event of
Default has occurred and is continuing at the time of the making of such
Investment or after giving effect thereto, Secondary Investments; provided that,
(A) such Investments comply with all Legal Requirements, (B) the aggregate
amount of Secondary Investments shall not exceed 15% of the aggregate amount of
the Borrower's total investment portfolio and (C) the aggregate amount of
Investments in Secondary Investments that are issued by a single issuer shall
not exceed 5% of the aggregate amount of the Borrower's total investment
portfolio (with all valuations for purposes of compliance with this clause (ii)
being on a cost basis);
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(b) extensions of credit and capital contributions by the Borrower to
any of its Subsidiaries existing on the Closing Date or to new Subsidiaries
created after the Closing Date in accordance with this Agreement or by any of
its Subsidiaries to another of its Subsidiaries existing on the Closing Date or
to new Subsidiaries created after the Closing Date in accordance with this
Agreement;
(c) Investments by NTINY in the ordinary course of business and in
compliance with all applicable regulatory requirements;
(d) Investments existing on the Closing Date and identified on Schedule
7.03;
(e) extensions of credit in the nature of accounts receivable, notes
receivable, lease obligations and similar obligations arising in the ordinary
course of business;
(f) Investments constituting Permitted Acquisitions;
(g) Investments consisting of non-cash proceeds from Dispositions
permitted under Section 7.02(c) and (d); and
(h) so long as no Default or Event of Default has occurred and is
continuing, other Investments in an aggregate amount not to exceed at any one
time outstanding 3% of Net Worth.
7.04 LIMITATION ON INDEBTEDNESS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness of the Borrower, Fidelity Information Services, Inc.
and Fidelity National Information Solutions, Inc. consisting of guarantees of
the Parent Credit Facility until the consummation of the IPO and (ii) other
Indebtedness consisting of other Contingent Obligations in respect of
obligations of other Persons in an aggregate amount not to exceed at any one
time outstanding 3% of Net Worth.
(c) Indebtedness existing on the Closing Date and identified on
Schedule 7.04;
(d) Purchase money Indebtedness, Capital Leases, Off-Balance Sheet
Liabilities and/or indebtedness, liabilities and obligations incurred in
connection with a trade receivables securitization transaction involving the
Borrower or any of its Subsidiaries and a Securitization Vehicle (regardless of
whether such indebtedness, liabilities and obligations constitute Off-Balance
Sheet Liabilities), provided that (i) the aggregate amount of such Indebtedness
at any time outstanding shall not exceed 10% of Net Worth, (ii) such
Indebtedness when incurred shall not exceed 100% of the cost or fair market
value, whichever is lower, of the property being acquired on the date of
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acquisition, (iii) such Indebtedness is created and any Lien attaches to such
property concurrently with or within forty-five (45) days of the acquisition
thereof, and (iv) such Lien does not at any time encumber any property other
than the property financed by such Indebtedness;
(e) Obligations under Swap Contracts entered into for hedging purposes;
(f) Indebtedness of the Borrower and its Subsidiaries having a maturity
of 92 days or less representing borrowings from a bank or banks with which the
Borrower or such Subsidiary has a depository relationship, which borrowings
shall be fully secured by Cash Equivalents purchased by the Borrower or such
Subsidiary with the proceeds of such borrowings;
(g) Obligations incurred in the ordinary course of business in
connection with "1031 exchange" or relocation service transactions and secured
by the properties which are the subject of such transactions;
(h) Indebtedness of a Person that becomes a Subsidiary after the
Closing Date pursuant to a Permitted Acquisition, which Indebtedness existed
prior to such Acquisition and was not created in contemplation thereof;
(i) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof or after giving effect thereto,
unsecured Indebtedness of the Borrower; provided that such Indebtedness (i)
shall mature no earlier than November 30, 2009, (ii) shall not have any
scheduled principal payments or provide for any mandatory prepayments or
redemptions or repurchases not otherwise provided to the Lenders hereunder
(including by way of a default under this Agreement) prior to November 30, 2009,
(iii) has covenants, defaults and other terms and conditions (other than
interest rates) no more restrictive than those contained in this Agreement, and
(iv) at any time a Guaranty Trigger Event has occurred and is continuing, shall
not exceed, when aggregated with all other Indebtedness outstanding under this
clause (i), $800,000,000, provided that any Indebtedness permitted to be
incurred pursuant to this clause (i) prior to a Guaranty Trigger Event shall
continue to be permitted and may remain outstanding at such time as a Guaranty
Trigger Event has occurred and is continuing;
(j) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof, other Indebtedness of the Borrower
and its Subsidiaries in an aggregate principal amount not to exceed at any one
time outstanding 4% of Net Worth;
(k) obligations consisting of guarantees of Indebtedness of insurance
agents of NTINY in an aggregate amount not to exceed at any one time outstanding
3% of Net Worth;
(l) (i) Indebtedness of the Borrower or a Subsidiary owing to the
Borrower or another Subsidiary, provided that the payment of such Indebtedness
by the Borrower or a
61
Subsidiary that is a Subsidiary Guarantor is subordinate to the payment of the
Obligations pursuant to Section 2.8 of the Subsidiary Guaranty or otherwise in a
manner satisfactory to the Administrative Agent and (ii) Indebtedness of the
Borrower or a Subsidiary owing to the Parent, provided that (A) such
Indebtedness is incurred prior to the Distribution and (B) the payment of such
Indebtedness is subordinated to the payment of the Obligations in accordance
with terms and provisions satisfactory to the Administrative Agent;
(m) Non-Recourse Debt of the Designated Subsidiary; and
(n) any extensions, renewals or refinancings of the foregoing on terms
substantially similar to, or more favorable to the Borrower than (but not less
favorable to the Lenders), the terms of the Indebtedness being extended, renewed
or refinanced.
7.05 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into any transaction with any
Affiliate of the Borrower, except upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Borrower or such
Subsidiary; provided that the foregoing restrictions shall not apply to (a)
customary fees paid to members of the Board of Directors of the Borrower and its
Subsidiaries, (b) transactions permitted by Section 7.06 and (c) the performance
of any of the agreements identified on Schedule 7.05.
7.06 RESTRICTED PAYMENTS.
The Borrower shall not, and shall not allow any of its Subsidiaries to,
declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account of any shares of
any class of its Equity Interests, or purchase, redeem or otherwise acquire for
value any shares of its Equity Interest or any warrants, rights or options to
acquire such shares, now or hereafter outstanding, or directly or indirectly
voluntarily prepay, defease or in substance defease, purchase, redeem, retire or
otherwise acquire, any Indebtedness described in Section 7.04(i) or Section
7.04(j) (collectively, "Restricted Payments"), except that (a) the Borrower may
pay a dividend of up to $250,000,000 to the Parent from the proceeds of the IPO,
(b) any Subsidiary may pay dividends and tax sharing payments to the
corporations which own its Equity Interest, (c) prior to the consummation of the
Distribution, the Borrower may pay periodic dividends so long as (i) the amount
of the dividends paid for any period of four (4) consecutive Fiscal Quarters of
the Borrower shall not exceed 50% of Net Income for such period and (ii) before
and after giving effect to any such dividend payment no Event of Default or
Default shall have occurred and (d) after the consummation of the Distribution,
the Borrower may, so long as before and after giving effect to any such payment
no Event of Default or Default shall have occurred, make any Restricted Payment.
7.07 CHANGE IN BUSINESS. Other than in connection with a Permitted
Acquisition, the Borrower shall not, and shall not permit any of its Material
Subsidiaries to, engage in any material line of business substantially different
from those lines of
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business carried on by the Borrower and its Subsidiaries on the date hereof and
businesses directly related thereto.
7.08 ACCOUNTING CHANGES. The Borrower shall not, and shall not permit
any of its Material Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any Subsidiary.
7.09 FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. The Borrower shall not permit its
Fixed Charge Coverage Ratio to be less than 3.0 to 1.0 as of the last day of any
Fiscal Quarter ending after the consummation of the IPO.
(b) Total Debt to Total Capitalization Ratio. The Borrower shall not
permit its Total Debt to Total Capitalization Ratio to be greater than 0.35 to
1.0 as of the last day of any Fiscal Quarter ending after the consummation of
the IPO.
7.10 NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The Borrower shall
not, and shall not permit any of its Subsidiaries to, enter into any agreement
(other than pursuant to Legal Requirements and excluding any Loan Document)
prohibiting:
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired (other than the
agreements evidencing the Indebtedness permitted by Section 7.04(d) but only to
the extent of the properties, revenues and assets financed thereby), or the
ability of the Borrower or any of its Subsidiaries to amend or otherwise modify
any Loan Document; or
(b) the ability of any of its Subsidiaries to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or indirectly, to the
Borrower.
7.11 ERISA. The Borrower shall not, and shall not permit any of its
ERISA Affiliates to, at any time engage in a transaction which could be subject
to Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, has a Material Adverse
Effect.
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7.12 LIMITATION ON ACTIVITIES OF SUBSIDIARIES. The Borrower shall not
permit any Subsidiary (a) to engage in the insurance business other than NTINY
or (b) to engage in the business of being an underwritten title company or its
functional equivalent other than CTA. The Borrower shall not permit NTINY to
become a Material Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within five days
after the same becomes due, any interest on any Loan, or any Facility Fee or
other fee due hereunder, or any other amount payable hereunder or under any
other Loan Document; or
(b) Specific Covenants. The Borrower or any Subsidiary fails to perform
or observe any term, covenant or agreement contained in any of Section
6.03(a)(i), 6.09 or 6.12 or Article VII applicable to it; or
(c) Other Defaults. The Borrower or any Subsidiary fails to perform or
observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or observed
and such failure continues for 30 days after the earlier of (i) the date upon
which a Responsible Officer knew or reasonably should have known of such failure
or (ii) the date upon which written notice thereof is given to the Borrower by
the Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any Subsidiary herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Contingent
Obligation (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than 2% of Net Worth and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or
Contingent Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such
64
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded
or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any Subsidiary is
an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof is greater
than 2% of Net Worth; or
(f) Insolvency Proceedings, Etc. The Borrower or any Material
Subsidiary institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or NTINY shall become subject to any conservation,
rehabilitation or liquidation order, directive or mandate issued by an
Governmental Authority; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Material Subsidiary ceases to be Solvent, or becomes unable or admits in writing
its inability or fails generally to pay its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise, or
(ii) any writ or warrant of attachment or execution or similar process is issued
or levied against all or any material part of the property of any such Person
and is not released, vacated or fully bonded within 60 days after its issue or
levy; or
(h) Judgments. There is entered against the Borrower or any Material
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding 2% of Net Worth (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period
of 10 consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or
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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000;
(ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $5,000,000; or (iii) the Borrower or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$5,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or the Borrower or any other Person contests in any manner the
validity or enforceability of any Loan Document; or the Borrower denies that it
has any or further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss of Licenses. Any Governmental Authority revokes, fails to
renew or suspends any License of the Borrower or any Subsidiary, which
revocation, failure or suspension has had or could reasonably be expected to
have a Material Adverse Effect, or the Borrower or any Subsidiary for any reason
loses any License which loss has had or could reasonably be expected to have a
Material Adverse Effect, or the Borrower or any Subsidiary suffers the
imposition of any restraining order, escrow, suspension or impound of funds in
connection with any proceeding (judicial or administrative) with respect to any
License which imposition has had or could reasonably be expected to have a
Material Adverse Effect; or
(m) Environmental Damages. A reasonable basis shall exist for the
assertion against the Borrower or any of its Subsidiaries or any predecessor in
interest of the Borrower or any of its Subsidiaries of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) any claims or
liabilities, whether accrued, absolute or contingent, based on or arising from
the generation, storage, transport, handling or disposal of Hazardous Materials
by the Borrower or any of its Subsidiaries or predecessors thereof that, in the
judgment of the Required Lenders, are reasonably likely to be determined
adversely to the Borrower or such Subsidiary and the amount payable as a result
thereof has a Material Adverse Effect (after deducting such amounts that are
reasonably expected to be paid by other creditworthy Persons jointly and
severally liable therefor); or
(n) Governmental Action. The Borrower or any of its Subsidiaries shall
be required by any applicable bank regulatory authority, any applicable
insurance regulatory authority or other Governmental Authority to enter into,
after the date hereof, any indenture, agreement, instrument or other arrangement
(including any capital
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maintenance agreement) that directly or indirectly, prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes material adverse
conditions upon the incurrence or payment of Indebtedness, the granting of
Liens, the declaration or payment of dividends, the making of Investments or the
Disposition of property or requires the making of capital contributions to, or
other Investments in, any such Subsidiary in an aggregate amount which has a
Material Adverse Effect ; or
(o) Parent Guaranty. A breach or other default shall occur under the
Parent Guaranty.
(p) Parent Credit Agreement. An "Event of Default" shall occur under
the Parent Credit Agreement (irrespective of whether such "Event of Default"
shall have been waived by the requisite lenders under the Parent Credit
Agreement) prior to the release of the Parent Guaranty in accordance with the
terms of Section 10.18.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(a) declare all or any portion of the commitment of each Lender to make
Loans to be terminated, whereupon such commitments shall be terminated;
(b) declare all or any portion of the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
Law;
provided, however, that upon the occurrence of any Event of Default under
Section 8.01(f), the obligation of each Lender to make Loans shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable,
without further act of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable as set forth in the proviso to Section 8.02), any amounts collected
or received by the Administrative Agent or any Lender on account of the
Obligations shall be applied by the Administrative Agent in the following order:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under this
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Agreement or otherwise with respect to the Obligations and any
protective advances made by the Administrative Agent under or pursuant
to the terms of this Agreement;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' and
consultants' fees and other expenses accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency,
reorganization or like process relating to the Borrower or any
Subsidiary Guarantor, whether or not a claim for such expenses is
allowed in such proceeding) of each of the holders of the Obligations
in connection with enforcing its rights (a) under this Agreement or (b)
otherwise with respect to the Obligations owing to such Person;
FOURTH, to the payment of all of the Obligations consisting of
accrued fees and interest (including with respect to any Swap Contract,
any fees, premiums and scheduled periodic payments due under such Swap
Contract and any interest accrued thereon);
FIFTH, to the payment of the outstanding principal amount of
the Obligations (including with respect to any Swap Contracts, any
breakage, termination or other payments due under such Swap Contracts
and any interest accrued thereon);
SIXTH, to all other Obligations and other obligations that
shall have become due and payable under the Loan Documents or otherwise
and not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
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covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Borrower or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrower or any other Loan Party), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate
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and, if it so requests, it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will promptly
notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default as may be directed by the
Required Lenders in accordance with Article VIII; provided, however, that unless
and until the Administrative Agent has received any such direction, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its
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own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party required to reimburse such Agent-Related Person
hereunder and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all other Obligations and the resignation
of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Wachovia and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with each of
the Loan Parties and their respective Affiliates as though Wachovia were not the
Administrative Agent or the Swing Line Lender hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Wachovia or its Affiliates may receive information regarding any
Loan Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Wachovia shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and
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powers as though it were not the Administrative Agent or the Swing Line Lender,
and the terms "Lender" and "Lenders" include Wachovia in its individual
capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Wachovia shall also constitute its resignation as
Swing Line Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and Swing Line
Lender and the respective terms "Administrative Agent" and "Swing Line Lender"
shall mean such successor administrative agent and swing line lender, and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated and the retiring Swing Line Lender's rights, powers
and duties as such shall be terminated, without any other or further act or deed
on the part of such retiring Swing Line Lender or any other Lender. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 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.
9.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the
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reasonable compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under Sections 2.08 and
10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.08 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
9.11 GUARANTY MATTERS. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder. Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to release
any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
pursuant to this Section 9.11.
9.12 OTHER AGENTS; ARRANGERS AND BOOK RUNNER. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "book runner," "lead manager,"
"managing agent," "co-managing agent," "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.
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ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 2.05 or Section 8.02) without the
written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment 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 or interest of, or the rate of interest
specified herein on, any Loan, or (subject to clause (iii)) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to waive any obligation of the Borrower to
pay interest at the Default Rate;
(e) change Section 2.12 or Section 8.03 or the definition of "Pro Rata
Share" 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 or substantially all of the Subsidiary Guarantors from
the Subsidiary Guaranty without the written consent of each Lender (provided no
consent of any Lender shall be required in the event of a release of the
Subsidiary Guaranty as a result of a Guaranty Release Event);
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the
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rights or duties of the Swing Line Lender under this Agreement; (ii) 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 (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent or the Swing
Line Lender, to the address, facsimile number, electronic mail address
or telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to
the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the
Administrative Agent and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent and the Swing Line Lender pursuant to Article II
shall not be effective until actually received by such Person. In no event shall
a voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative
75
Agent and the Lenders. The Administrative Agent may also require that any such
documents and signatures be confirmed by a manually-signed original thereof;
provided, however, that the failure to request or deliver the same shall not
limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 6.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Revolving Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
The Borrower shall indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by Law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs
and expenses incurred by the Administrative Agent and the Arranger in connection
with the development, preparation, negotiation and execution of this Agreement
and the other Loan Documents and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all reasonable costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing
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costs and expenses shall include all search, filing, recording, title insurance
and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts reasonably retained by
the Administrative Agent or, with respect to clause (b) above, any Lender. All
amounts due under this Section 10.04 shall be payable within ten Business Days
after demand therefor, setting forth in reasonable detail the costs and expenses
so incurred. The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold
harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment or
Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, settlement of, or defense of any pending
or threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are (i) determined by a court of competent
jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (ii) are the result
of claims asserted against an Indemnitee by another Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through Syndtrak Online or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any punitive, indirect or consequential
damages relating to this Agreement or any other Loan Document or arising out of
its activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 10.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of
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such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) or (h) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in Swing Line Loans) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund (as defined in subsection (g) of this Section) with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations
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under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Swing Line
Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent and the Swing Line Lender (each such approval not to be
unreasonably withheld or delayed) 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); (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption; and (v) the assignor Lender or Eligible Assignee shall have paid the
Administrative Agent a processing and recordation fee of $3,500. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the Closing Date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05
with respect to facts and circumstances occurring prior to the Closing Date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations Swing
Line Loans) owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
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obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by Law, each Participant also shall be
entitled to the benefits of Section 10.09 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and the Swing
Line Lender, and (ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
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"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at
any time Wachovia assigns all of its Commitment and Loans pursuant to subsection
(b) above, Wachovia shall, upon 30 days' notice to the Borrower and the Lenders,
resign as Swing Line Lender. In the event of any such resignation as Swing Line
Lender, the Borrower shall be entitled to appoint from among the Lenders a
successor Swing Line Lender hereunder but no Lender shall be required to accept
such appointment; provided, however, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Wachovia as Swing Line
Lender. If Wachovia resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the Closing Date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.03(c).
10.08 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and will agree to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable Laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Borrower; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other
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than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower without breach of any duty of confidentiality known to
the Administrative Agent or such Lender; or (i) to any applicable Governmental
Authority having regulatory authority over NTINY. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or any
Subsidiary or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower. 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.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each other Loan
Party) to the fullest extent permitted by Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, but not any
deposits held in a custodial, trust or other fiduciary capacity) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent
or such Lender shall have made demand under this Agreement or any other Loan
Document and although such Obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
10.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.11 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
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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.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied.
10.13 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.14 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS
Form W-8BEN or any successor thereto (relating to such Foreign Lender
and entitling it to an exemption from, or reduction of, withholding tax
on all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by the
Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then
current United States Laws and regulations to avoid, or such evidence
as is satisfactory to the
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Borrower and the Administrative Agent of any available exemption from
or reduction of, United States withholding taxes in respect of all
payments to be made to such Foreign Lender by the Borrower pursuant to
this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of
applicable Laws that the Borrower make any deduction or withholding for
taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents
(for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly
signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required
under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such
Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 10.14(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 10.14(a); provided that if such Lender shall
have satisfied the requirement of this Section 10.14(a) on the date
such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this
Section 10.14(a) shall relieve the Borrower of its obligation to pay
any amounts pursuant to Section 3.01 in the event that, as a result of
any change in any applicable Law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under
any of the Loan Documents is not subject to withholding or is subject
to withholding at a reduced rate.
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(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrower is not
required to pay additional amounts under this Section 10.14(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
10.15 REPLACEMENT OF LENDERS. Under any circumstances set forth herein
providing that the Borrower shall have the right to replace a Lender as a party
to this Agreement, the Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by the Borrower in such instance)
pursuant to Section 10.07(b) to one or more other Lenders or Eligible Assignees
procured by the Borrower; provided, however, that if the Borrower elects to
exercise such right with respect to any Lender pursuant to Section 3.06(b), it
shall be obligated to replace all Lenders that have made similar requests for
compensation pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in
full all principal, interest, fees and other amounts owing to such Lender
through the date of replacement (including any amounts payable pursuant to
Section 3.05), (y) provide appropriate assurances and indemnities (which may
include letters of credit) to the Swing Line Lender as each may reasonably
require with respect to any continuing obligation to fund participation
interests in any Swing Line Loans then outstanding, and (z) release such Lender
from its obligations under the Loan Documents. Any Lender being replaced shall
execute and deliver an Assignment and Assumption with respect to such Lender's
Commitment and outstanding Loans and participations in Swing Line Loans.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY
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WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. THIS AGREEMENT HAS BEEN ENTERED
INTO PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 RELEASE OF PARENT GUARANTY. The Administrative Agent shall, at
the expense of the Borrower, release the Parent Guaranty and shall take all
actions reasonably necessary to evidence such release upon the satisfaction of
the following conditions: (i) the Administrative Agent shall have received
evidence satisfactory to it that the IPO shall have been consummated, (ii) the
Second Amendment Secondary Effective Date (as defined in the Second Amendment)
shall have occurred, (iii) the Borrower, Fidelity Information Services, Inc. and
Fidelity National Information
86
Solutions, Inc. shall have been released from all of their obligations under the
Subsidiary Guaranty (as defined in the Parent Credit Agreement), (iv) the
representations and warranties contained in Article V of this Agreement shall be
true and correct in all material respects as of the date of the IPO, (v) the
Administrative Agent shall have received evidence satisfactory to it that the
Borrower is in pro forma compliance with the financial covenants set forth in
Section 7.09 as of the last day of the Fiscal Quarter ending prior to the
consummation of the IPO for which the Lenders have received financial statements
for such Fiscal Quarter in accordance with Section 6.01 (with such covenants
calculated on the assumption that the IPO was consummated on the last day of
such Fiscal Quarter) and (vi) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent and its counsel,
such other documents, certificates and instructions as the Administrative Agent
shall require. Upon the release of the Parent Guaranty, the terms and provisions
contained therein (including, without limitation, the terms and provisions of
Section 4.1 regarding the incorporation by reference of the representations and
covenants contained in Articles V, VI and VII of the Parent Credit Agreement)
shall be of no further force and effect for purposes of this Agreement and the
other Loan Documents.
10.19 USA PATRIOT ACT NOTICE. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Patriot Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act.
10.20 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
embodies the entire agreement and understanding among the Borrower, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof, except that (a) the matters pertaining to
indemnities and reimbursement of expenses contained in the commitment letter,
dated as of October 19, 2004, among the Borrower, the Administrative Agent and
the Arranger and (b) the Fee Letter shall survive the execution and delivery of
this Agreement and the Closing Date.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
87
Schedule 2.01
SCHEDULE OF COMMITMENTS
AND
PRO RATA SHARES
Lender Commitment Pro Rata Shares
------ ------------ ---------------
Wachovia Bank, National Association $50,000,000 10.000000000%
Bank of America, N.A. $45,000,000 9.000000000%
Bank of the West $35,000,000 7.000000000%
U.S. Bank National Association $35,000,000 7.000000000%
SunTrust Bank $35,000,000 7.000000000%
Xxxxx Fargo Bank, National Association $35,000,000 7.000000000%
Citibank (West), FSB $35,000,000 7.000000000%
Union Bank of California, N.A. $25,000,000 5.000000000%
JPMorgan Chase Bank $20,000,000 4.000000000%
LaSalle Bank National Association $20,000,000 4.000000000%
Mizuho Corporate Bank (USA) $20,000,000 4.000000000%
National City Bank of the Midwest $20,000,000 4.000000000%
Xxxxxx Xxxxxxx Bank $20,000,000 4.000000000%
Comerica Bank $20,000,000 4.000000000%
Bear Xxxxxx Corporate Lending Inc. $20,000,000 4.000000000%
Xxxxxx Xxxxxxx Financing, Inc. $20,000,000 4.000000000%
Sumitomo Mitsui Banking Corp., New York $15,000,000 3.000000000%
Fifth Third Bank $15,000,000 3.000000000%
Compass Bank $15,000,000 3.000000000%
------------ ------------
Total $500,000,000 100%
============ ============
Schedule 2.01
Schedule 5.05
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
None.
Schedule 5.05
Schedule 5.06
EXISTING LITIGATION
As described on pages F-20 and F-21 in Amendments No. 2 to Form S-1 filed August
30, 2004.
Since the filing of Amendment No. 2, the Travelers and St. Xxxx Fire and
Marine cases have been settled.
Schedule 5.06
Schedule 5.12
ERISA MATTERS
None.
Schedule 5.12
Schedule 5.14(a)
SUBSIDIARIES
Material Subsidiaries
Fidelity Information Services, Inc.
Fidelity National Information Solutions, Inc.
Market Intelligence, LLC
Other Subsidiaries
Advanced Check, Inc.
ALLTEL Servicios de Informacion (Costa Rica) S.A.
Appraisal Enhancement Services, LLC
APTItude Solutions, Inc.
Arizona Sales and Posting, Inc.
A.S.A.P. Legal Publication Services, Inc.
Aurum Technology Inc.
BenchMark Consulting International NA, Inc.
BenchMark Consulting International Europe GmbH
Builders Affiliated Mortgage Services (partnership) 40%
Business World Travel, Inc.
BW Images, Inc.
CBS Acquisition, L.L.C.
Chase Vehicle Exchange, Inc.
Computer Consultants Corporation
Xxxxxxxx Net Services, Inc.
Covansys Corporation (29%)
CTC Merger Sub, Inc.
Customized Database Systems, Inc.
Cyberhomes Internet Services, Inc.
Default Lifecycle, LLC (50%)
DPN, Incorporated
Eastern Financial Systems, Inc.
Eastern Software Corporation
Eastern Software of California, Inc.
Ecosearch Environmental Resources, Inc.
Ensite Corporation of Denver
e-PROFILE Holdings, Inc.
Equavant (BD) Inc.
Equavant (Bermuda) Ltd.
Equavant (UK) Ltd.
Equity Residential Mortgage Company, LLC (50%)
Schedule 5.14(a)
E/RISK Information Services
Fidelity Information Services Canada Limited
Fidelity Information Services (France) SARL
Fidelity Information Services (Germany) GmbH
Fidelity Information Services (Greece) S.A.
Fidelity Information Services (Hong Kong) Limited
Fidelity Information Services International Holdings, Inc.
Fidelity Information Services International, Ltd.
Fidelity Information Services Limited
Fidelity Information Services (Netherlands) B.V.
Fidelity Information Services (New Zealand) Limited
Fidelity Information Services Sp. z.o.o.
Fidelity Information Services (Thailand) Limited
Fidelity International Resource Management, Inc.
Fidelity National Agency Sales and Posting
Fidelity National Asset Management Solutions, Inc.
Fidelity National Credit Services, Inc.
Fidelity National Field Services, Inc.
Fidelity National Foreclosure Solutions, Inc.
Fidelity National Information Solutions Canada, Inc.
Fidelity National Loan Portfolio Services, Inc.
Fidelity National Tax Service, Inc.
Fidelity Wholesale Banking Solutions, Inc.
Financial ServiceSolutions Information Systems, LLC (50%)
Financial ServiceSolutions, LLC (50%)
FIS Management Services, LLC (payroll company)
FNF Capital, Inc.
FNF Capital, LLC (75%)
FNIS Flood Group, LLC
FNIS Flood of California, LLC FNIS Flood Services, L.P.
FNIS Holding, LLC
FNIS Intellectual Property Holdings, Inc.
FNIS Management Services, Inc.
FNIS MLS Services, Inc.
FNIS Services, Inc.
Fuscia Merger Sub, Inc.
Gateway Financial Services, Inc.
GeoSure, Inc.
GeoSure, L.P.
Geotrac, Inc.
GFS Holdings Co.
Greystone Software Technology Corporation
Greystone Technology Corporation
Schedule 5.14(a)
Xxxxxxxx & Xxxxxxxx, Ltd.
Xxxxxx Quality, LLC
HomeBuilders Financial Network, LLC (75%)
HomeBuilders Investment, LLC (75%)
HomeBuyers Mortgage Network, LLC (75%)
HQ Holding Corporation Indiana
Residential Nominee Services, LLC
I-Net Reinsurance Limited
International Data Management Corporation
Investment Property Exchange Services, Inc.
Kordoba GmbH & Co. KG (74.9%)
Lender's Service Title Agency, Inc.
LRT Record Services, Inc.
LSI Alabama, LLC
LSI Appraisal, LLC
LSI Maryland, Inc.
LSI Title Agency, Inc.
LSI Title Company
LSI Title Company of Oregon, LLC
Maine Residential Nominee Services, LLC
Market Intelligence, LLC
Massachusetts Residential Nominee Services, LLC
MBBWare, Inc.
MH Mortgage, LLC (50%)
Xxxxx Public Records Information, Inc.
Morningside Corporation
National Residential Nominee Services Inc.
National Safe Harbor Exchanges
National Title Insurance of New York Inc.
National Underwriting Services, LLC (75%)
NewInvoice, LLC (80%)
NRC Insurance Services, Inc.
NT Merger, Inc.
On-Line Financial Services, Inc.
OnePointCity, LLC
Pacific American Property Exchange Corporation
Profile Partners GP, L.P. (30%)
Profile Venture Partners Capital Fund I, LP (64.7482%)
Property Insight, LLC
Pro-Soft, Inc.
PVP Advisors, LLC
RealEC Technologies, Inc. (56.31%)
RealInfo, L.L.C. (50%)
Risco, Inc.
Schedule 5.14(a)
Xxxxxxx Advisors, LLC
Xxxxxxx Computer Associates, Inc. (a Canada corporation)
Xxxxxxx Computer Associates International, Inc.
Xxxxxxx Computer Associates, LLC
Xxxxxxx Computer Associates Limited
Xxxxxxx Computer Associates, Polska Sp.z.o.o.
Xxxxxxx Computer Associates Pty Limited
Xxxxxxx Data Systems, Inc.
Xxxxxxx FSC, Inc.
Xxxxxxx Software, Ltd.
SoftPro Merger Corp.
SPI I Company
SPI I, LLC
Strategic Property Investments, Inc.
Systematics Information Services, Inc. (Arkansas corp.)
Systematics Information Services, Inc. (Delaware corp.)
The Equavant Group, Inc.
Title-Tax, Inc.
TouchPoint Solutions, Inc.
Vermont Residential Nominee Services, LLC
Vista DMS, Inc.
Vista Environmental Information Inc.
Schedule 5.14(a)
Schedule 5.14(b)
SUBSIDIARY GUARANTORS
State of
Subsidiary Domicile
---------- --------
Fidelity Information Services, Inc. AR
Fidelity National Information Solutions, Inc. DE
Market Intelligence, LLC MA
Schedule 5.14(b)
Schedule 7.01
EXISTING LIENS
All liens against the securities or assets of the Designated Subsidiary.
Schedule 7.01
Schedule 7.03
EXISTING INVESTMENTS
(IN MILLIONS)
AS OF
06/30/2004
----------
Covansys $121.0 (1)
Financial Services and Solutions, LLC (JV) 30.3
Financial Services and Solutions IS (JV) 2.7
Lexis Nexus 1.8
-------
TOTAL $155.8
1) Covansys investment was made 9/15/2004
Schedule 7.03
Schedule 7.04
EXISTING DEBT
(IN MILLIONS)
AS OF
COMPANY NAME 06/30/2004
------------ ----------
FNF Capital, Inc. $ 27.2
Aurum Technology, Inc. 9.4
TouchPoint Solutions, Inc. 6.0
Micor General Corporation 2.4
Other 2.8
-----------
TOTAL $ 47.8
===========
Schedule 7.04
Schedule 7.05
AFFILIATE TRANSACTIONS
As described on pages F-8 and F-9 in Amendment No. 2 to Form S-1 filed August
30, 2004.
Schedule 7.05
Schedule 10.02
ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES
ADMINISTRATIVE AGENT AND SWING LINE LENDER
Credit Contact:
Wachovia Bank, National Association,
as Administrative Agent
One Wachovia Center
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Agency Management
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxxx@xxxxxxxx.xxx
Administrative Contact:
Wachovia Bank, National Association
Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone: (000) 000-0000
Fax: (000) 000-0000
BORROWER
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: XXxxxxxx@xxx.xxx
Schedule 10.02
EXHIBIT A
FORM OF REVOLVING LOAN NOTICE
Date: ___________, _____
To: Wachovia Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November
8, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Fidelity National Information Services, Inc.,
a Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Wachovia Bank, National Association, as Administrative Agent and
Swing Line Lender.
The undersigned hereby requests (select one):
[ ] A Borrowing of Revolving Loans [ ] A conversion or continuation
of Revolving Loans
1. On (a Business Day).
------
2. In the amount of $ .
--------
3. Comprised of .
-------------
[Type of Revolving Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of months.
--------
The Revolving Borrowing requested herein complies with the proviso to the
first sentence of Section 2.01 of the Agreement.
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By:
------------------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit A
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Wachovia Bank, National Association, as Swing Line Lender
Wachovia Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November
8, 2004 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Fidelity National Information Services, Inc.,
a Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Wachovia Bank, National Association, as Administrative Agent and
Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On (a Business Day).
----------------------------------------
2. In the amount of $ .
-----------------------
The Swing Line Borrowing requested herein complies with the requirements
of the provisos to the first sentence of Section 2.03(a) of the Agreement.
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By:
------------------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit B
EXHIBIT C
FORM OF REVOLVING LOAN NOTE
$
--------------- ---------------------
FOR VALUE RECEIVED, FIDELITY NATIONAL INFORMATION SERVICES, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
___________________________ (the "Lender"), on the Maturity Date (as defined in
the Credit Agreement referred to below) the principal amount of
__________________Dollars ($____________), or such lesser principal amount of
Revolving Loans (as defined in such Credit Agreement) due and payable by the
Borrower to the Lender on the Maturity Date under that certain Credit Agreement,
dated as of November 8, 2004 (as amended, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, and Wachovia Bank, National Association, as
Administrative Agent and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be made
to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Revolving Loan Notes referred to in the Agreement,
is entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. Upon the occurrence of one
or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Revolving Loans
made by the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of its Revolving Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand, intent
to accelerate, acceleration, dishonor and non-payment of this Note.
Exhibit C
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE.
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By:
------------------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit C
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
---------------- ------------ -------------- ---------------- -------------- ------------ ----------------
Exhibit C
EXHIBIT D
FORM OF SWING LINE NOTE
$25,000,000.00 ____________________
FOR VALUE RECEIVED, FIDELITY NATIONAL INFORMATION SERVICES, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
WACHOVIA BANK, NATIONAL ASSOCIATION. ("Swing Line Lender"), on the date when due
in accordance with the Credit Agreement referred to below, the aggregate unpaid
principal amount of each Swing Line Loan from time to time made by the Swing
Line Lender to the Borrower under that certain Credit Agreement, dated as of
November 8, 2004 (as amended, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among the Borrower, the Lenders from time to time
party thereto, and Wachovia Bank, National Association, as Administrative Agent
and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement.
All payments of principal and interest shall be made to the Swing Line
Lender in Dollars in immediately available funds at its Lending Office.
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Agreement.
This Note is the Swing Line Note referred to in the Agreement, is entitled
to the benefits thereof and is subject to optional and mandatory prepayment in
whole or in part as provided therein. Upon the occurrence of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Swing Line Loans made by the Swing Line Lender
shall be evidenced by one or more loan accounts or records maintained by Swing
Line Lender in the ordinary course of business. The Swing Line Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of the Swing Line Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand, intent
to accelerate, acceleration, dishonor and non-payment of this Note.
Exhibit D
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE.
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By:
------------------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit D
SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR
AMOUNT OF LOAN INTEREST PAID THIS OUTSTANDING PRINCIPAL
DATE MADE DATE BALANCE THIS DATE NOTATION MADE BY
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
------------------ --------------- ------------------ --------------------- ----------------
Exhibit D
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
------
To: Wachovia Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
November 8, 2004 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Fidelity National
Information Services, Inc.., a Delaware corporation (the "Borrower"), the
Lenders from time to time party thereto, and Wachovia Bank, National
Association, as Administrative Agent and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ___________________of the Borrower, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end [AUDITED] [UNAUDITED]
financial statements required by Section 6.01(a) of the Agreement for the fiscal
year of the Borrower ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
Exhibit E
[select one:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
THE BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--or --
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND
STATUS:]
4. The representations and warranties of the Borrower contained in
Article V of the Agreement, or which are contained in any document furnished at
any time under or in connection with the Loan Documents, are true and correct on
and as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.
5. As of ___________________ (the "Computation Date")(1):
----------------
(a) The Net Worth as of the Computation Date was
$_______________________, as computed on Attachment 1 hereto.
(b) The Fixed Charge Coverage Ratio was _______________ to 1.00,
as computed on Attachment 2 hereto.
The minimum Fixed Charge Coverage Ratio permitted pursuant to
Section 7.09(a) on the Computation Date is 3.00 to 1:00.
(c) The Leverage Ratio was _______________ to 1.00, as computed on
Attachment 3 hereto.
(d) The Total Debt to Total Capitalization Ratio was _______ to
1.00, as computed on Attachment 4 hereto.
The maximum Total Debt to Total Capitalization Ratio permitted
pursuant to Section 7.09(b) on the Computation Date is 0.35 to
1.00.
----------
1 The last day of the most recently completed Fiscal Quarter of the Borrower.
Exhibit E
(e) The aggregate fair market value of Dispositions of the type
referred to in Section 7.02(c)(ii) was $_____________ in the
current Fiscal Year.
The maximum aggregate fair market value of such Dispositions
permitted pursuant to Section 7.02(c)(ii) is [15% OF NET WORTH
AS OF LAST DAY OF IMMEDIATELY PRECEDING FISCAL YEAR].
(f) The aggregate amount of Secondary Investments referred to in
Section 7.03(a) equaled _____% of the aggregate amount of the
Borrower's total investment portfolio and the aggregate amount
of Investments in such Secondary Investments that are issued
by a single issuer equaled ______% of the aggregate amount of
the Borrower's total investment portfolio.
The maximum aggregate amount of such Secondary Investments
permitted pursuant to in Section 7.03(a) is 15% of the
aggregate amount of the Borrower's total investment portfolio
and the maximum aggregate amount of Investments in such
Secondary Investments that are issued by a single issuer is 5%
of the aggregate amount of the Borrower's total investment
portfolio.
(g) The total consideration payable in cash in respect of all
Permitted Acquisitions during the current Fiscal Year up to
the Computation Date was $____________.
The maximum total consideration payable in cash in respect of
all Acquisitions constituting Permitted Acquisitions in any
Fiscal Year permitted pursuant to Section 7.03(f) is
$500,000,000.
(h) [TO BE COMPLETED AT ANY TIME A GUARANTY TRIGGER EVENT HAS
OCCURRED AND IS CONTINUING] The aggregate principal amount of
the Indebtedness of the type referred to in Section 7.04(i)
with respect to the Borrower was $___________.
The maximum aggregate principal amount of such Indebtedness of
the Borrower permitted pursuant to Section 7.04(i) is
$800,000,000.
(i) The aggregate principal amount of Indebtedness of the type
referred to in Section 7.04(j) with respect to the Borrower
was $______________.
The maximum aggregate principal amount of such Indebtedness of
the Borrower permitted pursuant to Section 7.04(j) is [4% OF
NET WORTH AS OF THE COMPUTATION DATE].
Exhibit E
ATTACHMENT 1
(TO __/__/__ COMPLIANCE
CERTIFICATE)
NET WORTH
on
(the "Computation Date")
A. Net Worth: the sum of all amounts (without duplication)
which, in accordance with GAAP, would be included in
the Borrower's stockholders' equity (excluding unrealized
gains or losses recorded pursuant to FAS 115) as required
to be reported in the Borrower's then most recent
consolidated balance sheet required to be delivered
pursuant to the Credit Agreement ...................... $________
Exhibit E
Attachment 2
(to ___/ ___/ ___,Compliance
Certificate)
FIXED CHARGE COVERAGE RATIO
on _________________
(the "Computation Date")
A. EBITDA:(2)
(1) Net Income........................................................... $__________
(2) The amount of interest charges deducted in determining such Net Income $__________
The amount of taxes, based on or measured by income, used or included
(3) in the determination of such Net Income.............................. $__________
The amount of depreciation and amortization expense deducted in
(4) determining such Net Income.......................................... $__________
(5) The sum of Items A(1) through A(4)................................... $__________
B Total Rent Expense for such Test Period. $__________
C Total Interest Expense for such Test Period. $__________
D. Fixed Charge Coverage Ratio: the ratio of Item A(5) plus Item B to Item C plus
Item B ____:1.00
----------
2 Determined on a trailing Four Fiscal Quarter basis as of the Computation Date.
Exhibit E
Attachment 3
(to __/__/__ Compliance
Certificate)
LEVERAGE RATIO
on
(the "Computation Date")
A. Total Debt (see Item A(6) above) $__________
B. Adjusted EBITDA:
(1) EBITDA (see Item A(5) on Attachment 2)................................. $__________
(2) Acquired EBITDA (EBITDA of any Person or assets acquired in
a Permitted Acquisition during such Test Period and
available to be paid as dividends to the Borrower under
applicable Law, determined on a pro forma basis for such
Test Period as if consummation of such Permitted
Acquisition occurred on the first day of such Test Period)............. $__________
(3) The sum of Items B(1) and B(2)......................................... $__________
C. Leverage Ratio: the ratio of Item A to Item B(3).................... ______:1.00
Exhibit E
Attachment 4
(to __/__/__ Compliance
Certificate)
TOTAL DEBT TO TOTAL CAPITALIZATION RATIO
on
(the "Computation Date")
A. Total Debt
(1) Applicable Debt of the Borrower and its Subsidiaries................... $__________
(2) Non-contingent reimbursement or payment obligations in
respect of the face amount of all letters of credit or
surety bonds issued for the account of the Borrower and its
Subsidiaries and, without duplication, all drafts drawn thereunder..... $__________
(3) Contingent Obligations of the Borrower and its Subsidiaries in respect
of Applicable Debt of another Person .................................. $__________
(4) The sum of Items A(1) through A(3)..................................... $__________
(5) Non-Recourse Debt of the Designated Subsidiaries ...................... $__________
(6) The remainder of Item (A)(4) minus Item (A)(5)......................... $__________
B. Total Capitalization:
(1) Net Worth (see Attachment 1)........................................... $__________
(2) Total Debt (see Item A(6) above)....................................... $__________
(3) The sum of Items B(1) and B(2)......................................... $__________
C. Total Debt to Total Capitalization Ratio: the ratio of Item A(6) to Item B(3). $__________
Exhibit E
IN WITNESS WHEREOF, the undersigned has executed this Certificate
as of,
-----------------, -----------.
FIDELITY NATIONAL INFORATION SERVICES, INC.
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit E
EXHIBIT F
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [INSERT NAME OF ASSIGNOR] (the "Assignor") and [INSERT NAME OF ASSIGNEE]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Swing Line Loans included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender](3)
3. Borrower(s): ______________________________
4. Administrative Agent: Wachovia Bank, National Association, as the
administrative agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of November 8, 2004,
among Fidelity National Information Services, Inc.,
the Lenders parties
----------
3 Select as applicable.
Exhibit F
thereto, and Wachovia Bank,
National Association, as Administrative Agent, and
the other agents parties thereto
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment Commitment Assigned of
for all Lenders* Assigned(4) Commitment(5)
--------------- ----------- -------------
$---------------- $---------------- --------------%
$---------------- $---------------- --------------%
$---------------- $---------------- --------------%
[7. Trade Date: __________________](6)
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
----------
4 Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.
5. Set forth, to at least 9 decimals, as a percentage of the Commitment of all
Lenders thereunder.
6. To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
Exhibit F
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
[Consented to and](7) Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By:
---------------------------------
Title:
[Consented to:](8)
By:
---------------------------------
Title:
----------
7 To be added only if the consent of the Administrative Agent is required
by the terms of the Credit Agreement.
8 To be added only if the consent of the Borrower and/or other parties
(e.g. Swing Line Lender) is required by the terms of the Credit Agreement.
Exhibit F
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Credit Agreement, dated as of November 8, 2004, among
Fidelity National Information Services, Inc., the Lenders parties thereto, and
Wachovia Bank, National Association, as Administrative Agent, and the
agents parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest,
(ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power
and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii)
it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may
be required under the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender, and
(v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that
Exhibit F
(i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned interest (including
payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may
be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of
New York.
Exhibit F
EXHIBIT G-1
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Guaranty"), dated as of
November __, 2004 is made by those Subsidiaries (as defined in the Credit
Agreement defined below) of Fidelity National Information Services, Inc., a
Delaware corporation (the "Borrower"), from time to time a party to this
Guaranty as evidenced by their execution hereof (collectively referred to as the
"Guarantors") in favor of each of the Guarantied Parties (as defined below),
including WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as the
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of November 8, 2004
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the Lenders, the
Administrative Agent, the Lenders have extended Commitments to make Credit
Extensions to the Borrower; and
WHEREAS, as a condition precedent to the making of the Credit
Extensions under the Credit Agreement, each Guarantor is required to execute and
deliver this Guaranty;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Credit
Extensions to the Borrower, each Guarantor jointly and severally agrees, for the
benefit of each Guarantied Party, as follows.
ARTICLE I
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Guarantors" is defined in the preamble.
"Guarantied Parties" means collectively, the Lenders, the
Administrative Agent, each Indemnitee and each Lender or Affiliate of a Lender
party to a Swap Contract related to any Loan Document with the Borrower or any
Subsidiary of the Borrower so long as, at the time of execution of such Swap
Contract, such Lender is a party to the Credit Agreement.
"Guaranty" is defined in the preamble.
Exhibit G-1
"Termination Date" means the date on which all the Obligations have
been paid in full in cash and the Commitments have been terminated or expired.
Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Each Guarantor hereby jointly and severally
absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of the Borrower and each other
Loan Party now or hereafter existing, whether for principal, interest
(including interest accruing at the then applicable rate provided in
the Credit Agreement after the occurrence of any Default set forth in
clauses (f) and (g) of Section 8.01 of the Credit Agreement, whether or
not a claim for post-filing or post-petition interest is allowed under
applicable law following the institution of a proceeding under
bankruptcy, insolvency or similar laws), fees, expenses or otherwise
(including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. Section362(a), and the operation of
Sections 502(6) and 506(6) of the United States Bankruptcy Code, 11
U.S.C. Section502(b) and Section506(b)); and
(b) indemnifies and holds harmless each Lender and each
Agent-Related Person for any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by such Guarantied
Party or Agent-Related Person in enforcing any rights under this
Guaranty except for any such costs and expenses arising by reason of
such Person's gross negligence or willful misconduct;
provided that each Guarantor shall only be liable under this Guaranty for the
maximum amount of such liability that can be hereby incurred without rendering
this Guaranty, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment when due and not
of collection, and each Guarantor specifically agrees that it shall not be
necessary or required that any Guarantied Party or Agent-Related Person exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
the Borrower, any other Loan Party or any other Person before or as a condition
to the obligations of such Guarantor hereunder.
SECTION 2.2. Reinstatement, etc. Each Guarantor hereby jointly and
severally agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is invalidated, declared to be fraudulent or
preferential, set aside, rescinded or must otherwise be restored by any
Guarantied
Exhibit G-1
Party or Agent-Related Person, including upon the occurrence of any Default set
forth in clauses (f) and (g) of Section 8.01 of the Credit Agreement or
otherwise, all as though such payment had not been made.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until the Termination Date
has occurred. Each Guarantor jointly and severally guarantees that the
Obligations of the Borrower and each other Loan Party will be paid strictly in
accordance with the terms of each Loan Document and Swap Contract under which
they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Guarantied Party or Agent-Related Person with respect thereto; provided that in
the event of any Disposition of the Equity Interests of any Guarantor to the
extent permitted by the Credit Agreement and to the extent that, after giving
effect to such Disposition, such Guarantor is no longer a Subsidiary of the
Borrower, such Guarantor and each Guarantor that is a Subsidiary of such
Guarantor shall be deemed automatically discharged and released from this
Guaranty and this Guaranty shall, as to each such Guarantor, be automatically
terminated and of no further force and effect, and the Administrative Agent
will, at the request of any such Guarantor and at such Guarantor's sole cost and
expense, execute and deliver such documents (without recourse and without
representation or warranty) as such Guarantor may reasonably request to evidence
such release. The liability of each Guarantor under this Guaranty shall be joint
and several, absolute, unconditional and irrevocable irrespective of
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any other Loan Document or any Swap Contract;
(b) the failure of any Guarantied Party or Agent-Related
Person (i) to assert any claim or demand or to enforce any right or
remedy against any Loan Party or any other Person (including any other
guarantor) under the provisions of any Loan Document, Swap Contract or
otherwise, or (ii) to exercise any right or remedy against any other
guarantor (including any Guarantor) of, or collateral securing, any
Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Obligations, or any other
extension, compromise or renewal of any Obligation;
(d) any reduction, limitation, impairment or termination of
any Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
each Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations or
otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to or departure from, any of the terms
of any Loan Document or any Swap Contract;
Exhibit G-1
(f) any addition, exchange or release of any Person that is a
guarantor (including any Guarantor hereunder) of the Obligations, or
any amendment to or waiver or release of or addition to, or consent to
or departure from, any other guaranty held by any Guarantied Party
securing any of the Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Loan Party, any surety or any guarantor.
SECTION 2.4. Setoff. Each Guarantor hereby irrevocably authorizes the
Administrative Agent and each other Guarantied Party, without the requirement
that any notice be given to such Guarantor (such notice being expressly waived
by each Guarantor), upon the occurrence and during the continuance of any
Default described in clauses (f) and (g) of Section 8.01 of the Credit Agreement
or, with the consent of the Required Lenders, upon the occurrence and during the
continuance of any other Event of Default, to set-off and appropriate and apply
to the payment of the Obligations (whether or not then due, and whether or not
any Guarantied Party has made any demand for payment of the Obligations), any
and all balances, claims, credits, deposits (general or special, time or demand,
provisional or final, but not any deposits held in a custodial, trust or other
fiduciary capacity), accounts or money of such Guarantor then or thereafter
maintained with such Guarantied Party; provided that any such appropriation and
application shall be subject to the provisions of Section 2.12 of the Credit
Agreement. Each Guarantied Party agrees to notify the applicable Guarantor and
the Administrative Agent after any such setoff and application has been made by
such Guarantied Party; provided that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each
Guarantied Party under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Guarantied Party may have.
SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that any Guarantied Party
protect, secure, perfect or insure any Lien, or any property subject thereto, or
exhaust any right or take any action against any Loan Party or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations, as the case may be.
SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty or any other Loan Document or Swap Contract to
which it is a party, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment
made hereunder, under any other Loan Document, under any Swap Contract or
otherwise, until following the Termination Date. Any amount paid to any
Guarantor on account of any such subrogation rights prior to the Termination
Date shall be held in trust for the benefit of the Guarantied Parties and shall
immediately be paid and turned over to the Administrative Agent for the benefit
of the Guarantied Parties in the exact form received by such Guarantor (duly
endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in accordance
with Section 2.7; provided
Exhibit G-1
that if any Guarantor has made payment to the Guarantied Parties of all or any
part of the Obligations and the Termination Date has occurred, then at such
Guarantor's request, the Administrative Agent (on behalf of the Guarantied
Parties) will, at the expense of such Guarantor, execute and deliver to such
Guarantor appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Obligations resulting from such payment. In furtherance of
the foregoing, at all times prior to the Termination Date, each Guarantor shall
refrain from taking any action or commencing any proceeding against the Borrower
or any other Loan Party (or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Guaranty to any Guarantied Party.
SECTION 2.7. Payments; Application. Each Guarantor hereby agrees with
each Lender as follows:
(a) Each Guarantor agrees that all payments made by such
Guarantor hereunder will be made in Dollars to the Administrative
Agent, without setoff, counterclaim or other defense and in accordance
with Sections 2.11 and 3.01 of the Credit Agreement, free and clear of
and without deduction for any Taxes, each Guarantor hereby agreeing to
comply with and be bound by the provisions of Sections 2.11 and 3.01 of
the Credit Agreement in respect of all payments made by it hereunder
and the provisions of which Sections are hereby incorporated into and
made a part of this Guaranty by this reference as if set forth herein;
provided that references to the "Borrower" in such Sections shall be
deemed to be references to each Guarantor, and references to "this
Agreement" in such Sections shall be deemed to be references to this
Guaranty.
(b) All payments made hereunder shall be applied by the
Administrative Agent upon receipt as provided in Section 8.03 of the
Credit Agreement.
SECTION 2.8. Subordination. All debt and other liabilities of the
Borrower to any Guarantor ("Borrower Debt") are expressly subordinate and junior
to the Obligations and any instruments evidencing the Borrower Debt to the
extent provided below.
(a) Until the Termination Date, each Guarantor agrees that it
will not request, demand, accept, or receive (by set-off or other
manner) any payment amount, credit or reduction of all or any part of
the amounts owing under the Borrower Debt or any security therefor,
except as specifically allowed pursuant to clause (b) below;
(b) Notwithstanding the provisions of clause (a) above, the
Borrower may pay to the Guarantors and the Guarantors may request,
demand, accept and receive and retain from the Borrower payments,
credits or reductions of all or any part of the amounts owing under the
Borrower Debt or any security therefor on the Borrower Debt, provided
that the Borrower's right to pay and the Guarantor's right to receive
any such amount shall automatically and be immediately suspended and
cease (A) upon the occurrence and during the continuance of a Default
or Event of Default or (B) if, after taking into account the effect of
such payment, a Default or Event of Default would occur and be
continuing.
Exhibit G-1
The Guarantors' right to receive amounts under this clause (b)
(including any amounts which theretofore may have been suspended) shall
automatically be reinstated at such time as the Default or Event of
Default which was the basis of such suspension has been cured or waived
(provided that no subsequent Default or Event of Default has occurred)
or such earlier date, if any, as the Administrative Agent gives notice
to the Guarantors of reinstatement by the Required Lenders, in the
Required Lenders' sole discretion;
(c) If any Guarantor receives any payment on the Borrower Debt
in violation of this Guaranty, such Guarantor will hold such payment in
trust for the Lenders and will immediately deliver such payment to the
Administrative Agent; and
(d) In the event of the commencement or joinder of any suit,
action or proceeding of any type (judicial or otherwise) or proceeding
under any Debtor Relief Law against the Borrower (an "Insolvency
Proceeding") and subject to court orders issued pursuant to the
Bankruptcy Code, the Obligations shall first be paid, discharged and
performed in full before any payment or performance is made upon the
Borrower Debt notwithstanding any other provisions which may be made in
such Insolvency Proceeding. In the event of any Insolvency Proceeding,
each Guarantor will at any time prior to the Termination Date (A) file,
at the request of any Guarantied Party, any claim, proof of claim or
similar instrument necessary to enforce the Borrower's obligation to
pay the Borrower Debt, and (B) hold in trust for and pay to the
Guarantied Parties any and all monies, obligations, property, stock
dividends or other assets received in any such proceeding on account of
the Borrower Debt in order that the Guarantied Parties may apply such
monies or the cash proceeds of such other assets to the Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations. In order to induce the Lenders to enter
into the Credit Agreement and make Credit Extensions thereunder, each Guarantor
represents and warrants to each Lender as set forth below.
(a) The representations and warranties contained in Article V
of the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to such Guarantor and its properties,
are true and correct in all material respects, each such representation
and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terns of the Credit Agreement to which
reference is made therein, together with all related definitions and
ancillary provisions, being hereby incorporated into this Guaranty by
this reference as though specifically set forth in this Article.
(b) Each Guarantor has knowledge of the Borrower's and each
other Loan Party's financial condition and affairs and it has adequate
means to obtain from the Borrower and each other Loan Party on an
ongoing basis information relating thereto and to the Borrower's and
such Loan Party's ability to pay and perform the Obligations, and
agrees to assume the responsibility for keeping, and to keep, so
informed for so long as this Guaranty is in effect. Each Guarantor
acknowledges and agrees that the Guarantied
Exhibit G-1
Parties shall have no obligation to investigate the financial condition
or affairs of any Loan Party for the benefit of such Guarantor nor to
advise such Guarantor of any fact respecting, or any change in, the
financial condition or affairs of the Borrower or any other Loan Party
that might become known to any Guarantied Party at any time, whether or
not such Guarantied Party knows or believes or has reason to know or
believe that any such fact or change is unknown to such Guarantor, or
might (or does) materially increase the risk of such Guarantor as
guarantor, or might (or would) affect the willingness of such Guarantor
to continue as a guarantor of the Obligations.
(c) It is in the best interests of each Guarantor to execute
this Guaranty inasmuch as such Guarantor will, as a result of being a
Subsidiary of the Borrower, derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders pursuant to the Credit Agreement, and each
Guarantor agrees that the Lenders are relying on this representation in
agreeing to make Credit Extensions to the Borrower.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Covenants. Each Guarantor covenants and agrees that, at
all times prior to the Termination Date, it will perform, comply with and be
bound by all of the agreements, covenants and obligations contained in the
Credit Agreement (including Articles VI and VII of the Credit Agreement) which
are applicable to such Guarantor or its properties, each such agreement,
covenant and obligation contained in the Credit Agreement and all other terms of
the Credit Agreement to which reference is made in this Article, together with
all related definitions and ancillary provisions, being hereby incorporated into
this Guaranty by this reference as though specifically set forth in this
Article.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article X thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. This Guaranty shall be jointly and severally binding upon each
Guarantor and its successors, transferees and assigns and shall inure to the
benefit of and be enforceable by each Guarantied Party and their respective
successors, transferees and assigns; provided that no Guarantor may (unless
otherwise permitted under the terms of the Credit Agreement) assign any of its
obligations hereunder without the prior written consent of all Guarantied
Parties.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by any Guarantor under
this Guaranty, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent (on
Exhibit G-1
behalf of the Guarantied Parties or the Required Lenders, as the case may be,
pursuant to Section 10.01 of the Credit Agreement) and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 5.4. Notices. All notices and other communications provided for
hereunder shall be in writing (including facsimile communication) and mailed,
telecopied or delivered to the applicable Guarantor, in care of the Borrower, to
the address or facsimile number of the Borrower specified in the Credit
Agreement or, if such notice or communication is to the Administrative Agent, to
the address for the Administrative Agent set forth in the Credit Agreement, or,
with respect to such Guarantor or the Administrative Agent, at such other
address or facsimile number as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and other communications, when mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any such notice or
communication, if transmitted by facsimile, shall be deemed given when the
confirmation of transmission thereof is received by the transmitter.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.2 and Section 2.5, no failure on the part of any Guarantied Party
or Agent-Related Person to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 5.6. Additional Subsidiary Guarantors. Upon the execution and
delivery by any other Person of a supplement in the form of Annex I hereto, such
Person shall become a "Guarantor" hereunder with the same force and effect as if
it were originally a party to this Guaranty and named as a "Guarantor"
hereunder. The execution and delivery of such supplement shall not require the
consent of any other Guarantor hereunder, and the rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Guaranty.
SECTION 5.7. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.9. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS
Exhibit G-1
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
SECTION 5.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE GUARANTIED
PARTIES OR ANY GUARANTOR SHALL BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY AND
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
EACH GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW
YORK. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH GUARANTOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.11. Counterparts. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 5.12. Waiver of Jury Trial. EACH GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE GUARANTIED
Exhibit G-1
PARTIES OR SUCH GUARANTOR. EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Exhibit G-1
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its Authorized Officer as of the date first above
written.
[NAME OF GUARANTOR]
By:
---------------------------------
Name:
-----------------------
Title:
-----------------------
[NAME OF GUARANTOR]
By:
---------------------------------
Name:
-----------------------
Title:
-----------------------
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
---------------------------------
Name:
-----------------------
Title:
Exhibit G-1
ANNEX I
TO THE SUBSIDIARY GUARANTY
THIS SUPPLEMENT, dated as of November __, 20___ (this "Supplement"), is
to the Subsidiary Guaranty, dated as of November __, 2004 (as amended,
supplemented, amended and restated or otherwise modified, the "Guaranty"), among
the Guarantors (such capitalized term, and other terms used in this Supplement,
to have the meanings set forth in Article I of the Guaranty) from time to time
party thereto, in favor of the Guarantied Parties.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of Section 5.6 of the Guaranty, the
undersigned is becoming a Guarantor under the Guaranty; and
WHEREAS, the undersigned Guarantor desires to become a "Guarantor" under
the Guaranty in order to induce the Lenders to continue to extend Credit
Extensions under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, and for other
consideration (the receipt and sufficiency of which is hereby acknowledged), the
undersigned agrees, for the benefit of each Guarantied Party, as follows.
SECTION 1. Party to Guaranty, etc. In accordance with the terms of the
Guaranty, by its signature below the undersigned hereby irrevocably agrees to
become a Guarantor under the Guaranty with the same force and effect as if it
were an original signatory thereto and the undersigned Guarantor hereby (a)
agrees to be bound by and comply with all of the terms and provisions of the
Guaranty applicable to it as a Guarantor and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct as of the date hereof, unless stated to relate solely to an earlier
date, in which case, such representations and warranties shall be true and
correct in all material respects as of such earlier date. In furtherance of the
foregoing, each reference to a "Guarantor" in the Guaranty shall be deemed to
include the undersigned Guarantor.
SECTION 2. Representations. The undersigned Guarantor hereby represents
and warrants that this Supplement has been duly authorized, executed and
delivered by it and that this Supplement and the Guaranty constitute the legal,
valid and binding obligation of the undersigned Guarantor, enforceable against
it in accordance with its terms.
SECTION 3. Full Force of Guaranty. Except as expressly supplemented
hereby, the Guaranty shall remain in full force and effect in accordance with
its terms.
SECTION 4. Severability. In the event any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guaranty shall not in any way be affected
or impaired.
Exhibit G-1
SECTION 5. Governing Law, Entire Agreement, etc. THIS SUPPLEMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS SUPPLEMENT AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 6. Counterparts. This Supplement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
Exhibit G-1
IN WITNESS WHEREOF, the undersigned Guarantor has caused this Supplement
to be duly executed and delivered by its Authorized Officer as of the date first
above written.
[NAME OF GUARANTOR]
By:
---------------------------------
Name:
----------------------
Title:
----------------------
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
---------------------------------
Name:
---------------------
Title:
Exhibit G-1
EXHIBIT G-2
PARENT GUARANTY
This PARENT GUARANTY (as amended, supplemented, amended and restated or
otherwise modified from time to time, this "Guaranty"), dated as of November __,
2004 is made by FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the
"Guarantor"), in favor of each of the Guarantied Parties (as defined below),
including WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as the
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of November 8, 2004
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among Fidelity National Information Services,
Inc. (the "Borrower"), the Lenders, the Administrative Agent, the Lenders have
extended Commitments to make Credit Extensions to the Borrower; and
WHEREAS, as a condition precedent to the making of the Credit Extensions
under the Credit Agreement, the Guarantor is required to execute and deliver
this Guaranty;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Credit
Extensions to the Borrower, the Guarantor agrees, for the benefit of each
Guarantied Party, as follows.
ARTICLE I
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guarantied Parties" means collectively, the Lenders, the Administrative
Agent, each Indemnitee and each Lender or Affiliate of a Lender party to a Swap
Contract related to any Loan Document with the Borrower or any Subsidiary of the
Borrower so long as, at the time of execution of such Swap Contract, such Lender
is a party to the Credit Agreement.
"Guaranty" is defined in the preamble.
Exhibit G-2
"Termination Date" means the date on which all the Obligations have been
paid in full in cash and the Commitments have been terminated or expired.
Credit Agreement Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Guaranty, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. The Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of the Borrower and each other
Loan Party now or hereafter existing, whether for principal, interest
(including interest accruing at the then applicable rate provided in the
Credit Agreement after the occurrence of any Default set forth in
clauses (f) and (g) of Section 8.01 of the Credit Agreement, whether or
not a claim for post-filing or post-petition interest is allowed under
applicable law following the institution of a proceeding under
bankruptcy, insolvency or similar laws), fees, expenses or otherwise
(including all such amounts which would become due but for the operation
of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of Sections
502(6) and 506(6) of the United States Bankruptcy Code, 11 U.S.C.
Section 502(b) and Section 506(b)); and
(b) indemnifies and holds harmless each Lender and each
Agent-Related Person for any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by such Guarantied
Party or Agent-Related Person in enforcing any rights under this
Guaranty except for any such costs and expenses arising by reason of
such Person's gross negligence or willful misconduct;
provided that the Guarantor shall only be liable under this Guaranty for the
maximum amount of such liability that can be hereby incurred without rendering
this Guaranty, as it relates to the Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment when due and not
of collection, and the Guarantor specifically agrees that it shall not be
necessary or required that any Guarantied Party or Agent-Related Person exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
the Borrower, any other Loan Party or any other Person before or as a condition
to the obligations of the Guarantor hereunder.
SECTION 2.2. Reinstatement, etc. The Guarantor hereby agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
invalidated, declared to be fraudulent or preferential, set aside, rescinded or
must otherwise be restored by any Guarantied Party or Agent-Related Person,
including upon the occurrence of any Default set forth in clauses (f) and
Exhibit G-2
(g) of Section 8.01 of the Credit Agreement or otherwise, all as though such
payment had not been made.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until the Termination Date has
occurred. The Guarantor guarantees that the Obligations of the Borrower and each
other Loan Party will be paid strictly in accordance with the terms of each Loan
Document and Swap Contract under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Guarantied Party or Agent-Related Person with
respect thereto. The liability of the Guarantor under this Guaranty shall be
joint and several, absolute, unconditional and irrevocable irrespective of
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any other Loan Document or any Swap Contract;
(b) the failure of any Guarantied Party or Agent-Related Person
(i) to assert any claim or demand or to enforce any right or remedy
against any Loan Party or any other Person (including any other
guarantor) under the provisions of any Loan Document, Swap Contract or
otherwise, or (ii) to exercise any right or remedy against any other
guarantor (of, or collateral securing, any Obligations;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Obligations, or any other
extension, compromise or renewal of any Obligation;
(d) any reduction, limitation, impairment or termination of any
Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
the Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations or
otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to or departure from, any of the terms of any Loan
Document or any Swap Contract;
(f) any addition, exchange or release of any Person that is a
guarantor of the Obligations, or any amendment to or waiver or release
of or addition to, or consent to or departure from, any other guaranty
held by any Guarantied Party securing any of the Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Loan Party, any surety or any guarantor.
Exhibit G-2
SECTION 2.4. Setoff. The Guarantor hereby irrevocably authorizes the
Administrative Agent and each other Guarantied Party, without the requirement
that any notice be given to the Guarantor (such notice being expressly waived by
the Guarantor), upon the occurrence and during the continuance of any Default
described in clauses (f) and (g) of Section 8.01 of the Credit Agreement or,
with the consent of the Required Lenders, upon the occurrence and during the
continuance of any other Event of Default, to set-off and appropriate and apply
to the payment of the Obligations (whether or not then due, and whether or not
any Guarantied Party has made any demand for payment of the Obligations), any
and all balances, claims, credits, deposits (general or special, time or demand,
provisional or final, but not any deposits held in a custodial, trust or other
fiduciary capacity), accounts or money of the Guarantor then or thereafter
maintained with such Guarantied Party; provided that any such appropriation and
application shall be subject to the provisions of Section 2.12 of the Credit
Agreement. Each Guarantied Party agrees to notify the Guarantor and the
Administrative Agent after any such setoff and application has been made by such
Guarantied Party; provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Guarantied Party
under this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Guarantied Party
may have.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that any Guarantied Party
protect, secure, perfect or insure any Lien, or any property subject thereto, or
exhaust any right or take any action against any Loan Party or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations, as the case may be.
SECTION 2.6. Postponement of Subrogation, etc. The Guarantor agrees that
it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty or any other Loan Document or Swap Contract to
which it is a party, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from any Loan Party, in respect of any payment
made hereunder, under any other Loan Document, under any Swap Contract or
otherwise, until following the Termination Date. Any amount paid to the
Guarantor on account of any such subrogation rights prior to the Termination
Date shall be held in trust for the benefit of the Guarantied Parties and shall
immediately be paid and turned over to the Administrative Agent for the benefit
of the Guarantied Parties in the exact form received by the Guarantor (duly
endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in accordance
with Section 2.7; provided that if the Guarantor has made payment to the
Guarantied Parties of all or any part of the Obligations and the Termination
Date has occurred, then at the Guarantor's request, the Administrative Agent (on
behalf of the Guarantied Parties) will, at the expense of the Guarantor, execute
and deliver to the Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination Date, the
Guarantor shall refrain from taking any action or commencing any proceeding
against the Borrower or any other Loan Party (or its successors or assigns,
whether in connection with a bankruptcy proceeding or otherwise) to recover any
amounts in respect of payments made under this Guaranty to any Guarantied Party.
Exhibit G-2
SECTION 2.7. Payments; Application. The Guarantor hereby agrees with
each Lender as follows:
(a) The Guarantor agrees that all payments made by the Guarantor
hereunder will be made in Dollars to the Administrative Agent, without
setoff, counterclaim or other defense and in accordance with Sections
2.11 and 3.01 of the Credit Agreement, free and clear of and without
deduction for any Taxes, the Guarantor hereby agreeing to comply with
and be bound by the provisions of Sections 2.11 and 3.01 of the Credit
Agreement in respect of all payments made by it hereunder and the
provisions of which Sections are hereby incorporated into and made a
part of this Guaranty by this reference as if set forth herein; provided
that references to the "Borrower" in such Sections shall be deemed to be
references to the Guarantor, and references to "this Agreement" in such
Sections shall be deemed to be references to this Guaranty.
(b) All payments made hereunder shall be applied by the
Administrative Agent upon receipt as provided in Section 8.03 of the
Credit Agreement.
SECTION 2.8. Subordination. All debt and other liabilities of the
Borrower to the Guarantor ("Borrower Debt") are expressly subordinate and junior
to the Obligations and any instruments evidencing the Borrower Debt to the
extent provided below.
(a) Until the Termination Date, the Guarantor agrees that it will
not request, demand, accept, or receive (by set-off or other manner) any
payment amount, credit or reduction of all or any part of the amounts
owing under the Borrower Debt or any security therefor, except as
specifically allowed pursuant to clause (b) below;
(b) Notwithstanding the provisions of clause (a) above, the
Borrower may pay to the Guarantor and the Guarantor may request, demand,
accept and receive and retain from the Borrower payments, credits or
reductions of all or any part of the amounts owing under the Borrower
Debt or any security therefor on the Borrower Debt, provided that the
Borrower's right to pay and the Guarantor's right to receive any such
amount shall automatically and be immediately suspended and cease (A)
upon the occurrence and during the continuance of a Default or Event of
Default or (B) if, after taking into account the effect of such payment,
a Default or Event of Default would occur and be continuing. The
Guarantors' right to receive amounts under this clause (b) (including
any amounts which theretofore may have been suspended) shall
automatically be reinstated at such time as the Default or Event of
Default which was the basis of such suspension has been cured or waived
(provided that no subsequent Default or Event of Default has occurred)
or such earlier date, if any, as the Administrative Agent gives notice
to the Guarantor of reinstatement by the Required Lenders, in the
Required Lenders' sole discretion;
(c) If the Guarantor receives any payment on the Borrower Debt in
violation of this Guaranty, the Guarantor will hold such payment in
trust for the Lenders and will immediately deliver such payment to the
Administrative Agent; and
Exhibit G-2
(d) In the event of the commencement or joinder of any suit,
action or proceeding of any type (judicial or otherwise) or proceeding
under any Debtor Relief Law against the Borrower (an "Insolvency
Proceeding") and subject to court orders issued pursuant to the
Bankruptcy Code, the Obligations shall first be paid, discharged and
performed in full before any payment or performance is made upon the
Borrower Debt notwithstanding any other provisions which may be made in
such Insolvency Proceeding. In the event of any Insolvency Proceeding,
the Guarantor will at any time prior to the Termination Date (A) file,
at the request of any Guarantied Party, any claim, proof of claim or
similar instrument necessary to enforce the Borrower's obligation to pay
the Borrower Debt, and (B) hold in trust for and pay to the Guarantied
Parties any and all monies, obligations, property, stock dividends or
other assets received in any such proceeding on account of the Borrower
Debt in order that the Guarantied Parties may apply such monies or the
cash proceeds of such other assets to the Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations. In order to induce the Lenders to enter
into the Credit Agreement and make Credit Extensions thereunder, the Guarantor
represents and warrants to each Lender as set forth below.
(a) The representations and warranties contained in Article V of
the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to the Guarantor and its properties,
are true and correct in all material respects, each such representation
and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terns of the Credit Agreement to which
reference is made therein, together with all related definitions and
ancillary provisions, being hereby incorporated into this Guaranty by
this reference as though specifically set forth in this Article.
(b) The Guarantor has knowledge of the Borrower's and each other
Loan Party's financial condition and affairs and it has adequate means
to obtain from the Borrower and each other Loan Party on an ongoing
basis information relating thereto and to the Borrower's and such Loan
Party's ability to pay and perform the Obligations, and agrees to assume
the responsibility for keeping, and to keep, so informed for so long as
this Guaranty is in effect. The Guarantor acknowledges and agrees that
the Guarantied Parties shall have no obligation to investigate the
financial condition or affairs of any Loan Party for the benefit of the
Guarantor nor to advise the Guarantor of any fact respecting, or any
change in, the financial condition or affairs of the Borrower or any
other Loan Party that might become known to any Guarantied Party at any
time, whether or not such Guarantied Party knows or believes or has
reason to know or believe that any such fact or change is unknown to the
Guarantor, or might (or does) materially increase the risk of the
Guarantor as guarantor, or might (or would) affect the willingness of
the Guarantor to continue as a guarantor of the Obligations.
(c) It is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and
indirect benefits from the
Exhibit G-2
Credit Extensions made from time to time to the Borrower by the Lenders
pursuant to the Credit Agreement, and the Guarantor agrees that the
Lenders are relying on this representation in agreeing to make Credit
Extensions to the Borrower.
ARTICLE IV
INCORPORATED REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1. Incorporated Representations, Warranties and Covenants from
Parent Credit Agreement. Reference is made to the Parent Credit Agreement.
Further reference is made to the representations and covenants contained in
Article V thereof (herein referred to as the "Incorporated Representations") and
the affirmative and negative covenants contained in Articles VI and VII,
respectively, thereof (hereinafter referred to as the "Incorporated Covenants"),
each as amended and modified to the date hereof, and together with all other
relevant provisions of the Parent Credit Agreement related thereto, including
specifically without limitation the defined terms contained in Article I thereof
which are used in the Incorporated Representations and the Incorporated
Covenants. The Guarantor hereby (a) affirms and represents and warrants to the
Guarantied Parties that the Parent Credit Agreement is in full force and effect
on the date hereof and that the Incorporated Representations are true and
correct in all material respects as of the date hereof, except to the extent
that such representations and warranties relate solely to an earlier date, and
(b) covenants and agrees that the Incorporated Covenants shall be as binding on
the Guarantor as if set forth fully herein; provided, however, that (i) such
Incorporated Representations and Covenants as incorporated herein shall reflect
that they are delivered to and run in favor of the Guarantied Parties under the
Credit Agreement, rather than solely Bank of America, N.A., as administrative
agent, and the lenders party to the Parent Credit Agreement as literally
provided in the Parent Credit Agreement, (ii) any amendments or other
modifications to the Parent Credit Agreement subsequent to the date hereof shall
not be applicable to such Incorporated Covenants as used herein unless they are
approved in writing by the Required Lenders, (iii) any breach or default under
the Parent Credit Agreement subsequent to the date hereof relating to such
Incorporated Covenants that is waived by the lenders under the Parent Credit
Agreement shall not be considered waived for purposes hereof unless such waiver
is adopted in writing by the Required Lenders and (iv) in the event that the
Parent Credit Agreement shall be refinanced or replaced by another credit
agreement or terminated, then the Incorporated Representations and Covenants
shall be as provided herein as if no such refinancing, replacement or
termination had occurred.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof, including Article X thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment.
This Guaranty shall be jointly and severally binding upon the Guarantor and its
successors, transferees and assigns and shall inure to the benefit of and be
enforceable by each Guarantied Party and
their respective successors, transferees and assigns; provided that the
Guarantor may not (unless otherwise permitted under the terms of the Credit
Agreement) assign any of its obligations hereunder without the prior written
consent of all Guarantied Parties.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by the Guarantor under this
Guaranty, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Guarantied Parties or
the Required Lenders, as the case may be, pursuant to Section 10.01 of the
Credit Agreement) and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices and other communications provided for
hereunder shall be in writing (including facsimile communication) and mailed,
telecopied or delivered to the Guarantor, in care of the Borrower, to the
address or facsimile number of the Borrower specified in the Credit Agreement
or, if such notice or communication is to the Administrative Agent, to the
address for the Administrative Agent set forth in the Credit Agreement, or, with
respect to the Guarantor or the Administrative Agent, at such other address or
facsimile number as shall be designated by such party in a written notice to
each other party complying as to delivery with the terms of this Section. All
such notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by facsimile, shall be deemed given when the confirmation of
transmission thereof is received by the transmitter.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.2 and Section 2.5, no failure on the part of any Guarantied Party
or Agent-Related Person to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 5.6. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.7. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.8. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
Exhibit G-2
RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.9. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE GUARANTIED PARTIES OR THE GUARANTOR
SHALL BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THE
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.10. Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 5.11. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE GUARANTIED PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
Exhibit G-2
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING
INTO THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Exhibit G-2
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its Authorized Officer as of the date first above
written.
FIDELITY NATIONAL FINANCIAL, INC.
By:
---------------------------------
Name:
----------------------
Title:
----------------------
ACCEPTED AND AGREED FOR ITSELF
AND ON BEHALF OF THE LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
--------------------------------
Name:
--------------------
Title:
Exhibit G-2
