EXECUTION COPY
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$50,000,000
REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 20, 1998
AMONG
TELETECH HOLDINGS, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
THE CO-AGENTS PARTY THERETO
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
NATIONSBANC XXXXXXXXXX SECURITIES LLC
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TABLE OF CONTENTS
Section Page
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ARTICLE IDEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . . . . . . . . . . . . . . . .21
1.03 Accounting Principles . . . . . . . . . . . . . . . . . . . . .22
ARTICLE IITHE CREDITS. . . . . . . . . . . . . . . . . . . . . . . . . . .23
2.01 Amounts and Terms of Commitments; Tranche Modifications . . . .23
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . .24
2.03 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . .24
2.04 Conversion and Continuation Elections . . . . . . . . . . . . .26
2.05 Voluntary Termination or Reduction of Commitments . . . . . . .27
2.06 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . .27
2.07 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . .28
2.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . .28
2.09 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
(a) Arrangement, Agency Fees . . . . . . . . . . . . . . . . .29
(b) Commitment Fees. . . . . . . . . . . . . . . . . . . . . .29
2.10 Computation of Fees and Interest. . . . . . . . . . . . . . . .29
2.11 Payments by the Company . . . . . . . . . . . . . . . . . . . .30
2.12 Payments by the Lenders to the Administrative Agent . . . . . .31
2.13 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . .31
2.14 Security and Guaranty . . . . . . . . . . . . . . . . . . . . .32
2.15 Extensions of the Commitments . . . . . . . . . . . . . . . . .32
ARTICLE IIITAXES, YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . . .33
3.01 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
3.02 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . .34
3.03 Increased Costs and Reduction of Return . . . . . . . . . . . .35
3.04 Funding Losses. . . . . . . . . . . . . . . . . . . . . . . . .35
3.05 Inability to Determine Rates. . . . . . . . . . . . . . . . . .36
3.06 Reserves on Offshore Rate Loans . . . . . . . . . . . . . . . .36
3.07 Certificates of Lenders . . . . . . . . . . . . . . . . . . . .37
3.08 Substitution of Lenders . . . . . . . . . . . . . . . . . . . .37
3.09 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE IVCONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . .37
4.01 Conditions of Initial Loans . . . . . . . . . . . . . . . . . .37
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(a) Credit Agreement and Notes . . . . . . . . . . . . . . . .37
(b) Resolutions; Incumbency. . . . . . . . . . . . . . . . . .37
(c) Organization Documents; Good Standing. . . . . . . . . . .38
(d) Legal Opinions . . . . . . . . . . . . . . . . . . . . . .38
(e) Payment of Fees. . . . . . . . . . . . . . . . . . . . . .38
(f) Collateral Documents . . . . . . . . . . . . . . . . . . .38
(g) Certificate. . . . . . . . . . . . . . . . . . . . . . . .39
(h) Year 2000. . . . . . . . . . . . . . . . . . . . . . . . .39
(i) Other Documents. . . . . . . . . . . . . . . . . . . . . .39
4.02 Conditions to All Borrowings. . . . . . . . . . . . . . . . . .39
(a) Notice of Borrowing or Conversion/Continuation . . . . . .39
(b) Continuation of Representations and Warranties . . . . . .39
(c) No Existing Default. . . . . . . . . . . . . . . . . . . .39
(d) Maximum Loan Balance . . . . . . . . . . . . . . . . . . .40
(e) No Future Advance Notice . . . . . . . . . . . . . . . . .40
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . .40
5.01 Corporate Existence and Power . . . . . . . . . . . . . . . . .40
5.02 Corporate Authorization; No Contravention . . . . . . . . . . .40
5.03 Governmental Authorization. . . . . . . . . . . . . . . . . . .41
5.04 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . .41
5.05 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . .41
5.06 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . .42
5.07 ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . . .42
5.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . .42
5.09 Title to Properties . . . . . . . . . . . . . . . . . . . . . .43
5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
5.11 Financial Condition . . . . . . . . . . . . . . . . . . . . . .43
5.12 Environmental Matters . . . . . . . . . . . . . . . . . . . . .43
5.13 Collateral Documents. . . . . . . . . . . . . . . . . . . . . .44
5.14 Regulated Entities. . . . . . . . . . . . . . . . . . . . . . .44
5.15 No Burdensome Restrictions. . . . . . . . . . . . . . . . . . .45
5.16 Copyrights, Patents, Trademarks and Licenses, etc.. . . . . . .45
5.17 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . .45
5.18 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .45
5.19 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . .45
5.20 Swap Obligations. . . . . . . . . . . . . . . . . . . . . . . .45
5.21 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . .46
5.22 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . .46
ARTICLE VI AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . .46
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6.01 Financial Statements and Other Reports. . . . . . . . . . . . .46
6.02 Certificates; Other Information . . . . . . . . . . . . . . . .47
6.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
6.04 Preservation of Corporate Existence, Etc. . . . . . . . . . . .50
6.05 Maintenance of Property . . . . . . . . . . . . . . . . . . . .50
6.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .50
6.07 Payment of Obligations. . . . . . . . . . . . . . . . . . . . .50
6.08 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . .51
6.09 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . .51
6.10 Inspection of Property and Books and Records. . . . . . . . . .51
6.11 Environmental Laws. . . . . . . . . . . . . . . . . . . . . . .51
6.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . .52
6.13 Further Assurances. . . . . . . . . . . . . . . . . . . . . . .52
ARTICLE VII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . .53
7.01 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . .53
7.02 Disposition of Assets . . . . . . . . . . . . . . . . . . . . .54
7.03 Consolidations and Mergers. . . . . . . . . . . . . . . . . . .55
7.04 Loans and Investments . . . . . . . . . . . . . . . . . . . . .55
7.05 Limitation on Indebtedness. . . . . . . . . . . . . . . . . . .56
7.06 Transactions with Affiliates. . . . . . . . . . . . . . . . . .56
7.07 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . .57
7.08 Contingent Obligations. . . . . . . . . . . . . . . . . . . . .57
7.09 Joint Ventures. . . . . . . . . . . . . . . . . . . . . . . . .57
7.10 Lease Obligations . . . . . . . . . . . . . . . . . . . . . . .57
7.11 Restricted Payments . . . . . . . . . . . . . . . . . . . . . .58
7.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
7.13 Amendments to Charter Documents . . . . . . . . . . . . . . . .58
7.14 Change in Business. . . . . . . . . . . . . . . . . . . . . . .58
7.15 Accounting Changes. . . . . . . . . . . . . . . . . . . . . . .59
7.16 Debt to EBITDAR Ratio . . . . . . . . . . . . . . . . . . . . .59
7.17 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . .59
7.18 Quarterly Profitability . . . . . . . . . . . . . . . . . . . .59
7.19 Maximum Combination of Cash Capital Expenditures
and Permitted Acquisitions. . . . . . . . . . . . . . . . . . .59
7.20 Permitted Acquisitions. . . . . . . . . . . . . . . . . . . . .59
7.21 Secured Amount. . . . . . . . . . . . . . . . . . . . . . . . .59
7.22 Restrictive Agreements. . . . . . . . . . . . . . . . . . . . .59
ARTICLE VIIIEVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . .60
8.01 Event of Default. . . . . . . . . . . . . . . . . . . . . . . .60
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(a) Non-Payment. . . . . . . . . . . . . . . . . . . . . . . .60
(b) Representation or Warranty . . . . . . . . . . . . . . . .60
(c) Specific Defaults. . . . . . . . . . . . . . . . . . . . .60
(d) Other Defaults . . . . . . . . . . . . . . . . . . . . . .60
(e) Cross-Default. . . . . . . . . . . . . . . . . . . . . . .60
(f) Insolvency; Voluntary Proceedings. . . . . . . . . . . . .61
(g) Involuntary Proceedings. . . . . . . . . . . . . . . . . .61
(h) ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . .61
(i) Monetary Judgments . . . . . . . . . . . . . . . . . . . .62
(j) Non-Monetary Judgments . . . . . . . . . . . . . . . . . .62
(k) Change of Control. . . . . . . . . . . . . . . . . . . . .62
(l) Loss of Licenses . . . . . . . . . . . . . . . . . . . . .62
(m) Adverse Change . . . . . . . . . . . . . . . . . . . . . .62
(n) Guarantor Defaults . . . . . . . . . . . . . . . . . . . .62
(o) Collateral . . . . . . . . . . . . . . . . . . . . . . . .63
8.02 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . .63
8.03 Rights Not Exclusive. . . . . . . . . . . . . . . . . . . . . .63
ARTICLE IXTHE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . .64
9.01 Appointment and Authorization; "Administrative Agent" . . . . .64
9.02 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . .64
9.03 Liability of Administrative Agent . . . . . . . . . . . . . . .64
9.04 Reliance by Administrative Agent. . . . . . . . . . . . . . . .65
9.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . .65
9.06 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . .66
9.07 Indemnification of Administrative Agent . . . . . . . . . . . .66
9.08 Administrative Agent in Individual Capacity . . . . . . . . . .67
9.09 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . .67
9.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . . .67
9.11 Collateral Matters. . . . . . . . . . . . . . . . . . . . . . .69
9.12 Co-Agents . . . . . . . . . . . . . . . . . . . . . . . . . . .70
ARTICLE XMISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . .70
10.01 Amendments and Waivers . . . . . . . . . . . . . . . . . . . .70
10.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .71
10.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . .72
10.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . .72
10.05 Company Indemnification. . . . . . . . . . . . . . . . . . . .73
10.06 Marshalling; Payments Set Aside. . . . . . . . . . . . . . . .73
10.07 Successors and Assigns . . . . . . . . . . . . . . . . . . . .74
10.08 Assignments, Participations, etc.. . . . . . . . . . . . . . .74
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10.09 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . .76
10.10 Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . . .77
10.11 Automatic Debits of Fees . . . . . . . . . . . . . . . . . . .77
10.12 Notification of Addresses, Lending Offices, Etc. . . . . . . .77
10.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .78
10.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . .78
10.15 No Third Parties Benefited . . . . . . . . . . . . . . . . . .78
10.16 Governing Law and Jurisdiction . . . . . . . . . . . . . . . .78
10.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . .78
10.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . .79
SCHEDULES
Schedule 2.01 Commitments
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is entered into as of November 20, 1998,
among TeleTech Holdings, Inc., a Delaware corporation (the "COMPANY"), the
several financial institutions from time to time party to this Agreement
(collectively, the "LENDERS"; individually, a "LENDER"), Bank of America
National Trust and Savings Association, as Administrative Agent for the Lenders,
and the parties identified on the signature pages hereto as Co-Agents in such
capacity.
WHEREAS, the Lenders have agreed to make available to the Company a
revolving credit facility that is partially secured upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"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 capital stock, partnership interests, membership interests or
equity 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 a Person that is a Subsidiary) provided that the
Company or the Subsidiary is the surviving entity.
"ADMINISTRATIVE AGENT" means BofA in its capacity as Administrative
Agent for the Lenders xxxxxxxxx, and any successor agent arising under
SECTION 9.09.
"AFFILIATE" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.
"AGENT-RELATED PERSONS" means the initial Administrative Agent and any
successor agent arising under SECTION 9.09, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for payments set forth on
SCHEDULE 10.02 or such other address as the Administrative Agent may from
time to time specify.
"AGGREGATE COMMITMENT" means the aggregate Commitments of the Lenders.
"AGREEMENT" means this Revolving Credit Agreement.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means (a) with respect to the
Tranche A Commitment Amount, .125% and (b) with respect to the Tranche B
Commitment Amount, subject to the last sentence of this definition, for any
period, the applicable of the following percentages in effect with respect
to such period as the Debt to EBITDAR Ratio of the Company shall fall
within the indicated ranges:
Debt to EBITDAR Ratio Commitment Fee
> = 2.50 to 1.0 0.35%
> = 2.0 to 1.0 and 0.30
< 2.50 to 1.0
> = 1.0 to 1.0 and 0.25
< 2.0 to 1.0
< 1.0 to 1.0 0.20
The Debt to EBITDAR Ratio shall be calculated by the Company as of the end
of each fiscal quarter, commencing with the fiscal quarter ended September
30, 1998, and shall be reported to the Administrative Agent pursuant to a
Compliance Certificate executed by a Responsible Officer of the Company and
delivered pursuant to SUBSECTION 6.02(b) hereof. The Applicable Commitment
Fee Percentage with respect to the Tranche B Commitment Amount shall be
adjusted, if necessary, on the third Business Day after the delivery of
such certificate; PROVIDED, that if such certificate, together with the
financial statements to which such certificate relates, is not delivered to
the Administrative Agent by the fifth Business Day after the date on which
the related financial statements are due to be delivered to the
Administrative Agent pursuant to SUBSECTION 6.01(a) or (b), then, from such
fifth Business Day until the third Business Day after delivery of such
certificate, the Applicable Commitment Fee Percentage with respect to the
Tranche B
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Commitment Amount shall be equal to 0.35%. From the Closing Date
until adjusted as described above, the Applicable Commitment Fee Percentage
with respect to the Tranche B Commitment Amount shall be equal to .25 %.
"APPLICABLE MARGIN" means (a) with respect to Tranche A Loans, .225%
per annum and (b) with respect to Tranche B Loans, subject to the last sentence
of this definition, for any period, the applicable of the following percentages
in effect with respect to such period as the Debt to EBITDAR Ratio of the
Company shall fall within the indicated ranges:
Debt to EBITDAR Ratio Applicable Margin
> = 2.5 to 1.0 1.50%
> = 2.0 to 1.0 and 1.25
< 2.50 to 1.0
> = 1.0 to 1.0 and 1.00
< 2.0 to 1.0
> = 0.5 to 1.0 and 0.75
< 1.0 to 1.0
< 0.5 to 1.0 0.50
The Debt to EBITDAR Ratio shall be calculated by the Company as of the end
of each fiscal quarter, commencing with the fiscal quarter ended September
30, 1998, and shall be reported to the Administrative Agent pursuant to a
Compliance Certificate executed by a Responsible Officer of the Company and
delivered pursuant to SUBSECTION 6.02(b). The Applicable Margin with
respect to Tranche B Loans shall be adjusted, if necessary, on the third
Business Day after the delivery of such certificate, with such adjustment
to apply to all Interest Periods then outstanding and beginning thereafter
until the next adjustment date; PROVIDED, that if such certificate,
together with the financial statements to which such certificate relates,
is not delivered to the Administrative Agent by the fifth Business Day
after the date on which the related financial statements are due to be
delivered to the Administrative Agent pursuant to SUBSECTION 6.01(a) or
(b), then, from such fifth Business Day until the third Business Day after
delivery of such certificate, the Applicable Margin with respect to Tranche
B Loans shall be equal to 1.50%. From the Closing Date until
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adjusted as described above, the Applicable Margin with respect to Tranche
B Loans shall be equal to 1.0%.
"ARRANGER" means NationsBanc Xxxxxxxxxx Securities LLC, a Delaware
limited liability company.
"ASSIGNEE" has the meaning specified in SUBSECTION 10.08(a).
"ATTORNEY COSTS" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, ET SEQ.).
"BASE RATE" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." (The "reference rate" is a
rate set by BofA based upon various factors including BofA's costs and
desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the reference rate announced
by BofA 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.
"BOFA" means Bank of America National Trust and Savings Association, a
national banking association.
"BORROWING" means a borrowing hereunder consisting of Loans of the
same Type made to the Company on the same day by the Lenders under ARTICLE
II, and in the case of Offshore Rate Loans, having the same Interest
Period.
"BORROWING DATE" means any date on which a Borrowing occurs under
SECTION 2.03.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City, Chicago or San Francisco
are authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means such a day on which dealings
are carried on in the applicable offshore dollar interbank market.
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"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"CAPITAL EXPENDITURES" means, without duplication, any expenditures
for any purchase or other acquisition for value of any asset that is
classified on the consolidated balance sheet of the Company and the
Subsidiaries prepared in accordance with GAAP as a fixed or capital asset
(other than expenditures incurred to effect an Acquisition) excluding (a)
the cost of assets acquired under Capitalized Lease Obligations, (b)
expenditures of insurance proceeds to rebuild or replace any assets after a
casualty loss, and (c) leasehold improvement expenditures for which the
Borrower or a Subsidiary is reimbursed promptly by the lessor.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with
GAAP.
"CASH EQUIVALENTS" means Investments maturing within one year from the
date of investment in (a) certificates of deposit, Eurodollar time
deposits, other interest bearing deposits or accounts and repurchase
agreements with high quality United States commercial banks having a
combined capital and surplus of at least $500,000,000, (b) certificates of
deposit, other interest bearing accounts or deposits and demand deposits
with other United States commercial banks, which deposits and accounts are
in amounts fully insured by the Federal Deposit Insurance Corporation, (c)
obligations issued or unconditionally guaranteed by the United States
government or issued by an agency thereof, (d) direct obligations issued by
any state of the United States or any political subdivision thereof which
have the highest short-term or long-term rating obtainable from Standard &
Poor's Ratings Group or Xxxxx'x Investors Services, Inc. on the date of
investment, (e) commercial paper rated A-1 or better by Standard & Poor
Ratings Group or P-1 or better by Xxxxx'x Investors Services, Inc. or (f)
money market mutual funds investing in investments of the types described
in clauses (a) through (e).
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"CHANGE OF CONTROL" means (a) any acquisition by any Person, or two or
more Persons acting in concert, including without limitation any
acquisition effected by means
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of any transaction contemplated by SECTION 7.03, of beneficial ownership
(within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of
25% or more of the outstanding shares of voting stock of the Company or
(b) during any period of 25 consecutive calendar months, commencing on
the date of this Agreement, the ceasing of those individuals (the
"CONTINUING DIRECTORS") who either (i) were directors of the Company on
the first day of each such period or (ii) subsequently became directors
of the Company and whose actual election or initial nomination for
election subsequent to that date was approved by a majority of the
Continuing Directors then on the board of directors of the Company, to
constitute a majority of the board of directors of the Company.
"CLOSING DATE" means the date on which all conditions precedent set
forth in SECTION 4.01 are satisfied or waived by all Lenders (or, in the
case of SUBSECTION 4.01(e), waived by the Person entitled to receive such
payment).
"CODE" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"COLLATERAL" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Company in or upon which a
Lien now or hereafter exists in favor of the Lenders, or the Administrative
Agent on behalf of the Lenders, whether under this Agreement, the
Collateral Documents or any other documents executed by any such Person and
delivered to the Administrative Agent or the Lenders.
"COLLATERAL ACCOUNTS" means the securities accounts and deposit
accounts maintained by the Company with BofA or other Lenders, which
accounts, the Eligible Securities (if applicable) and amounts therein and
all rights with respect thereto have been pledged for the benefit of the
Administrative Agent and the Lenders pursuant to the Security Agreement.
"COLLATERAL DOCUMENTS" means (a) the Security Agreement, the Control
Agreements and the Subsidiary Guaranty and (b) any amendments, supplements,
modifications, renewals, replacements, consolidations, substitutions and
extensions of any of the foregoing.
"COMMITMENT", as to each Lender, has the meaning specified in SECTION
2.01.
"COMPANY" has the meaning specified in the introductory clause hereto.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT C.
-6-
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of that Person (without duplication), whether or not
contingent, with or without recourse, (a) with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the "PRIMARY
OBLIGATIONS") of another Person (the "PRIMARY OBLIGOR"), including any
obligation of that Person (i) to purchase, repurchase or otherwise acquire
such primary obligations or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any such primary obligation,
or to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item,
level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, or
(iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each, a "GUARANTY OBLIGATION");
(b) with respect to any Surety Instrument issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires that payment for
such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and in the case of other Contingent Obligations shall be equal to
the maximum reasonably anticipated liability in respect thereof.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
"CONTROL AGREEMENT" means an agreement in substantially the form of
EXHIBIT F hereto entered into among the Company, the Administrative Agent
and the Lender establishing the applicable account.
"CONVERSION/CONTINUATION DATE" means any date on which, under SECTION
2.04, the Company (a) converts Loans of one Type to another Type, or
(b) continues as Loans of the same Type, but with a new Interest Period,
Loans having Interest Periods expiring on such date.
-7-
"CURRENT COMMITMENT TERMINATION DATE" has the meaning specified in
SUBSECTION 2.15(a).
"DEBT" means as of the end of any fiscal quarter an amount equal to
the sum of (a) all Indebtedness as of such date and (b) five (5) times
Rental Expenses for the period of four fiscal quarters then ended, in each
case of the Company and its Subsidiaries on a consolidated basis.
"DEBT TO EBITDAR RATIO" means, as of the end of any fiscal quarter,
the ratio of Debt calculated as of such date to EBITDAR for the period of
four fiscal quarters then ended.
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the United
States.
"EBITDAR" means, for any period, for the Company and its Subsidiaries
on a consolidated basis, determined in accordance with GAAP, the sum of (a)
the Net Income (or net loss) for such period, PLUS (b) all amounts treated
as expenses for depreciation and interest and the amortization of
intangibles of any kind to the extent deducted in the determination of such
Net Income (or net loss), PLUS (c) all accrued taxes on or measured by
income to the extent included in the determination of such Net Income (or
net loss), LESS (d) any nonrecurring gains (or PLUS any nonrecurring losses
resulting directly from or incurred directly as a consequence of the sale
or closure of any operating facilities by the Company and its
Subsidiaries), PLUS (e) Rental Expenses for such period.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, PROVIDED that such bank is acting
through a branch or agency located in the United States; (c) a Person that
is primarily engaged in the business of commercial banking and that is
(i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a
Subsidiary; (d) (i) an "accredited investor", as such term is defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended
(other than the Company or an Affiliate of the Company) or (ii) a finance
company, insurance company or other financial institution or fund (whether
a corporation, partnership, trust or other entity) that
-8-
is primarily engaged in the business of making, purchasing or otherwise
investing in commercial loans, which, in any such case, has assets in
excess of $10,000,000; and (e) any other entity approved by the Company
and the Administrative Agent.
"ELIGIBLE SECURITIES" means "Investment Property" (as defined in
Article 9 of the Uniform Commercial Code as now and hereafter in effect in
the State of Illinois or any other applicable jurisdiction to which the
Administrative Agent shall agree) in which a security interest may be
perfected by the execution of a control agreement among the Company, the
Administrative Agent and the Lender with which the applicable Collateral
Account is maintained, consisting exclusively of Investments meeting the
criteria specified in clauses (a) through (e) of the definition of "Cash
Equivalents".
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), investigation, cleanup, removal, remedial or
response costs, restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based upon the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden,
accidental or non-accidental, placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from any
property, whether or not owned by the Company or any Subsidiary or taken as
collateral, or in connection with any operations of the Company or any
Subsidiary.
"ENVIRONMENTAL LAWS" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with
all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and
land use matters; including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
the Clean Air Act, the Federal Water Pollution Control Act of 1972, the
Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act and the Emergency Planning and
Community Right-to-Know Act.
"ENVIRONMENTAL PERMITS" has the meaning specified in SUBSECTION
5.12(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
-9-
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Company 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 Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
substantial cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company 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 Section 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 might reasonably be expected to constitute 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 PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning specified in the
definition of "Offshore Rate".
"EVENT OF DEFAULT" means any of the events or circumstances specified
in SECTION 8.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"EXTENDED TERMINATION DATE" has the meaning specified in
SUBSECTION 2.15(b).
"EXTENSION CONFIRMATION DATE" has the meaning specified in
SUBSECTION 2.15(b).
"EXTENSION CONFIRMATION NOTICE" has the meaning specified in
SUBSECTION 2.15(b).
"EXTENSION REQUEST" has the meaning specified in SUBSECTION 2.15(a).
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
-10-
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by
the Administrative Agent.
"FEE LETTER" has the meaning specified in SUBSECTION 2.09(a).
"FIXED CHARGES" means, with respect to the Company and its
Subsidiaries on a consolidated basis, as of any date of determination, (a)
interest expenses paid or accrued on outstanding Indebtedness for the
period of four fiscal quarters ending on the date of determination, PLUS
(b) principal payments on Indebtedness which are required to be made for
the next succeeding twelve months, PLUS (c) Rental Expenses incurred during
the period of four fiscal quarters ending on the date of determination.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"FURTHER TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to SECTION
3.01.
"GAAP" means generally accepted accounting principles set forth from
time to time 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 agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means (a) any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing and (b) the National Association of Insurance Commissioners.
-11-
"GUARANTORS" means each Subsidiary of the Company from time to time
party to the Subsidiary Guaranty. The initial Guarantors shall be the
domestic Subsidiaries listed on SCHEDULE 5.17.
"GUARANTY OBLIGATION" has the meaning specified in the definition of
"Contingent Obligation."
"HAZARDOUS MATERIALS" means all those substances that are regulated
by, or which form the basis of liability or a standard of conduct under,
any Environmental Law, including any substance identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all Contingent Obligations with respect to Surety Instruments;
(d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to
property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all Capitalized Lease
Obligations; (g) all indebtedness referred to in clauses (a) through (f)
above secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such indebtedness (with the amount of such Indebtedness to be equal to the
lesser of the face amount thereof and the fair market value of the property
made subject to such Lien); and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses
(a) through (g) above. For all purposes of this Agreement, (x) the
Indebtedness of any Person shall include all recourse Indebtedness of any
partnership or joint venture or limited liability company in which such
Person is a general partner or a joint venturer or a member and as to which
such Person is directly liable and (y) the amount of any Indebtedness of
any Person which respect to which the creditor may, by its terms, have only
limited recourse to the assets of the obligor, shall be equal to the lesser
of the face amount thereof and the fair market value of the assets to which
recourse may be obtained.
-12-
"INDEMNIFIED LIABILITIES" has the meaning specified in SECTION 10.05.
"INDEMNIFIED PERSON" has the meaning specified in SECTION 10.05.
"INDEPENDENT AUDITOR" has the meaning specified in SUBSECTION 6.01(a).
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case, undertaken under U.S. Federal,
state or foreign law, including the Bankruptcy Code.
"INTEREST EXPENSE" means, for any period, an amount equal to the
interest expense of the Company and its Subsidiaries on a consolidated
basis during such period, determined in accordance with GAAP.
"INTEREST PAYMENT DATE" means, as to any Offshore Rate Loan, the last
day of each Interest Period applicable to such Loan and, as to any Base
Rate Loan, the last Business Day of each calendar quarter, PROVIDED,
HOWEVER, that if any Interest Period for an Offshore Rate Loan exceeds
three months, the date that falls three months after the beginning of such
Interest Period and three months after each Interest Payment Date
thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be extended to
the following Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the 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
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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 for any Loan shall extend beyond
the Current Commitment Termination Date.
"INVESTMENTS" has the meaning specified in SECTION 7.04.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"JOINT VENTURE" means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal entity)
now or hereafter formed by the Company or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with such
Person.
"LENDER" has the meaning specified in the introductory clause hereto.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office", as the case may be, on SCHEDULE 10.02, or
such other office or offices as such Lender may from time to time notify
the Company and the Administrative Agent.
"LIEN" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capitalized Lease, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the Uniform Commercial
Code or any comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of a lessor
under an operating lease.
"LOAN" means an extension of credit by a Lender to the Company under
ARTICLE II, and may be a Base Rate Loan or an Offshore Rate Loan (each, a
"TYPE" of Loan) and includes each Tranche A Loan and Tranche B Loan.
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"LOAN DOCUMENTS" means this Agreement, any Notes, the Collateral
Documents, the Fee Letter, and all other documents delivered to the
Administrative Agent or any Lender in connection with the transactions
contemplated by this Agreement.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or
financial condition of the Company or the Company and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Company
or any Subsidiary to perform its obligations under any Loan Document and to
avoid any Event of Default; or (c) a material adverse effect upon (i) the
legality, validity, binding effect or enforceability against the Company or
any Subsidiary of any Loan Document, or (ii) the perfection or priority of
any Lien granted under any of the Collateral Documents.
"MAXIMUM LOAN BALANCE" means, as of any date of determination, the
lesser of (a) the sum of (i) the cash and Cash Equivalents held by the
Company and its domestic Subsidiaries as of such date, PLUS (ii) the amount
equal to the lesser of (A) 75% of the aggregate consolidated accounts
receivable of the Company and its Subsidiaries as of such date and (B) 85%
of the aggregate consolidated accounts receivable of the Company and its
domestic Subsidiaries as of such date, and (b) the Aggregate Commitment.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"NET INCOME" means, for any period, the net income of the Company and
its Subsidiaries, on a consolidated basis, determined in accordance with
GAAP.
"NOTE" means a promissory note executed by the Company in favor of a
Lender pursuant to SUBSECTION 2.02(b), in substantially the form of EXHIBIT
E.
"NOTICE OF BORROWING" means a notice in substantially the form of
EXHIBIT A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in substantially
the form of EXHIBIT B.
"OBLIGATIONS" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company
to any Lender,
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the Administrative Agent, or any Indemnified Person, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"OFFSHORE RATE" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined by
the Administrative Agent as follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "EUROCURRENCY LIABILITIES"); and
"IBOR" means the rate of interest per annum determined by the
Administrative Agent as the rate at which dollar deposits in the
approximate amount of BofA's Offshore Rate Loan for such Interest
Period would be offered by BofA's Grand Cayman Branch, Grand Cayman
B.W.I. (or such other office as may be designated for such purpose by
BofA), to major banks in the offshore dollar interbank market at their
request at approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"OFFSHORE RATE LOAN" means a Loan that bears interest based on the
Offshore Rate.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of determination
or instrument relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee thereof) of such
corporation.
-16-
"OTHER TAXES" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"PARTICIPANT" has the meaning specified in SUBSECTION 10.08(e).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA in respect of which the Company or any
ERISA Affiliate has or may have any liability.
"PERMITTED ACQUISITIONS" means Acquisitions that meet all the
following criteria: (a) the Acquisition has been approved by the Board of
Directors (or functional equivalent thereof) of the Person whose stock or
assets are being acquired; (b) the Person or assets being acquired are in
the same or a similar or complementary line of business as the Company; (c)
the Person or assets being acquired had positive net income before net,
non-recurring expenses for the most recently ended 12 calendar months; and
(d) both immediately before and after giving effect to the Acquisition, no
Default or Event of Default exists.
"PERMITTED LIENS" has the meaning specified in SECTION 7.01.
"PERMITTED SWAP OBLIGATIONS" means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under Swap
Contracts, provided that each of the following criteria is satisfied:
(a) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of speculation or
taking a "market view;" (b) such Swap Contracts do not contain any
provision ("walk-away" provision) exonerating the non-defaulting party from
its obligation to make payments on outstanding transactions to the
defaulting party.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
-17-
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) in respect of which the Company or any ERISA Affiliate has or may
have any liability.
"PRINCIPAL BALANCE" means the aggregate outstanding principal balance
of the Loans.
"PRO RATA SHARE" means, as to any Lender at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) (a)
at any time at which the Aggregate Commitments remain outstanding, such
Xxxxxx's Commitment divided by the Aggregate Commitments of all Lenders,
and (b) after the termination of the Aggregate Commitment, the principal
amount of such Lender's outstanding Loans divided by the aggregate
principal amount of the outstanding Loans of all the Lenders.
"RENTAL EXPENSE" means, for any period, the sum of the aggregate
payments of the Company and its Subsidiaries on a consolidated basis under
noncancellable agreements to rent or lease any real or personal property
(exclusive of Capital Lease Obligations and exclusive of agreements to rent
or lease real or personal property which are not cancellable at the option
of the lessee without penalty within a three month period), all as
determined on a consolidated basis for the Company and its Subsidiaries in
accordance with GAAP.
"REPLACEMENT LENDER" has the meaning specified in SECTION 3.08.
"REPORTABLE EVENT" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"REQUIRED LENDERS" means at any time Lenders then holding at least 51%
of the then aggregate unpaid principal amount of the Loans, or, if no
amounts are outstanding, Lenders then having at least 51% of the aggregate
amount of the Commitments.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"RESPONSIBLE OFFICER" means the chief executive officer or the
president of the Company, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of the
Company, or any other officer having substantially the same authority and
responsibility.
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"REVOLVING TERMINATION DATE" means the earlier to occur of:
(a) the Current Commitment Termination Date; and
(b) the date on which the Aggregate Commitment terminates in
accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECURED AMOUNT" means the sum of (a) the aggregate cash balances in
the Collateral Accounts and (b) the aggregate fair market value of the
Eligible Securities held in the Collateral Accounts, as to which, in each
case, the Administrative Agent shall have a first priority perfected
security interest.
"SECURITY AGREEMENT" means that certain Security Agreement dated as of
the date hereof between the Company and the Administrative Agent with
respect to the various Collateral Accounts.
"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 101(31) of the Bankruptcy Code and, in the alternative,
for purposes of the Illinois 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; PROVIDED, that in
each case, the liabilities of any Subsidiary shall be determined without
regard to the Indebtedness of such Subsidiary owing to the Company or any
Wholly-Owned Subsidiary.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests 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
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otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"SUBSIDIARY GUARANTY" means that certain Subsidiary Guaranty dated as
of the date hereof by each domestic Subsidiary in favor of the
Administrative Agent and the Lenders.
"SURETY INSTRUMENTS" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"SWAP CONTRACT" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"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 mark-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Lender).
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, respectively, taxes imposed on
or measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized or maintains a
lending office.
"TRANCHE A COMMITMENT AMOUNT" means, at any time, the amount of the
Tranche A Loan Limit at such time.
"TRANCHE A LOAN LIMIT" means $15,000,000, as such limit may be
adjusted up to $30,000,000 from time to time in accordance with SUBSECTION
2.01(b).
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"TRANCHE A LOANS" means, subject to SUBSECTION 2.01(c) OR (e), all
Loans that are not Tranche B Loans.
"TRANCHE B COMMITMENT AMOUNT" means, at any time (a) the Aggregate
Commitment at such time MINUS (b) the Tranche A Loan Limit at such time.
"TRANCHE B LOANS" means, subject to SUBSECTION 2.01(c) OR (e), (a) all
Loans made at a time when the Principal Balance (before giving effect to
such Loans) exceeds the Tranche A Loan Limit and (b) all Loans made at a
time when, before giving effect to such Loans, the Principal Balance is
less than or equal to the Tranche A Loan Limit, but after giving effect to
such Loans, the Principal Balance exceeds the Tranche A Loan Limit, but
only to the extent of the amount by which, after giving effect to such
Loans, the Principal Balance exceeds the Tranche A Loan Limit.
"TYPE" has the meaning specified in the definition of "Loan".
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that 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." each means the United States of America.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which (other than
directors' qualifying shares required by law) 100% of the capital stock of
each class having ordinary voting power, and, except with respect to EDM
Electronic Direct Marketing Ltd. (which shall be deemed to be a
Wholly-Owned Subsidiary), 100% of the capital stock of every other class,
in each case (or, in the case of Persons other than corporations,
membership interests or other equity interests), at the time as of which
any determination is being made, is owned, beneficially and of record, by
the Company, or by one or more of the other Wholly-Owned Subsidiaries,
or both.
1.02 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
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(ii) The term "including" is not limiting and means "including
without limitation".
(iii) 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".
(iv) The term "property" includes any kind of property or
asset, real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments, supplements and other modifications
thereto, but only to the extent such amendments and other modifications are in
writing and not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as including
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. This Agreement and each of the other
Loan Documents shall be construed, to the extent reasonable, to be consistent
one with the other; PROVIDED, that to the extent that the terms and conditions
of this Agreement are actually inconsistent with the terms and conditions of any
other Loan Document, this Agreement shall govern. Unless otherwise expressly
provided, any reference to any action of the Administrative Agent or the Lenders
by way of consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole reasonable discretion".
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Xxxxxxx'
involvement in their preparation.
1.03 ACCOUNTING PRINCIPLES. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
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(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
(c) In the event that any changes in GAAP occur after the date of
this Agreement and such changes result in a material variation in the method of
calculation of financial covenants or other terms of this Agreement, then the
Company, the Administrative Agent and the Lenders agree to amend such provisions
of this Agreement so as to equitably reflect such changes so that the criteria
for evaluating the Company's financial condition will be substantially the same
after such changes as if such changes had not occurred.
ARTICLE II
THE CREDITS
2.01 AMOUNTS AND TERMS OF COMMITMENTS; TRANCHE MODIFICATIONS. (a) Each
Lender severally agrees, on the terms and conditions set forth herein, to make
Loans to the Company from time to time on any Business Day during the period
from the Closing Date to the Revolving Termination Date, in an aggregate amount
not to exceed at any time outstanding the lesser of (i) the amount set forth
next to its name on SCHEDULE 2.01 (such amount shall be, as the same may be
reduced under SECTION 2.05 or as a result of one or more assignments under
SECTION 10.08, the Lender's "COMMITMENT") and (ii) its Pro Rata Share of the
Aggregate Commitment; PROVIDED, HOWEVER, that, after giving effect to any
Borrowing, the aggregate principal amount of all outstanding Loans, shall not at
any time exceed the Maximum Loan Balance. Within the limits of each Xxxxxx's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this Section, prepay under SECTION 2.06 and reborrow under this
Section.
(b) Not more than once each fiscal quarter the Company may, upon 10
Business Days' prior written notice to the Administrative Agent elect, as of any
Business Day, to increase or decrease the Tranche A Loan Limit by an amount of
not less than $500,000 or any integral multiple of $100,000 in excess thereof;
PROVIDED, HOWEVER, that (i) the Tranche A Loan Limit may not exceed the lesser
of (A) $30,000,000 and (B) the Aggregate Commitment; (ii) the Tranche A Loan
Limit may not be increased to an amount in excess of the Secured Amount; and
(iii) the Tranche A Loan Limit may not be decreased during the continuance of
any Default or Event of Default. The Administrative Agent will promptly notify
each Lender of its receipt of a notice from the Company pursuant to this
subsection and the effective date of any changes in the Tranche A Loan Limit.
(c) Loans shall be made as Tranche A Loans until the Principal
Balance equals the Tranche A Loan Limit, after which all Loans shall be made as
Tranche B Loans. Upon any increase in the Tranche A Loan Limit, Tranche B Loans
shall be automatically converted to Tranche A Loans in an aggregate principal
amount equal to the lesser of (i) the aggregate
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outstanding Principal Balance of the Tranche B Loans and (ii) the new Tranche
A Loan Limit MINUS the old Tranche A Loan Limit. Such conversion shall be
made on a pro rata (relative to Commitment amount) basis among the Lenders.
(d) If at any time the outstanding principal amount of the Loans
exceeds the Maximum Loan Balance, the Company shall immediately repay such Loans
in an amount sufficient to eliminate any such excess.
(e) If at any time the outstanding principal amount of the Tranche A
Loans exceeds the lesser of the Secured Amount and the Tranche A Loan Limit,
then the Company shall immediately repay such Loans in an amount sufficient to
eliminate any such excess; PROVIDED, HOWEVER, that if no Default or Event of
Default shall then have occurred and is continuing and SECTION 2.01(d) is not
applicable, Tranche A Loans in a principal amount equal to such excess shall be
automatically converted to Tranche B Loans to the extent of the amount of the
then unutilized Tranche B Commitment.
2.02 LOAN ACCOUNTS. (a) The Loans made by each Lender shall be evidenced
by one or more loan accounts or records maintained by such Xxxxxx in the
ordinary course of business. The loan accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to the Company and the interest
and payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Company hereunder
to pay any amount owing with respect to the Loans.
(b) Upon the request of any Xxxxxx made through the Administrative
Agent, the Loans made by such Lender may be evidenced by one or more Notes,
instead of or in addition to loan accounts. Each such Lender shall endorse on
the schedules annexed to its Note(s) the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the Company to
endorse its Note(s) and each Lender's record shall be conclusive absent manifest
error; PROVIDED, HOWEVER, that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any such Note to such
Lender.
2.03 PROCEDURE FOR BORROWING. (a) Each Borrowing shall be made upon the
Company's irrevocable notice delivered to the Administrative Agent in the form
of a Notice of Borrowing (which notice must be received by the Administrative
Agent prior to 10:00 a.m. (Chicago time) (i) two (2) Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans; and (ii) on the
requested Borrowing Date, in the case of Base Rate Loans, specifying:
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(A) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $500,000 or any multiple of $100,000 in
excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing;
(D) with respect to Offshore Rate Loans, the duration of
the Interest Period applicable to such Loans included in such notice.
If the Notice of Borrowing fails to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate Loans,
such Interest Period shall be three months; and
(E) the amount of the requested Loans comprising Tranche
A Loans and Tranche B Loans, respectively;
PROVIDED, HOWEVER, that with respect to the Borrowing to be made on the Closing
Date, such Borrowing will consist of Base Rate Loans only; and further provided
that if the Administrative Agent has determined in its sole discretion that
syndication of the Loans has not been completed, then all Borrowings during the
first 60 days following the Closing Date shall have the same Interest Period and
shall be Base Rate Loans or Offshore Rate Loans for Interest Periods no longer
than one month.
(b) The Administrative Agent will promptly notify each Lender of its
receipt of any Notice of Borrowing and of the amount of such Xxxxxx's Pro Rata
Share of that Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Administrative Agent's Payment Office by 1:00 p.m. (Chicago time) on the
Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. The proceeds of all such Loans will then be made
available to the Company by the Administrative Agent at such office by crediting
the account of the Company on the books of BofA with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent or by wire transfer in accordance
with the directions of the Company.
(d) After giving effect to any Borrowing, unless the Administrative
Agent shall otherwise consent, there may not be more than six (6) different
Interest Periods in effect.
(e) The Company hereby authorizes the Lenders and the Administrative
Agent to accept Notices of Borrowing based on telephonic notices made by any
person or persons the Administrative Agent or any Xxxxxx believes to be acting
on behalf of the Company. The
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Company agrees to deliver promptly to the Administrative Agent a written
confirmation of each telephonic notice, signed by a Responsible Officer or an
authorized designee. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders,
the records of the Administrative Agent and the Lenders shall govern absent
manifest error.
2.04 CONVERSION AND CONTINUATION ELECTIONS. (a) The Company may, upon
irrevocable notice to the Administrative Agent in accordance with SUBSECTION
2.04(b):
(i) elect, as of any Business Day, in the case of Base
Rate Loans, or as of the last day of the applicable Interest Period, in the
case of any other Type of Loans, to convert any such Loans (or any part
thereof in an amount not less than $500,000, or that is in an integral
multiple of $100,000 in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less than $500,000, or that
is in an integral multiple of $100,000 in excess thereof);
PROVIDED, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $500,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into Offshore
Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Administrative Agent not later than 10:00 a.m. (Chicago time)
(i) at least two (2) Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as Offshore Rate Loans;
and (ii) on the Conversion/Continuation Date, if the Loans are to be converted
into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
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(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, or if any Default or Event
of Default then exists, the Company shall be deemed to have elected to convert
such Offshore Rate Loans into Base Rate Loans effective as of the expiration
date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Lender.
(e) Unless the Required Lenders otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Loans,
unless the Administrative Agent shall otherwise consent, there may not be more
than six (6) different Interest Periods in effect.
(g) The Company hereby authorizes the Lenders and the Administrative
Agent to accept Notices of Conversion/Continuation based on telephonic notices
made by any person or persons the Administrative Agent or any Xxxxxx believes to
be acting on behalf of the Company. The Company agrees to deliver promptly to
the Administrative Agent a written confirmation of each telephonic notice,
signed by a Responsible Officer. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
2.05 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Company may,
upon not less than five (5) Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof; UNLESS, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, the then-outstanding principal amount of the
Loans would exceed the amount of the Aggregate Commitment then in effect. Once
reduced in accordance with this Section, the Commitments may not be increased.
Any reduction of the Commitments shall be applied to each Lender according to
its Pro Rata Share. All accrued commitment fees to, but not including the
effective date of any reduction or termination of Commitments, shall be paid on
the effective date of such reduction or termination.
2.06 OPTIONAL PREPAYMENTS. Subject to SECTION 3.04, the Company may, at
any time or from time to time, upon not less than one (1) Business Day's
irrevocable notice to the
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Administrative Agent for Base Rate Loans and not less than three (3) Business
Days' irrevocable notice to the Administrative Agent for Offshore Rate Loans,
ratably prepay Loans in whole or in part, in minimum amounts of $500,000 or
any multiple of $100,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of any such notice, and of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein, together, in the case of Offshore
Rate Loans, with accrued interest to each such date on the amount prepaid and
any amounts required pursuant to SECTION 3.04. All prepayments (other than
payments out of proceeds of the Collateral) shall be applied first to reduce
the Tranche B Loans and thereafter to reduce the Tranche A Loans.
2.07 REPAYMENT. The Company shall repay to the Lenders on the Revolving
Termination Date the aggregate principal amount of Loans outstanding on such
date.
2.08 INTEREST. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to (i) the Base Rate or (ii) the Offshore Rate PLUS the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest on Base Rate Loans shall also be paid on the date of any
payment (including prepayment) in full thereof. Interest on Offshore Rate Loans
shall also be paid on the date of any prepayment of Offshore Rate Loans under
SECTION 2.01(D) or 2.06 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof. During the existence of any Event of
Default, interest on all Loans shall be paid on demand of the Administrative
Agent at the request or with the consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section, while any Event
of Default exists or after acceleration, the Company shall pay interest (after
as well as before any entry of judgment thereon to the extent permitted by law)
on the principal amount of all outstanding Loans, at a fluctuating rate per
annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event the Company shall pay such Lender interest at the highest rate permitted
by applicable law.
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2.09 FEES. (a) ARRANGEMENT, AGENCY FEES. The Company shall pay such
fees to the Administrative Agent and the Arranger as are required by the letter
agreement ("FEE LETTER") among the Company, the Arranger and the Administrative
Agent dated August 7, 1998.
(b) COMMITMENT FEES. The Company shall pay to the Administrative
Agent for the account of each Lender a commitment fee on the average daily
unused portion of such Xxxxxx's Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon the daily
utilization and mix of the Tranche A Loans and Tranche B Loans for that quarter
as calculated by the Administrative Agent, equal to the Applicable Commitment
Fee Percentage per annum. Such commitment fees shall accrue from the Closing
Date to the Revolving Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on the
Closing Date through the Revolving Termination Date, with the final payment to
be made on the Revolving Termination Date; PROVIDED that, in connection with any
reduction or termination of Commitments under SECTION 2.05, the accrued
commitment fee calculated for the period ending on such date shall also be paid
on the date of such reduction or termination, with the following quarterly
payment being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The commitment fees provided
in this subsection shall accrue at all times during the period described above,
including at any time during which one or more conditions in ARTICLE IV are not
met.
2.10 COMPUTATION OF FEES AND INTEREST. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by BofA's "reference 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
interest being paid than if computed on the basis of a 365-day year). Interest
and fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Lenders in the
absence of manifest error.
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2.11 PAYMENTS BY THE COMPANY. (a) All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 12:00 noon (Chicago time) on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Pro Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Administrative
Agent later than 2:00 p.m. (Chicago time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Company
prior to the date on which any payment is due to the Lenders that the Company
will not make such payment in full as and when required, the Administrative
Agent may assume that the Company has made such payment in full to the
Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
(d) All payments received by the Administrative Agent in respect of
the Loans shall be applied first to Tranche B Loans and then to Tranche A Loans,
other than (i) payments from the proceeds of Collateral (which shall be applied
first to Tranche A Loans to the extent thereof), (ii) payments of principal in
respect of Tranche A Loans required pursuant to SECTION 2.01(d) and (iii)
payments to be applied to the payment of interest in respect of Offshore Rate
Loans due on the date of receipt in accordance with SUBSECTION 2.08(b).
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2.12 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT. (a) Unless the
Administrative Agent receives notice from a Lender on or prior to the Closing
Date or, with respect to any Borrowing after the Closing Date, at least one
Business Day prior to the date of such Borrowing, that such Lender will not make
available as and when required hereunder to the Administrative Agent for the
account of the Company the amount of that Xxxxxx's Pro Rata Share of the
Borrowing, the Administrative Agent may assume that each Lender has made such
amount available to the Administrative Agent in immediately available funds on
the Borrowing Date and the Administrative Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Company on
such date a corresponding amount. If and to the extent any Lender shall not
have made its full amount available to the Administrative Agent in immediately
available funds and the Administrative Agent in such circumstances has made
available to the Company such amount, that Lender shall on the Business Day
following such Borrowing Date make such amount available to the Administrative
Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of the Administrative Agent submitted to any Lender with
respect to amounts owing under this subsection (a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the
Administrative Agent shall constitute such Xxxxxx's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Administrative Agent on the Business Day following the
Borrowing Date, the Administrative Agent will notify the Company of such failure
to fund and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a Loan on
such Borrowing Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on any Borrowing
Date.
2.13 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment 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, 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
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by the purchasing Lender in respect of the total amount so recovered. The
Company 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 10.10)
with respect to such participation as fully as if such Lender were the direct
creditor of the Company 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.
2.14 SECURITY AND GUARANTY. The cash and the Eligible Securities held in
the Collateral Accounts from time to time shall secure the repayment of the
Tranche A Loans in accordance with the Security Agreement and the Control
Agreements. The Company shall provide that the Tranche A Loan Limit shall at no
time exceed the Secured Amount.
(b) All Obligations of the Company under this Agreement, each of the Notes
and all other Documents shall be unconditionally guaranteed by the Guarantors
pursuant to the Guaranty.
2.15 EXTENSIONS OF THE COMMITMENTS.
(a) "CURRENT COMMITMENT TERMINATION DATE" shall initially mean
November 20, 2001. On any Business Day that is not less than 60 days nor more
than 90 days prior to an anniversary of the Closing Date, the Company may, by
written notice (an "EXTENSION REQUEST") given to the Administrative Agent,
request that the Current Commitment Termination Date be extended. Each such
Extension Request shall contemplate an extension of the Current Commitment
Termination Date to a date that is one year after the Current Commitment
Termination Date then in effect. Notwithstanding anything to the contrary in
this SECTION 2.15, the Company may only request two (2) additional Extension
Requests during the term of this Agreement.
(b) The Administrative Agent shall promptly advise each Lender of its
receipt of any Extension Request. Each Lender may, in its sole discretion,
consent to a requested extension by giving written notice thereof to the
Administrative Agent by not later than the Business Day (the "EXTENSION
CONFIRMATION DATE") immediately preceding the date that is 31 days after the
date of the Extension Request. Failure on the part of any Lender to respond to
an Extension Request by the applicable Extension Confirmation Date shall be
deemed to be a denial of such request by such Lender. If all Lenders shall
consent in writing to the requested extension, such request shall be granted.
Promptly following the opening of business on the first Business Day following
the applicable Extension Confirmation Date, the Administrative Agent shall
notify the Company in writing as to whether the Extension Request has been
granted (such written notice being an "EXTENSION CONFIRMATION NOTICE") and, if
granted, such extension shall be confirmed upon the issuance of such Extension
Confirmation Notice. The Administrative Agent shall promptly
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thereafter provide a copy of such Extension Confirmation Notice to each
Lender. Each Extension Confirmation Notice shall specify therein the date to
which the Current Commitment Termination Date is to be extended (such date
being referred to herein as the "EXTENDED TERMINATION DATE"), which shall be
the date one year following the Current Commitment Termination Date then in
effect.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES. (a) Any and all payments by the Company to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder or under any other Loan Document to any Lender or the Administrative
Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or the Administrative Agent, as the case may be,
receives and retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Company shall also pay to each Lender or the
Administrative Agent for the account of such Lender, at the time interest
is paid, Further Taxes in the amount that the respective Lender specifies
as necessary to preserve the after-tax yield the Lender would have received
if such Taxes, Other Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each Lender,
the Administrative Agent and the Arranger and each of their affiliates for the
full amount of (i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in the
amount that the respective Lender, in good faith, specifies as necessary to
preserve the after-tax yield the Lender, Administrative Agent or Arranger
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would have received if such Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the
date the Lender, the Administrative Agent or Arranger makes written demand
therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes, the Company shall furnish to each Lender or
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment reasonably satisfactory
to such Lender or the Administrative Agent.
(e) If the Company is required to pay any amount to any Lender or the
Administrative Agent pursuant to subsection (b) or (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the sole reasonable judgment of such Lender is not
otherwise disadvantageous to such Lender.
3.02 ILLEGALITY. (a) If any Lender reasonably determines that the
introduction of any Requirement of Law, or any change in any Requirement of Law,
or in the interpretation or administration of any Requirement of Law, has made
it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office to
make Offshore Rate Loans, then, on notice thereof by the Lender to the Company
through the Administrative Agent, any obligation of that Lender to make Offshore
Rate Loans shall be suspended until the Lender notifies the Administrative Agent
and the Company that the circumstances giving rise to such determination no
longer exist.
(b) If a Lender determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Lender (with a copy to the Administrative Agent), prepay in
full such Offshore Rate Loans of that Lender then outstanding, together with
interest accrued thereon and amounts required under SECTION 3.04, either on the
last day of the Interest Period thereof, if the Lender may lawfully continue to
maintain such Offshore Rate Loans to such day, or immediately, if the Lender may
not lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain Offshore Rate
Loans has been so terminated or suspended, the Company may elect, by giving
notice to the Lender through the Administrative Agent that all Loans which would
otherwise be made by the Lender as Offshore Rate Loans shall be instead Base
Rate Loans.
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(d) Before giving any notice to the Administrative Agent under this
Section, the affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the reasonable
judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.
3.03 INCREASED COSTS AND REDUCTION OF RETURN. (a) If any Lender
reasonably determines that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) the compliance by that Lender
with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining
any Offshore Rate Loans, then the Company shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have reasonably determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or
(iv) compliance by the Lender (or its Lending Office) or any corporation
controlling the Lender with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by the Lender
or any corporation controlling the Lender and (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy and
such Xxxxxx's desired return on capital) determines, in good faith, that the
amount of such capital is increased as a consequence of its Commitment, loans,
credits or obligations under this Agreement, then, upon demand of such Lender to
the Company through the Administrative Agent, the Company shall pay to the
Lender, from time to time as specified by the Lender, additional amounts
sufficient to compensate the Lender for such increase.
3.04 FUNDING LOSSES. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation;
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(c) the failure of the Company to make any prepayment in accordance
with any notice delivered under SECTION 2.06;
(d) the prepayment (including pursuant to SECTION 2.01(d), 2.05 or
2.06) or other payment (including after acceleration thereof) of an Offshore
Rate Loan on a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under SECTION 2.04 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under SUBSECTION 3.03(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the IBOR used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the offshore
dollar interbank market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
3.05 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines, in good faith, that for any reason adequate and reasonable means do
not exist for determining the Offshore Rate for any requested Interest Period
with respect to a proposed Offshore Rate Loan, or that the Offshore Rate
applicable pursuant to SUBSECTION 2.08(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to the Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Offshore Rate Loans hereunder shall be suspended
until the Administrative Agent revokes such notice in writing. Upon receipt of
such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Lenders shall make, convert or continue the Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans, as the case may be.
3.06 RESERVES ON OFFSHORE RATE LOANS. The Company shall pay to each
Lender, as long as such Lender shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "EUROCURRENCY
LIABILITIES"), additional costs on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Lender (as determined by the Lender in good faith, which determination shall
be conclusive absent manifest
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error), payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 15 days' prior written
notice (with a copy to the Administrative Agent) of such additional interest
from the Lender. If a Lender fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from the Company's receipt of such notice.
3.07 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE III shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to the Lender hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error.
3.08 SUBSTITUTION OF LENDERS. Upon the receipt by the Company from any
Lender (an "AFFECTED LENDER") of a claim for compensation under SECTION 3.01 OR
3.03 or a notice under SECTION 3.02, the Company may: (a) obtain a replacement
bank or financial institution reasonably satisfactory to the Company and to the
Administrative Agent to acquire and assume all or a ratable part of all of such
Affected Lender's Loans and Commitment at the face amount thereof (a
"REPLACEMENT LENDER"), or (b) request one or more of the other Lenders to
acquire and assume all or part of such Affected Lender's Loans and Commitment.
Any assignment and assumption pursuant to this Section shall be consummated in
compliance with SECTION 10.08 and shall be subject to the prior written consent
of the Administrative Agent (which consent shall not be unreasonably delayed or
withheld).
3.09 SURVIVAL. The agreements and obligations of the Company in this
ARTICLE III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 CONDITIONS OF INITIAL LOANS. The obligation of each Lender to make
its initial Loan hereunder is subject to the condition that the Administrative
Agent shall have received on or before the Closing Date all of the following, in
form and substance satisfactory to the Administrative Agent and each Lender, and
in sufficient copies for each Lender:
(a) CREDIT AGREEMENT AND NOTES. This Agreement and any Notes
requested pursuant to SECTION 2.02 executed by each party thereto;
(b) RESOLUTIONS; INCUMBENCY.
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(i) Copies of the resolutions of the board of directors of
the Company and each Subsidiary party to a Loan Document authorizing the
transactions contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Company, and each Subsidiary party to a Loan Document certifying the
names and true signatures of the officers of the Company or such Subsidiary
authorized to execute, deliver and perform, as applicable, this Agreement,
and all other Loan Documents to be delivered by it hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the following
documents:
(i) the articles or certificate of incorporation and the
bylaws of the Company and each Subsidiary party to any Loan Document as in
effect on the Closing Date, certified by the Secretary or Assistant
Secretary of the Company or such Subsidiary as of the Closing Date; and
(ii) a good standing certificate for the Company and each
Subsidiary party to any Loan Document from the Secretary of State (or
similar, applicable Governmental Authority) of its state of incorporation
and each state where the Company or such Subsidiary is qualified to do
business as a foreign corporation as of a recent date;
(d) LEGAL OPINIONS. An opinion of Xxxx, Xxxxxx & Xxxxxxxxx, counsel
to the Company and addressed to the Administrative Agent and the Lenders, in
form and substance satisfactory to the Administrative Agent;
(e) PAYMENT OF FEES. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses payable by the Company pursuant to
Sections 2.09 and 10.04 to the extent then due and payable on the Closing Date,
together with Attorney Costs of BofA to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs as shall constitute
BofA's reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and BofA);
(f) COLLATERAL DOCUMENTS. The Collateral Documents, executed by the
Company and its Subsidiaries, together with evidence that all other actions
necessary or, in the opinion of the Administrative Agent or the Lenders,
desirable to perfect and protect the first priority Lien created by the
Collateral Documents, and to enhance the Administrative Agent's ability to
preserve and protect its interests in and access to the Collateral, have been
taken;
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(g) CERTIFICATE. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
ARTICLE V are true and correct on and as of such date, as though made on
and as of such date;
(ii) no Default or Event of Default exists or would
result from the initial Borrowing; and
(iii) there has occurred since December 31, 1997 no
event or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(h) YEAR 2000. The Company shall have delivered to the
Administrative Agent such information with respect to year 2000 issues as the
Administrative Agent may have reasonably requested; and
(i) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.
4.02 CONDITIONS TO ALL BORROWINGS. The obligation of each Lender to make
any Loan to be made by it (including its initial Loan) or to continue or convert
any Loan under SECTION 2.04 is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Conversion/Continuation
Date:
(a) NOTICE OF BORROWING OR CONVERSION/CONTINUATION. The
Administrative Agent shall have received (with, in the case of the initial Loan
only, a copy for each Lender) a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE V shall be true and correct in all
material respects on and as of such Borrowing Date or Conversion/Continuation
Date with the same effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date);
(c) NO EXISTING DEFAULT. No Default or Event of Default shall exist
or shall result from such Borrowing or continuation or conversion;
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(d) MAXIMUM LOAN BALANCE. The outstanding principal amount of the
Loans, after giving effect to such Borrowing, conversion or continuation shall
not exceed the Maximum Loan Balance; and
(e) NO FUTURE ADVANCE NOTICE. Neither the Administrative Agent nor
any Lender shall have received from the Company any notice that the Security
Agreement will no longer secure on a first priority basis Tranche A Loans made
or to be made under this Agreement.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by the
Company hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date, as applicable, that the conditions in this SECTION
4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and each
Lender that:
5.01 CORPORATE EXISTENCE AND POWER. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the corporate power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, to carry on
its business and to execute, deliver, and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (c) or clause (d) of this SECTION
5.01, to the extent that the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by the Company and its Subsidiaries of this Agreement and each
other Loan Document to which
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such Person is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of the Company's or any Subsidiary's
Organization Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which the Company or any Subsidiary is a party or any order, injunction, writ
or decree of any Governmental Authority to which the Company or any Subsidiary
or any of such Person's property is subject; or
(c) violate any Requirement of Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required by or in respect of the Company
or any Subsidiary in connection with the execution, delivery or performance by,
or enforcement against, the Company or any of its Subsidiaries of the Agreement
or any other Loan Document.
5.04 BINDING EFFECT. This Agreement and each other Loan Document to which
the Company or any of its Subsidiaries is a party constitute the legal, valid
and binding obligations of the Company and any of its Subsidiaries to the extent
it is a party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, or its Subsidiaries or any of their respective
properties:
(a) which purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or
(b) as to which (either individually or in the aggregate) there
exists a substantial likelihood of an adverse determination, which determination
could reasonably be expected to have a Material Adverse Effect. No injunction,
writ, temporary restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan Document,
or directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
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5.06 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Company or from the grant or
perfection of the Liens of the Administrative Agent and the Lenders on the
Collateral. As of the Closing Date (after giving effect to the incurring of any
Obligations by the Company and the grant or perfection of the Liens of the
Administrative Agent and the Lenders on the Collateral), neither the Company nor
any Subsidiary is in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Closing Date, create an Event of Default under
SUBSECTION 8.01(e).
5.07 ERISA COMPLIANCE. Except as specifically disclosed in SCHEDULE 5.07:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such qualification.
The Company and each ERISA Affiliate has made all required contributions to any
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 Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which 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) the Pension Plans do not have aggregate Unfunded Pension Liabilities
in excess of $1,000,000; (iii) neither the Company 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 Company 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 Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
5.08 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by SECTION 6.12
and SECTION 7.07. Neither the
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Company nor any Subsidiary is generally engaged in the business of purchasing
or selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
5.09 TITLE TO PROPERTIES. The Company and each Subsidiary have good title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of their respective businesses, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.10 TAXES. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
5.11 FINANCIAL CONDITION. (a) Each of (i) the audited consolidated
financial statements of the Company and its Subsidiaries as of December 31,
1997, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal year ended on that date and
(ii) the unaudited consolidated financial statements of the Company and its
Subsidiaries as of June 30, 1998 and the related consolidated statements of
income, shareholders' equity and cash flows for the period ended on that date:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise
expressly noted therein;
(ii) fairly present the financial condition of the
Company and its Subsidiaries as of the date thereof and results of
operations for the period covered thereby; and
(iii) except as specifically disclosed in SCHEDULE 5.11,
show in accordance with GAAP all material indebtedness and other
liabilities, direct or contingent, of the Company and its consolidated
Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(b) Since December 31, 1997 there has been no Material Adverse
Effect.
5.12 ENVIRONMENTAL MATTERS. (a) Except as specifically disclosed in
SCHEDULE 5.12, the on-going operations of the Company and each of its
Subsidiaries comply in all respects with all
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Environmental Laws, except such noncompliance which would not (if enforced in
accordance with applicable law) result in liability in excess of $1,000,000
in the aggregate.
(b) Except as specifically disclosed in SCHEDULE 5.12, the Company
and each of its Subsidiaries have obtained all licenses, permits, authorizations
and registrations required under any Environmental Law and necessary for their
respective ordinary course operations ("ENVIRONMENTAL PERMITS"), all such
Environmental Permits are in good standing, and the Company and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in SCHEDULE 5.12, none of the
Company, any of its Subsidiaries or any of their respective present property or
operations, is subject to any outstanding written order from or agreement with
any Governmental Authority, nor subject to (i) any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental Claim
or Hazardous Material or (ii) any claim, proceeding or written notice from any
Person regarding any Environmental Law, Environmental Claim or Hazardous
Material.
(d) Except as specifically disclosed in SCHEDULE 5.12, there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any property of the Company or any Subsidiary, or arising from operations
prior to the Closing Date, of the Company or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims with a potential
liability of the Company and its Subsidiaries in excess of $5,000,000 in the
aggregate for all such conditions, circumstances and properties. In addition,
to the Company's knowledge, (i) neither the Company nor any Subsidiary has any
underground storage tanks (x) that are not properly registered or permitted
under applicable Environmental Laws, or (y) that are leaking or disposing of
Hazardous Materials off-site, which in any such case could reasonably be
expected to have a Material Adverse Effect, and (ii) the Company and its
Subsidiaries have met all material notification requirements under Title III of
CERCLA and all other Environmental Laws.
5.13 COLLATERAL DOCUMENTS. (a) The provisions of each of the Collateral
Documents are effective to create in favor of the Administrative Agent for the
benefit of the Lenders, a legal, valid and enforceable and, assuming that the
secured party has taken all necessary action required by it, first priority
security interest in all right, title and interest of the Company and its
Subsidiaries in the collateral described therein.
(b) All representations and warranties of the Company and any of its
Subsidiaries party thereto contained in the Collateral Documents are true and
correct in all material respects.
5.14 REGULATED ENTITIES. None of the Company, any Person controlling the
Company, or any Subsidiary, is an "Investment Company" within the meaning of the
Investment Company Act
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of 1940. The Company is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, any state public utilities code, or any other Federal or state statute
or regulation limiting its ability to incur Indebtedness.
5.15 NO BURDENSOME RESTRICTIONS. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect, other than any
Material Adverse Effect arising as a result of any reduction in billable
services provided by the Company or any Subsidiary or any termination of any
customer service agreement (in either case, by parties other than the Company
and its Subsidiaries) pursuant to any provision included in the Contractual
Obligations.
5.16 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without infringing upon or
violating the legal rights of any other Person. To the best knowledge of the
Company, no material slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to
be employed, by the Company or any Subsidiary infringes upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the Company's knowledge, threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation, standard
or code is pending or, to the knowledge of the Company, proposed, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
5.17 SUBSIDIARIES. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of SCHEDULE
5.17 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of SCHEDULE 5.17.
5.18 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
5.19 SOLVENCY. The Company and each of its Subsidiaries are Solvent.
5.20 SWAP OBLIGATIONS. Neither the Company nor any of its Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated
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with such matters and has not relied on any swap counterparty or any
Affiliate of any swap counterparty in determining whether to enter into any
Swap Contract.
5.21 YEAR 2000 COMPLIANCE. As of the Closing Date, the Company and its
Subsidiaries are conducting a comprehensive review and assessment of their
computer applications and have made inquiry of their material suppliers, vendors
and customers with respect to the year 2000 problem (that is, the risk that
computer applications may not be able to properly perform date sensitive
functions after December 31, 1999). The Company believes any year 2000 problem
resident in its computer system could not reasonably be expected to have a
Material Adverse Effect.
5.22 FULL DISCLOSURE. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on
behalf of the Company to the Lenders prior to the Closing Date), contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required Lenders
waive compliance in writing:
6.01 FINANCIAL STATEMENTS AND OTHER REPORTS. The Company shall deliver to
the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent, with sufficient copies for each Lender:
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(a) as soon as available, but not later than the earlier of (i) five
(5) days after the filing thereof with the SEC and (ii) 90 days after the end of
each fiscal year (commencing with the fiscal year ended December 31, 1998), a
copy of the audited consolidated balance sheet of the Company 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 Xxxxxx Xxxxxxxx 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 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 Company's or any Subsidiary's
records; and
(b) as soon as available, but not later than the earlier of (i) five
(5) days after the filing thereof with the SEC and (ii) 45 days after the end of
each of the first three fiscal quarters of each fiscal year (commencing with the
fiscal quarter ended September 30, 1998), a copy of the unaudited consolidated
balance sheet of the Company 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, 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 (subject to ordinary, good faith year-end
audit adjustments), the financial position and the results of operations of the
Company and the Subsidiaries.
6.02 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in SUBSECTION 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 SUBSECTIONS 6.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer, which shall include a statement of the Maximum Loan
Balance as of the last day of the applicable period;
(c) concurrently with the delivery of the financial statements
referred to in SUBSECTION 6.01(a), (i) a consolidating income statement for such
year (which need not be audited), and (ii) a budget for the next succeeding
fiscal year;
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(d) concurrently with the delivery of the financial statements
referred to in SUBSECTION 6.01(b), a consolidating income statement for such
quarter;
(e) promptly, copies of all financial statements and reports that the
Company sends to its shareholders and within five (5) days of filing with the
SEC, copies of all financial statements and regular, periodic or special reports
(including Forms 10K, 10Q and 8K) that the Company or any Subsidiary may make
to, or file with, the SEC;
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request;
(g) promptly, upon the request of the Administrative Agent, a
computation of the Maximum Loan Balance; and
(h) within ten (10) Business Days after the end of each month and at
any other time, as soon as practicable after requested by the Administrative
Agent, a current listing of the Collateral Accounts (including a list of the
Eligible Securities deposited therein) and a current calculation of the Secured
Amount.
6.03 NOTICES. The Company shall notify the Administrative Agent and each
Lender promptly after any executive officer of the Company obtains knowledge:
(a) of the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under,
any Contractual Obligation of the Company or any of its Subsidiaries which could
reasonably be expected to result in a Material Adverse Effect; (ii) any material
dispute, litigation, investigation, proceeding or suspension which may exist at
any time between the Company or any of its Subsidiaries and any Governmental
Authority; and (iii) any other matter or circumstance which has had or could
reasonably be expected to have a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $5,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any Loan Document;
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(d) of (but in no event later than 10 days after becoming aware of)
(i) any and all material enforcement, investigation, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened against
the Company or any Subsidiary or any of their respective properties pursuant to
any applicable Environmental Laws, (ii) all other material Environmental Claims,
and (iii) any environmental or similar condition on any real property adjoining
or in the vicinity of the property of the Company or any Subsidiary that could
reasonably be expected to have a Material Adverse Effect;
(e) of any other litigation or proceeding affecting the Company or
any of its Subsidiaries which the Company would be required to report to the SEC
pursuant to the Exchange Act, within four days after reporting the same to the
SEC;
(f) of the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than 10 days after 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 Company or any ERISA
Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of
any Pension Plan;
(iii) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company 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; and
(g) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under SUBSECTION 6.03(a) shall describe with particularity any and all clauses
or provisions of this Agreement or other Loan Document that have been (or
foreseeably will be) breached or violated.
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6.04 PRESERVATION OF CORPORATE EXISTENCE, ETC. Except in connection with
transactions permitted by SECTION 7.03 and sales of assets permitted by SECTION
7.02, the Company shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
in the normal conduct of its business;
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) 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.
6.05 MAINTENANCE OF PROPERTY. The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property, including
intellectual property, which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted and make all necessary
repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect,
except as permitted by SECTION 7.02. The Company and each Subsidiary shall use
the standard of care typical in the industry in the operation and maintenance of
its facilities.
6.06 INSURANCE. The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers, 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; PROVIDED, that the
Company and its Subsidiaries may self-insure against liabilities in respect of
medical and workers' compensation coverage.
6.07 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith and,
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to the extent necessary, by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property which would not be permitted under SECTION 7.01; and
(c) all Indebtedness (unless such Indebtedness is being contested in
good faith and, if necessary, by appropriate proceedings), as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness.
6.08 COMPLIANCE WITH LAWS. The Company shall comply, and shall cause each
Subsidiary to comply, in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
6.09 COMPLIANCE WITH XXXXX. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
6.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Administrative Agent and the Lenders,
together, to visit and inspect any of their respective properties, to examine
their respective corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective 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
Company; PROVIDED, HOWEVER, when an Event of Default exists the Administrative
Agent or any Lender may do any of the foregoing at the expense of the Company at
any time during normal business hours and without advance notice.
6.11 ENVIRONMENTAL LAWS. (a) The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all Environmental Laws.
(b) Upon the written request of the Administrative Agent or, through
the Administrative Agent, any Lender, the Company shall submit and cause each of
its Subsidiaries to submit, to the Administrative Agent with sufficient copies
for each Lender, at the Company's
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sole cost and expense, at reasonable intervals, a report providing an update
of the status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to
SUBSECTION 6.03(d), that could, individually or in the aggregate, result in
liability in excess of $1,000,000.
6.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans for
working capital and other general corporate purposes, including Permitted
Acquisitions and Capital Expenditures, not in contravention of any Requirement
of Law or of any Loan Document.
6.13 FURTHER ASSURANCES. (a) The Company shall ensure that all written
information, exhibits and reports furnished to the Administrative Agent or the
Lenders do not and will not contain any untrue statement of a material fact and
do not and will not omit to state any material fact or any fact necessary to
make the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Administrative
Agent and the Lenders and correct any material defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgment
or recordation thereof.
(b) Promptly upon request by the Administrative Agent or the Required
Lenders, the Company shall (and shall cause any of its Subsidiaries to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Administrative
Agent or such Lenders, as the case may be, may reasonably require from time to
time in order (i) to carry out more effectively the purposes of this Agreement
or any other Loan Document, (ii) to subject to the Liens created by any of the
Collateral Documents any of the properties, rights or interests covered by any
of the Collateral Documents, (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the Liens
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Administrative Agent and
Lenders the rights granted or now or hereafter intended to be granted to the
Lenders under any Loan Document or under any other document executed in
connection therewith.
(c) The Company shall cause each domestic Subsidiary which is
acquired or formed after the Closing Date to enter into the Subsidiary Guaranty.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required Lenders
waive compliance in writing:
7.01 LIMITATION ON LIENS. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("PERMITTED
LIENS"):
(a) any Lien (other than a Lien on the Collateral) existing on
property of the Company or any Subsidiary on the Closing Date and set forth in
SCHEDULE 7.01 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) 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 6.07, provided that no notice
of lien has been filed or recorded under the Code;
(d) 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 and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by XXXXX and other than a Lien
on the Collateral) consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other social security legislation;
(f) Liens (other than Liens on the Collateral) on the property of
the Company or its Subsidiaries securing (i) the non-delinquent performance
of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and
(iii) other non-delinquent obligations of a like nature; in each case,
incurred in the ordinary course of business; PROVIDED, that all such Liens in
the aggregate could not (even if enforced) reasonably be expected to cause a
Material Adverse Effect;
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(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(h) Liens on assets of corporations which become Subsidiaries after
the date of this Agreement, PROVIDED, HOWEVER, that such Liens existed at the
time the respective corporations became Subsidiaries and were not created in
anticipation thereof;
(i) purchase money security interests on any property acquired or
held by the Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property; PROVIDED THAT (i) any such Lien
attaches to such property concurrently with or within 45 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property, and (iv) the principal amount of
the Indebtedness secured by any and all such purchase money security interests
shall not at any time exceed $2,500,000;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; PROVIDED THAT (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company or any Subsidiary in excess of those set forth by
regulations promulgated by the FRB, and (ii) such deposit account is not
intended by the Company or any Subsidiary to provide collateral to the
depository institution; and
(k) Liens on any property (other than the Collateral) securing
Indebtedness permitted to be incurred pursuant to SUBSECTION 7.05(e) or 7.10(c);
PROVIDED THAT such secured Indebtedness shall not exceed $2,500,000 in aggregate
principal amount.
7.02 DISPOSITION OF ASSETS. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, (x) issue any equity interests
of any Subsidiary to any Person which is not the Company or a Subsidiary or (y)
sell, assign, lease (as lessor), convey, transfer or otherwise dispose of
(whether in one or a series of transactions) any property (including accounts
and notes receivable, with or without recourse) or enter into any agreement to
do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
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(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment; and
(c) the license or sale of software or other proprietary assets of
the Company and its Subsidiaries to their clients in the ordinary course of
business; and
(d) dispositions not otherwise permitted hereunder which are made
for fair market value; PROVIDED, that (i) at the time of any disposition, no
Event of Default shall exist or shall result from such disposition, (ii) the
aggregate sales price from such disposition shall be paid in cash, and (iii) the
aggregate value of all assets so sold by the Company and its Subsidiaries,
together, shall not exceed in any fiscal year $5,000,000.
7.03 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall not
suffer or permit any Subsidiary 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 substantially all of its assets (whether now owned
or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company or with any one or more
Subsidiaries, provided that (i) the Company shall be the continuing or surviving
corporation, and (ii) if any transaction shall be between a Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or
surviving corporation;
(b) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Company or another Wholly-Owned
Subsidiary; and
(c) any Subsidiary may merge with any Person in order to effect a
Permitted Acquisition or a Joint Venture expressly permitted hereunder.
7.04 LOANS AND INVESTMENTS. The Company shall not purchase or acquire, or
suffer or permit any Subsidiary to purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person, or make or commit to make any
Acquisitions, or make or commit to make any advance, loan, extension of credit
or capital contribution to or any other investment in, any Person including any
Affiliate of the Company (together, "INVESTMENTS"), except for:
(a) Investments held by the Company or Subsidiary in the form of (i)
Cash Equivalents or (ii) debt obligations of United States corporations rated
BBB or better by Standard & Poor's Ratings Group or Baa or better by Xxxxx'x
Investors Services, Inc. and maturing within one year from the date of
investment;
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(b) extensions of credit in the nature of accounts receivable, notes
receivable or other trade credit arising from the sale or lease of goods or
services in the ordinary course of business;
(c) extensions of credit by the Company to any of its Wholly-Owned
Subsidiaries or by any of its Wholly-Owned Subsidiaries to another of its
Wholly-Owned Subsidiaries;
(d) Investments constituting Permitted Swap Obligations or payments
or advances under Swap Contracts relating to Permitted Swap Obligations;
(e) advances to employees in an aggregate amount not to exceed
$3,000,000 at any one time outstanding;
(f) Permitted Acquisitions as permitted under SECTIONS 7.19 and 7.20;
(g) Investments in Wholly-Owned Subsidiaries; and
(h) Investments in Joint Ventures permitted hereunder in an aggregate
amount not in excess of $2,000,000 after the Closing Date.
7.05 LIMITATION ON INDEBTEDNESS. The Company shall not, and shall not
suffer or permit any Subsidiary 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 consisting of Contingent Obligations permitted
pursuant to SECTION 7.08;
(c) Indebtedness existing on the Closing Date and set forth in
SCHEDULE 7.05;
(d) Indebtedness incurred in connection with leases permitted
pursuant to SECTION 7.10; and
(e) other Indebtedness in an aggregate amount outstanding not at any
time to exceed $5,000,000.
7.06 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon terms
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no less favorable to the Company or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary.
7.07 USE OF PROCEEDS. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the proceeds of any Loan, directly
or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
7.08 CONTINGENT OBLIGATIONS. The Company shall not, and shall not suffer
or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in SCHEDULE 7.08; and
(d) Contingent Obligations with respect to Surety Instruments
incurred in the ordinary course of business and not exceeding at any time
$1,000,000 in the aggregate in respect of the Company and its Subsidiaries
together.
7.09 JOINT VENTURES. Subject to the limitations of Section 7.04(h), the
Company shall not, and shall not suffer or permit any Subsidiary to enter into
any Joint Venture, other than with respect to any entity whose primary business,
if conducted by the Company or any Subsidiary, would be considered to be in the
ordinary course of the Company's business.
7.10 LEASE OBLIGATIONS. The Company shall not, and shall not suffer or
permit any Subsidiary to, create or suffer to exist any obligations for the
payment of rent for any property under lease or agreement to lease, except for:
(a) leases of the Company and of Subsidiaries in existence on the
Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any Subsidiary
after the Closing Date in the ordinary course of business; and
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(c) Capitalized Leases other than those permitted under clause (a) of
this Section, entered into by the Company or any Subsidiary after the Closing
Date to finance the acquisition of equipment or real property.
7.11 RESTRICTED PAYMENTS. The Company shall not, and shall not suffer or
permit any Subsidiary 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 capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding, except
that (a) any Subsidiary may make unlimited payments and distributions to the
Company or to any Wholly-Owned Subsidiary and (b) the Company may:
(i) declare and make dividend payments or other distributions payable
solely in its common stock;
(ii) purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds received
from the substantially concurrent issue of new shares of its common stock; and
(iii) declare or pay cash dividends to its stockholders and purchase,
redeem or otherwise acquire shares of its capital stock or warrants, rights or
options to acquire any such shares for cash in an amount not exceeding
$5,000,000 in any calendar year; PROVIDED, that, immediately after giving
effect to such proposed action, no Default or Event of Default would exist.
7.12 ERISA. The Company shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the Company in an
aggregate amount in excess of $1,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
7.13 AMENDMENTS TO CHARTER DOCUMENTS. The Company will not, nor will it
permit any Subsidiary to make any amendment or modification to any terms or
provisions of its Certificate or Articles of Incorporation or bylaws which is
materially adverse to the Administrative Agent or the Lenders without the prior
written consent of the Required Lenders.
7.14 CHANGE IN BUSINESS. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
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7.15 ACCOUNTING CHANGES. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
7.16 DEBT TO EBITDAR RATIO. The Company shall not, as of the last day of
any fiscal quarter, permit its Debt to EBITDAR Ratio to be greater than 3.0 to
1.0.
7.17 FIXED CHARGE COVERAGE RATIO. The Company shall not, as of the last
day of any fiscal quarter, permit its ratio of (a) EBITDAR for the period of
four fiscal quarters then ending to (b) Fixed Charges for such four fiscal
quarter period to be less than (x) 2.75 to 1.0 for the period from the Closing
Date through March 31, 1999 and (y) 3.0 to 1.0 thereafter.
7.18 QUARTERLY PROFITABILITY. The Company shall have Net Income for each
fiscal quarter of at least $1.00.
7.19 MAXIMUM COMBINATION OF CASH CAPITAL EXPENDITURES AND PERMITTED
ACQUISITIONS. The Company shall not permit the total amount of the sum of (a)
Capital Expenditures PLUS (b) expenditures incurred to effect Permitted
Acquisitions, in each case made or committed to be made by the Company and its
Subsidiaries and paid for with consideration consisting of cash and other
property, to exceed $75,000,000 in any calendar year; PROVIDED, that to the
extent such sum in any calendar year is less than $75,000,000, the $75,000,000
limit for the following calendar year shall be increased by the amount of such
shortfall; PROVIDED, FURTHER, the Company shall first use the initial amount
permitted for the current year (without regard to the amount carried over from
the previous calendar year, if any) and then the amount carried over from the
previous calendar year to meet the requirements of this SECTION 7.19 and any
carried over amount not so utilized shall expire.
7.20 PERMITTED ACQUISITIONS. The Company shall not permit the fair market
value of common stock and common stock equivalents of the Company paid by the
Company as consideration for any single Permitted Acquisition to exceed
$50,000,000.
7.21 SECURED AMOUNT. The Company shall not at any time permit the Secured
Amount to be less than the Tranche A Loan Limit.
7.22 RESTRICTIVE AGREEMENTS. The Company shall not, nor shall it permit
any of its Subsidiaries to, enter into any indenture, agreement, instrument or
other arrangement which directly or indirectly prohibits or restrains, or has
the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of any Subsidiary to (a) pay dividends or make
other distributions (i) on its capital stock or (ii) with respect to any other
interest or participation in, or measured by, its profits, (b) make loans or
advances to the Company or any Subsidiary, (c) repay loans or advances from the
Company or any Subsidiary, (d) grant Liens on
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any of its assets (other than assets which are subject to Permitted Liens and
as to which the Company or such Subsidiary has agreed not to extend a second
Lien) in favor of the Administrative Agent or any Lender to secure the
Obligations or (e) transfer any of its properties or assets to the Company or
any Subsidiary; PROVIDED, that any such agreement or arrangement to which any
Subsidiary which is the subject of a Permitted Acquisition is a party at the
time of such Permitted Acquisition may remain in effect for a period of
thirty (30) days following the consummation of such Permitted Acquisition.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 EVENT OF DEFAULT. Any of the following shall constitute an "EVENT OF
DEFAULT":
(a) NON-PAYMENT. The Company fails to make, (i) when and as required
to be made herein, payments of any amount of principal of any Loan, or
(ii) within five (5) Business Days after the same becomes due, payment of any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by
the Company or any Subsidiary made or deemed made herein or in any other Loan
Document, or contained in any certificate, document or financial or other
statement by the Company, any Subsidiary, or any Responsible Officer, furnished
at any time under this Agreement, or in or under any other Loan Document is
incorrect in any material respect on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe any
term, covenant or agreement contained in any of SECTIONS 6.01, 6.02, 6.03 or
6.09 or in ARTICLE VII; or
(d) OTHER DEFAULTS. The Company or any Subsidiary party thereto
fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue unremedied
for a period of 20 days after the earlier of (i) the date upon which a
Responsible Officer knew of such failure or (ii) the date upon which written
notice thereof is given to the Company by the Administrative Agent or any
Lender; or
(e) CROSS-DEFAULT. (i) The Company or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent Obligation (other
than in respect of 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
$2,500,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) giving effect to applicable grace periods;
or
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(B) fails to perform or observe any other condition or covenant, or any other
event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, if the effect of
such failure, event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or Administrative Agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable or to be required to be repurchased prior to
its stated maturity, or such Contingent Obligation 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 (1) any event of default under such Swap Contract as to which
the Company or any Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (2) any Termination Event (as so defined) as to which the
Company or any Subsidiary is an Affected Party (as so defined), and, in
either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $1,000,000; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any Subsidiary
(i) ceases or fails to be solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes
any action to effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Company's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the Company or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company or any ERISA Affiliate under Title IV of
ERISA to such Pension Plan or Multiemployer Plan or to the PBGC in an aggregate
amount for all such Pension Plans and Multiemployer Plans in excess of
$1,000,000; or (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans and Multiemployer Plans at any time exceeds $1,000,000
(determined, in respect of Multiemployer Plans, by reference to the Unfunded
Pension Liability for which the Company
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or any ERISA Affiliate may be liable); or (iii) the Company or any ERISA
Affiliate shall fail 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 $1,000,000; or
(i) MONETARY JUDGMENTS. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $1,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30 days after
the entry thereof; or
(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree is entered against the Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) CHANGE OF CONTROL. There occurs any Change of Control; or
(l) LOSS OF LICENSES. Any Governmental Authority revokes or fails to
renew any material license, permit or franchise of the Company or any
Subsidiary, or the Company or any Subsidiary for any reason loses any material
license, permit or franchise, or the Company 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
material license, permit or franchise; or
(m) ADVERSE CHANGE. There occurs a Material Adverse Effect; or
(n) GUARANTOR DEFAULTS. Any Guarantor fails in any material respect
to perform or observe any term, covenant or agreement in the Subsidiary
Guaranty; or the Subsidiary Guaranty is for any reason in any material
respect (including with respect to future advances) or wholly revoked or
invalidated, or otherwise ceases to be in full force and effect, or any
Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described in subsection (f) or (g) of
this Section occurs with respect to a Guarantor; or
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(o) COLLATERAL.
(i) any provision of any Collateral Document shall for any
reason cease to be valid and binding on or enforceable against the Company
or any Subsidiary party thereto or the Company or any Subsidiary shall so
state in writing or bring an action to limit its obligations or liabilities
thereunder; or
(ii) any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby or such security
interest shall for any reason cease to be a perfected and first priority
security interest.
8.02 REMEDIES. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the Commitment of each Lender to make Loans to be
terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; 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 specified in subsection
(f) or (g) of SECTION 8.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent or any Lender.
8.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION; "ADMINISTRATIVE AGENT". Each Lender
hereby irrevocably (subject to SECTION 9.09) 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 in this Agreement 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, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement 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
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 with reasonable care.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. None of the Agent-Related Persons
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), or (b) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement 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 for the value of or title to any Collateral, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company 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 to ascertain or
to inquire as to the observance or performance of any of
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the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of the Company
or any of the Company's Subsidiaries or Affiliates.
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, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone 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 Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 4.01, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
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 Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Required Lenders in accordance with
ARTICLE VIII; PROVIDED, HOWEVER, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders except to the extent that other provisions of this
Agreement expressly require that any such action be taken or not be taken only
with the consent and authorization or at the request of the Lenders or the
Required Lenders, as applicable.
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9.06 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. 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 Company and its Subsidiaries, the
value of and title to any Collateral, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Company 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 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 Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent and financial statements and other materials
provided pursuant to SECTION 6.01 or 6.02, 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 the Company which may come into the
possession of any of the Agent-Related Persons.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), in accordance with such Xxxxxx's Pro Rata Share of all Loans, from and
against any and all Indemnified Liabilities; PROVIDED, HOWEVER, that no Lender
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting from such Person's gross negligence or
willful misconduct. 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
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Administrative
Agent.
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9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. BofA 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 the Company and
its Subsidiaries and Affiliates as though BofA were not the Administrative Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them. With respect to its
Loans, BofA shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" include BofA in its individual
capacity.
9.09 SUCCESSOR AGENT. The Administrative Agent may, and at the request of
the Required Xxxxxxx, shall resign as Administrative Agent upon 30 days' notice
to the Lenders. If the Administrative Agent resigns under this Agreement, the
Required Xxxxxxx shall appoint from among the Lenders a successor agent for the
Lenders. If no successor 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 Company, a successor agent from among
the Lenders. Upon the acceptance of its appointment as successor agent
xxxxxxxxx, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
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
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 Xxxxxxx appoint a
successor agent as provided for above.
9.10 WITHHOLDING TAX. (a) (i) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Xxxxxx agrees with and in favor of the Administrative
Agent, to deliver to the Administrative Agent:
(A) if such Xxxxxx claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, two properly
completed and executed copies of IRS Form 1001 before the payment of any
interest in the first calendar year and
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before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(B) if such Xxxxxx claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224 before
the payment of any interest is due in the first taxable year of such Lender
and in each succeeding taxable year of such Lender during which interest
may be paid under this Agreement; and
(C) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Xxxxxx agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(ii) If any foreign Lender claims exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", such Xxxxxx agrees with and in favor of the
Administrative Agent and the Company to deliver to the Administrative Agent
and the Company a Form W-8, or any subsequent versions thereof or successors
thereto (and, if such Lender delivers a Form W-8, a certificate representing
that such Lender is not a "bank" for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(b)
of the Code) of the Company and is not a controlled foreign corporation
related to the Company (within the meaning of Section 864(d)(4) of the Code)).
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Lender, such Xxxxxx agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Xxxxxx's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Administrative Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of the
Company to such Lender, such Xxxxxx agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
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(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other
documentation required by subsection (a) of this Section are not delivered to
the Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax imposed by Sections 1441
and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
9.11 COLLATERAL MATTERS. (a) The Administrative Agent is authorized on
behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with respect to
any Collateral or the Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Commitments
and payment in full of all Loans and all other Obligations known to the
Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the Indebtedness evidenced thereby has been paid in full; or
(iii) if approved, authorized or ratified in writing by the Required Lenders or
all the Lenders, as the case may be, as provided in SUBSECTION 10.01(g). Upon
request by the Administrative Agent at any time, the Lenders will confirm in
writing the Administrative Agent's authority to release particular types or
items of Collateral pursuant to this SUBSECTION 9.11(b), provided that the
absence of any such confirmation for whatever reason shall not affect the
Administrative Agent's rights under this SECTION 9.11.
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(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary) that
the Company's obligation to such Lender under this Agreement and the other Loan
Documents is not and shall not be secured by any real property collateral now or
hereafter acquired by such Lender.
9.12 CO-AGENTS. None of the Lenders identified on the facing page or
signature pages of this Agreement as a "Co-Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none
of the Lenders so identified as a "Co-Agent" 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 so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Administrative Agent at the written request of the Required Lenders)
and the Company and acknowledged by the Administrative Agent, and then any 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 waiver,
amendment, or consent shall, unless in writing and signed by all the Lenders and
the Company and acknowledged by the Administrative Agent, do any of the
following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 8.02);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
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(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder;
(e) amend this Section, the definition of "Required Lenders", or
SECTION 2.13, or any provision herein providing for consent or other action by
all Lenders;
(f) increase the Tranche A Loan Limit to an amount in excess of
$30,000,000 or amend SECTION 7.21; or
(g) discharge any Guarantor, or release all or any material portion
of the Collateral except as otherwise may be provided in the Collateral
Documents or except where the consent of the Required Lenders only is
specifically provided for;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document, and
(ii) the Fee Letter may be amended, or rights or privileges thereunder waived,
in a writing executed by the parties thereto.
10.02 NOTICES. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
SCHEDULE 10.02, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on SCHEDULE 10.02; or, as directed to the Company
or the Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties, and as directed to any
other party, at such other address as shall be designated by such party in a
written notice to the Company and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to ARTICLE II or IX to the Administrative Agent shall not be
effective until actually received by the Agent.
(c) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Administrative Agent and the
Lenders shall be entitled to rely on the authority
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of any Person purporting to be a Person authorized by the Company to give
such notice and the Administrative Agent and the Lenders shall not have any
liability to the Company or other Person on account of any action taken or
not taken by the Administrative Agent or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of the Company to repay the
Loans shall not be affected in any way or to any extent by any failure by the
Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood
by the Administrative Agent and the Lenders to be contained in the telephonic
or facsimile notice.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, 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.
10.04 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Administrative
Agent) and the Arranger within five (5) Business Days after demand (subject to
SUBSECTION 4.01(e)) for all reasonable costs and expenses incurred by BofA
(including in its capacity as Administrative Agent) and the Arranger in
connection with the development, preparation, delivery, administration,
syndication and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by BofA (including in its
capacity as Administrative Agent) and the Arranger with respect thereto;
(b) pay or reimburse the Administrative Agent, the Arranger and each
Lender within five (5) Business Days after demand (subject to SUBSECTION
4.01(e)) for all costs and expenses (including Attorney Costs) incurred by them
in connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any other Loan Document during
the existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as
Administrative Agent) within five (5) Business Days after demand (subject to
SUBSECTION 4.01(e)) for all appraisal (including the allocated cost of internal
appraisal services), audit, environmental inspection and review (including the
allocated cost of such internal services), search and filing costs, fees and
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expenses, incurred or sustained by BofA (including in its capacity as
Administrative Agent) in connection with the matters referred to under
subsections (a) and (b) of this Section.
10.05 COMPANY INDEMNIFICATION. (a) The Company shall indemnify, defend
and hold the Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"INDEMNIFIED PERSON") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender or assignment by any Lender of
its Loans or Commitment) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or the use
of the proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES");
PROVIDED, that the Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
(b) Survival; Defense. The obligations in this Section shall survive
payment of all other Obligations. At the election of any Indemnified Person,
the Company shall defend such Indemnified Person using legal counsel
satisfactory to such Indemnified Person in such Person's sole discretion, at the
sole cost and expense of the Company. All amounts owing under this Section
shall be paid within 30 days after demand.
10.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Administrative
Agent nor the Lenders shall be under any obligation to xxxxxxxx any assets in
favor of the Company or any other Person or against or in payment of any or
all of the Obligations. To the extent that the Company makes a payment to
the Administrative Agent or the Lenders, or the Administrative Agent or the
Lenders exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof are 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 Insolvency Proceeding 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
pro rata share of any amount so recovered from or repaid by the
Administrative Agent.
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10.07 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
10.08 ASSIGNMENTS, PARTICIPATIONS, ETC. (a) Any Lender may, with the
written consent of the Company at all times other than during the existence
of an Event of Default and the Administrative Agent, which consent of the
Company shall not be unreasonably withheld or delayed, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent
of the Company or the Administrative Agent shall be required in connection
with any assignment and delegation by a Lender to an Eligible Assignee that
is an Affiliate of such Lender) (each an "ASSIGNEE") all, or any ratable part
of all, of the Loans, the Commitments and the other rights and obligations of
such Lender hereunder, in a minimum amount of $5,000,000 or, if less, 100% of
such Xxxxxx's outstanding Loans and/or Commitment; PROVIDED, HOWEVER, that
the Company and the Administrative Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an
Assignee until (A) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Company and the Administrative Agent by such
Xxxxxx and the Assignee, (B) such Lender and its Assignee shall have
delivered to the Company and the Administrative Agent an Assignment and
Acceptance in the form of EXHIBIT D ("ASSIGNMENT AND ACCEPTANCE") together
with any Note or Notes subject to such assignment and (C) the assignor Lender
or Assignee has paid to the Administrative Agent a processing fee in the
amount of $3,500; PROVIDED, FURTHER, that upon receipt of notice from any
Lender that such Lender intends, pursuant to this SECTION 10.08, to make any
such assignment and delegation to an Assignee other than an Affiliate of such
Lender or another Lender, then, so long as no Event of Default has occurred
and is continuing, the Company shall have 10 days from the date of receipt of
such notice to obtain an Assignee (which Assignee shall be reasonably
satisfactory to the Administrative Agent and the assignor Lender) to accept
such assignment and delegation from such Lender, in lieu of the Assignee
specified by such assignor Lender, with such assignment to be made otherwise
in compliance with this SECTION 10.08, except that the $3,500 processing fee
shall be paid by the Company or the Assignee chosen by the Company; PROVIDED,
FURTHER, that if any Assignee chosen by the Company pursuant to preceding
proviso is found to be unsatisfactory to the assignor Lender, then the
Company shall have an additional 10-day period to obtain another Assignee.
(b) From and after the date that the Administrative Agent notifies
the assignor Lender that it has received (and, if required, provided its
consent with respect to) an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender under the Loan Documents, and (ii) the
assignor Lender shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been
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assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Within five (5) Business Days after its receipt of notice by the
Administrative Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee, (and provided that it consents to such
assignment in accordance with SUBSECTION 10.08(a)), the Company shall execute
and deliver to the Administrative Agent, new Notes evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Lender has retained a portion
of its Loans and its Commitment, replacement Notes in the principal amount of
the Loans retained by the assignor Lender (such Notes to be in exchange for, but
not in payment of, the Notes held by such Xxxxxx). Immediately upon each
Assignee's making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Lender
PRO TANTO.
(d) The Administrative Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders and the Commitments of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in such register
shall be conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Lenders shall treat each person whose name is
recorded in such register as the owner of the Commitments and the Loans recorded
therein for all purposes of this Agreement. The register shall be available for
inspection by the Company, any Lender and their representatives, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of the Company (a "PARTICIPANT") participating
interests in any Loans, the Commitment of that Lender and the other interests of
that Xxxxxx (the "ORIGINATING LENDER") hereunder and under the other Loan
Documents; PROVIDED, HOWEVER, that (i) the originating Lender's obligations
under this Agreement shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Company and the Administrative Agent shall continue to deal solely and directly
with the originating Lender in connection with the originating Lender's rights
and obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in clause (a) (but only in respect of any increase of any
Commitment of any originating Lender), (b) or (c) of the FIRST PROVISO to
SECTION 10.01. In the case of any such participation, the Participant shall be
entitled to the benefit of SECTIONS 3.01, 3.03 and 10.05 as though it were also
a Lender hereunder, and if
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amounts outstanding under this Agreement are due and unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement, (i) any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law and (ii) any Lender that is a fund that invests in bank loans
may, without the consent of the Administrative Agent or the Company, pledge all
or any portion of its rights under and interest in this Agreement to any trustee
or to any other representative of holders of obligations owed or securities
issued by such fund as security for such obligations or securities; PROVIDED,
that any transfer to any Person upon the enforcement of such pledge or security
interest may only be made subject to SECTION 10.08.
10.09 CONFIDENTIALITY. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions, in accordance with such
Lender's customary procedures for handling confidential information of this
nature, and exercise due care to maintain the confidentiality of all information
identified as "nonpublic", "confidential" or "secret" by the Company and
provided to it by the Company or any Subsidiary, or by the Administrative Agent
on the Company's or such Subsidiary's behalf, under this Agreement or any other
Loan Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with the Company or any Subsidiary; except to
the extent such information (a) was or becomes generally available to the public
other than as a result of disclosure by the Lender or its Affiliates, or (b) was
or becomes available on a non-confidential basis from a source other than the
Company or any Subsidiary, provided that such source is not bound by a
confidentiality agreement with the Company or such Subsidiary known to the
Lender; PROVIDED, HOWEVER, that any Lender may disclose such information (i) at
the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (ii) pursuant to subpoena or other court process;
(iii) when required to do so in accordance with the provisions of any applicable
Requirement of Law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Administrative Agent, any Lender or
their respective Affiliates may be party; (v) to the extent reasonably required
in connection with the exercise of any remedy hereunder or under any other Loan
Document; (vi) to such Lender's independent auditors and other professional
advisors, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; (vii) to any
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Participant or Assignee, actual or potential, provided that such Person agrees
in writing to keep such information confidential to the same extent required of
the Lenders hereunder; (viii) as to any Lender or its Affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is deemed
party with such Lender or such Affiliate; (ix) to its Affiliates; and (x) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about such Xxxxxx's investment portfolio in connection with ratings issued with
respect to such Lender.
10.10 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law and regardless of the adequacy of any of the Collateral, if an
Event of Default exists or the Loans have been accelerated, each Lender is
authorized at any time and from time to time, without prior notice to the
Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Company against any and all Obligations owing to such Lender, now
or hereafter existing, irrespective of whether or not the Administrative Agent
or such Lender shall have made demand under this Agreement or any Loan Document
and although such Obligations may be contingent or unmatured. Each Lender
agrees promptly to notify the Company 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.
10.11 AUTOMATIC DEBITS OF FEES. With respect to any commitment fee,
arrangement fee, or other fee, or any other cost or expense (including Attorney
Costs) due and payable to the Administrative Agent, BofA or the Arranger under
the Loan Documents, the Company hereby irrevocably authorizes BofA to debit any
deposit account of the Company with BofA in an amount such that the aggregate
amount debited from all such deposit accounts does not exceed such fee or other
cost or expense. If there are insufficient funds in such deposit accounts to
cover the amount of the fee or other cost or expense then due, such debits will
be reversed (in whole or in part, in BofA's sole discretion) and such amount not
debited shall be deemed to be unpaid. No such debit under this Section shall be
deemed a set-off.
10.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender shall
notify the Administrative Agent in writing of any changes in the address to
which notices to the Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
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10.13 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 NO THIRD PARTIES BENEFITED. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
10.16 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF);
PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS 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 THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS
LAW.
10.17 WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
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TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A
TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
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.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Chicago, Illinois by their proper and duly
authorized officers as of the day and year first above written.
TELETECH HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
FIRST UNION NATIONAL BANK, individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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U.S. BANK NATIONAL ASSOCIATION, individually and as Co-Agent
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Title: Vice President
----------------------------------------
XXXXX FARGO BANK N.A., individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
----------------------------------------
FLEET NATIONAL BANK
By: /s/ Xxxx Xxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
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SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Lender Commitment Share
------ ---------- --------
Bank of America
National Trust and
Savings Association $ 12,000,000 24%
First Union National Bank $ 9,500,000 19%
Fleet National Bank $ 9,500,000 19%
U.S. Bank National Association $ 9,500,000 19%
Xxxxx Fargo Bank N.A. $ 9,500,000 19%
TOTAL $50,000,000 100%
