EXHIBIT 10.1
================================================================================
$225,000,000
CREDIT AGREEMENT
dated as of May 14, 2007
among
SKILLSOFT PLC,
as Holdings,
SKILLSOFT CORPORATION,
as Borrower
THE LENDERS PARTY HERETO
and
CREDIT SUISSE,
as Administrative Agent and Collateral Agent
----------
CREDIT SUISSE SECURITIES (USA) LLC,
as Sole Bookrunner and Sole Lead Arranger
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent
SILICON VALLEY BANK,
as Documentation Agent
================================================================================
TABLE OF CONTENTS
PAGE
-----
ARTICLE I.
DEFINITIONS
SECTION 1.01 Defined Terms............................................ 1
SECTION 1.02 Terms Generally.......................................... 27
SECTION 1.03 Classification of Loans and Borrowings................... 27
SECTION 1.04 Pro Forma Calculations................................... 28
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments.............................................. 28
SECTION 2.02 Loans.................................................... 28
SECTION 2.03 Borrowing Procedure...................................... 30
SECTION 2.04 Repayment of Loans; Evidence of Debt..................... 31
SECTION 2.05 Fees..................................................... 31
SECTION 2.06 Interest on Loans........................................ 32
SECTION 2.07 Default Interest......................................... 33
SECTION 2.08 Alternate Rate of Interest............................... 33
SECTION 2.09 Termination and Reduction of Commitments................. 34
SECTION 2.10 Conversion and Continuation of Borrowings................ 34
SECTION 2.11 Repayment of Term Borrowings............................. 35
SECTION 2.12 Prepayment............................................... 36
SECTION 2.13 Mandatory Prepayments.................................... 37
SECTION 2.14 Reserve Requirements; Change in Circumstances............ 39
SECTION 2.15 Change in Legality....................................... 40
SECTION 2.16 Indemnity................................................ 41
SECTION 2.17 Pro Rata Treatment....................................... 41
SECTION 2.18 Sharing of Setoffs....................................... 42
SECTION 2.19 Payments................................................. 42
SECTION 2.20 Taxes.................................................... 43
SECTION 2.21 Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate......................................... 45
SECTION 2.22 Swingline Loans.......................................... 46
SECTION 2.23 Letters of Credit........................................ 47
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization; Powers..................................... 51
SECTION 3.02 Authorization; No Conflicts.............................. 52
SECTION 3.03 Enforceability........................................... 52
SECTION 3.04 Governmental Approvals................................... 52
SECTION 3.05 Financial Statements..................................... 53
SECTION 3.06 No Material Adverse Change............................... 53
SECTION 3.07 Title to Properties; Possession Under Leases............. 53
SECTION 3.08 Subsidiaries............................................. 54
SECTION 3.09 Litigation; Compliance with Laws......................... 54
SECTION 3.10 Agreements............................................... 55
SECTION 3.11 Federal Reserve Regulations.............................. 55
SECTION 3.12 Investment Company Act................................... 55
SECTION 3.13 Use of Proceeds.......................................... 55
SECTION 3.14 Tax Returns.............................................. 56
SECTION 3.15 No Material Misstatements; Acquisition Documentation..... 56
SECTION 3.16 Employee Benefit Plans................................... 56
SECTION 3.17 Environmental Matters.................................... 57
SECTION 3.18 Insurance................................................ 58
SECTION 3.19 Security Documents....................................... 58
SECTION 3.20 Location of Real Property................................ 60
SECTION 3.21 Labor Matters............................................ 60
SECTION 3.22 Liens.................................................... 60
SECTION 3.23 Intellectual Property.................................... 60
SECTION 3.24 Solvency................................................. 61
SECTION 3.25 Acquisition Documentation................................ 61
SECTION 3.26 Permits.................................................. 62
SECTION 3.27 Anti-Terrorism Laws...................................... 62
SECTION 3.28 UK Pensions.............................................. 63
SECTION 3.29 UK Financial Assistance.................................. 63
ARTICLE IV.
CONDITIONS OF LENDING
SECTION 4.01 All Credit Events........................................ 63
SECTION 4.02 First Credit Event....................................... 64
ARTICLE V.
AFFIRMATIVE COVENANTS
SECTION 5.01 Existence; Businesses and Properties..................... 67
SECTION 5.02 Insurance................................................ 67
SECTION 5.03 Obligations and Taxes.................................... 68
SECTION 5.04 Financial Statements, Reports, etc....................... 68
SECTION 5.05 Litigation and Other Notices............................. 70
ii
SECTION 5.06 Information Regarding Collateral......................... 70
SECTION 5.07 Maintaining Records; Access to Properties and
Inspections; Environmental Assessments................... 70
SECTION 5.08 Use of Proceeds.......................................... 71
SECTION 5.09 Additional Collateral, etc............................... 71
SECTION 5.10 Further Assurances....................................... 73
SECTION 5.11 Interest Rate Protection................................. 73
SECTION 5.12 Maintenance of Ratings................................... 74
SECTION 5.13 Centre of Main Interest.................................. 74
SECTION 5.14 UK Data Protection....................................... 74
ARTICLE VI.
NEGATIVE COVENANTS
SECTION 6.01 Indebtedness............................................. 74
SECTION 6.02 Liens.................................................... 75
SECTION 6.03 Sale and Lease-Back Transactions......................... 77
SECTION 6.04 Investments, Loans and Advances.......................... 77
SECTION 6.05 Mergers, Consolidations, Sales of Assets and
Acquisitions............................................. 78
SECTION 6.06 Restricted Payments; Restrictive Agreements.............. 79
SECTION 6.07 Transactions with Affiliates............................. 81
SECTION 6.08 Business of Holdings, the Borrower and Subsidiaries;
Limitation on Hedging Agreements......................... 81
SECTION 6.09 Other Indebtedness and Agreements; Amendments to
Acquisition Documentation................................ 81
SECTION 6.10 Capital Expenditures..................................... 82
SECTION 6.11 Interest Coverage Ratio.................................. 83
SECTION 6.12 Leverage Ratio........................................... 83
SECTION 6.13 Fiscal Year.............................................. 83
ARTICLE VII.
EVENTS OF DEFAULT
ARTICLE VIII.
THE AGENTS AND THE ARRANGER
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices.................................................. 90
SECTION 9.02 Survival of Agreement.................................... 91
iii
SECTION 9.03 Binding Effect........................................... 91
SECTION 9.04 Successors and Assigns................................... 91
SECTION 9.05 Expenses; Indemnity...................................... 95
SECTION 9.06 Right of Setoff.......................................... 96
SECTION 9.07 Applicable Law........................................... 97
SECTION 9.08 Waivers; Amendment....................................... 97
SECTION 9.09 Interest Rate Limitation................................. 98
SECTION 9.10 Entire Agreement......................................... 98
SECTION 9.11 WAIVER OF JURY TRIAL..................................... 98
SECTION 9.12 Severability............................................. 99
SECTION 9.13 Counterparts............................................. 99
SECTION 9.14 Headings................................................. 99
SECTION 9.15 Jurisdiction; Consent to Service of Process.............. 99
SECTION 9.16 Confidentiality.......................................... 100
SECTION 9.17 Delivery of Lender Addenda............................... 100
Exhibits and Schedules
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Affiliate Subordination Agreement
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Borrowing Request
Exhibit E Form of Guarantee and Collateral Agreement
Exhibit F Form of Lender Addendum
Exhibit G Form of Perfection Certificate
Exhibit H Form of Exemption Certificate
Exhibit I Form of Opinion of Xxxxxx, Cutler, Pickering, Xxxx and
Xxxx LLP
Exhibit J Form of Promissory Note
Schedule 1.01 Subsidiary Guarantors
Schedule 1.02 Non-Core Netg Assets
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.14 Tax Matters
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(a) UCC Filing Offices
Schedule 3.20 Owned and Leased Real Property
Schedule 3.25 Acquisition Documentation
Schedule 4.02(n) Leased Locations for Landlord Waivers
Schedule 6.01 Existing Indebtedness
Schedule 6.02 Existing Liens
Schedule 6.04 Existing Investments
iv
CREDIT AGREEMENT dated as of May 14, 2007 (this "Agreement"), among
SKILLSOFT PLC, an Irish public limited company, ("Holdings"), SKILLSOFT
CORPORATION, a Delaware Corporation, (the "Borrower"), the LENDERS from time to
time party hereto, CREDIT SUISSE, as administrative agent (in such capacity and
together with its successors, the "Administrative Agent") and as collateral
agent (in such capacity and together with its successors, the "Collateral
Agent"), CREDIT SUISSE SECURITIES (USA) LLC, as sole bookrunner and sole lead
arranger (in such capacity, the "Arranger"), KEYBANK NATIONAL ASSOCIATION, as
syndication agent (in such capacity, the "Syndication Agent"), and SILICON
VALLEY BANK, as documentation agent (in such capacity, the "Documentation
Agent").
The parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquired Entity" shall have the meaning assigned to such term in the
definition of "Permitted Acquisition".
"Acquisition" shall mean the acquisition of the Target by the Borrower and
Holdings from the Sellers for the Acquisition Consideration pursuant to the
Purchase Agreement.
"Acquisition Consideration" shall mean an aggregate amount not to exceed
$285,000,000 in (a) cash or (b) a combination of cash and Holdings' ordinary
shares (or American Depository Shares representing Holdings' ordinary shares) to
be paid, including any adjustments, pursuant to the terms of the Purchase
Agreement.
"Acquisition Documentation" shall mean, collectively, the Purchase
Agreement and all schedules, exhibits, annexes and amendments thereto, and all
side letters and agreements affecting the terms thereof or entered into in
connection therewith.
"Acquisition Transactions" shall mean, collectively, (a) the Acquisition,
including the payment of the Acquisition Consideration, (b) the obtaining by the
Borrower of the Facility provided for by this Agreement, (c) the payment of fees
and expenses incurred in connection with the foregoing in an amount not to
exceed $12,000,000 and (d) the payment of certain integration costs in an
aggregate amount not to exceed $30,000,000.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum equal to the product of (a)
the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent" shall have the meaning assigned to such term in the
preamble.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A, or such other form as may be supplied from time to
time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified; provided, however, that, for purposes of Section 6.07, the term
"Affiliate" shall also include any person that directly or indirectly owns 10%
or more of any class of Equity Interests of the person specified or that is an
officer or director of the person specified.
"Affiliate Subordination Agreement" shall mean an Affiliate Subordination
Agreement in the form of Exhibit B pursuant to which intercompany obligations
and advances owed by any Loan Party are subordinated to the Obligations.
"Agents" shall have the meaning assigned to such term in Article VIII.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Agreement" shall have the meaning assigned to such term in the preamble.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Margin" shall mean, for any day, (a) for each Type of Term
Loan, the rate per annum equal to 2.75% for Eurodollar Term Loans and 1.75% for
ABR Term Loans and (b) for each type of Revolving Loan and Swingline Loan, the
rate per annum set forth under the relevant column heading below based upon the
Leverage Ratio as of the relevant date of determination:
2
ABR REVOLVING
EURODOLLAR LOANS AND
LEVERAGE RATIO REVOLVING LOANS SWINGLINE LOANS
-------------- --------------- ---------------
Category 1 2.75% 1.75%
Greater than 2.50 to 1.00
Category 2 2.50% 1.50%
Less than or equal to 2.50:1.00
Each change in the Applicable Margin resulting from a change in the
Leverage Ratio shall be effective with respect to all Revolving Loans, Swingline
Loans and Letters of Credit outstanding on or after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.04(a) or Section 5.04(b) and Section 5.04(d), respectively, indicating
such change until the date immediately preceding the next date of delivery of
such financial statements and certificates indicating another such change.
Notwithstanding the foregoing, until the Borrower shall have delivered the
financial statements and certificates required by Section 5.04(b) and Section
5.04(d), respectively, for the period ended on October 31, 2007, the Leverage
Ratio shall be deemed to be in Category 1 for purposes of determining the
Applicable Margin. In addition, (a) at any time during which the Borrower has
failed to deliver the financial statements and certificates required by Section
5.04(a) or Section 5.04(b) and Section 5.04(d) respectively, or (b) at any time
after the occurrence and during the continuance of an Event of Default, the
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Applicable Margin.
"Approved Fund" shall mean any person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered, advised or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers, advises or manages a Lender.
"Arranger" shall have the meaning assigned to such term in the preamble.
"Asset Sale" shall mean the sale, lease, sub-lease, sale and leaseback,
assignment, conveyance, transfer, issuance or other disposition (by way of
merger, casualty, condemnation or otherwise) by Holdings, the Borrower or any
Subsidiary (other than by (a) Holdings, the Borrower or any Subsidiary Guarantor
to a Loan Party or (b) any Subsidiary that is not a Loan Party to a Loan Party
or any other Subsidiary, in each case of (x) any Equity Interests of any of the
Subsidiaries or (y) any other assets of Holdings, the Borrower or any of the
Subsidiaries, including Equity Interests of any person that is not a Subsidiary
(other than inventory, obsolete or worn out assets, scrap and Permitted
Investments, licensing of intellectual property rights in each case disposed of
or licensed in the ordinary course of business)); provided that any asset sale
or series of related asset sales described in clause (y) above having a value
not in excess of $250,000 shall be deemed not to be an "Asset Sale" for purposes
of this Agreement.
3
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any person whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit C or such other form as shall be approved by the Administrative
Agent.
"Bank Forecast" shall mean the information provided by the Borrower and
Holdings to Credit Suisse, Credit Suisse Securities (USA) LLC and their
respective affiliates on October 23, 2006, including, but not limited to, the
financial model (and any actual or implicit assumptions thereunder) of Holdings,
the Borrower, the Subsidiaries and the Target.
"Benefit Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Tax Code or Section 307 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" shall have the meaning assigned to such term in the preamble.
"Borrowing" shall mean (a) Loans of the same Class and Type made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit D, or such
other form as shall be approved by the Administrative Agent.
"Breakage Event" shall have the meaning assigned to such term in Section
2.16
"Business" shall mean the business of selling, marketing, and developing
integrated learning solutions that include instructional content, multiple
delivery options, enabling technologies and/or consulting services as conducted
by Sellers prior to the date hereof and as sometimes referred to prior to the
date hereof as the "NETg business" of Sellers.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which commercial banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan
(including with respect to all notices and determinations in connection
therewith and any payments of principal, interest or other amounts thereon), the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Canadian Guarantor" shall mean SkillSoft Canada, Ltd., a corporation
incorporated under the laws of the Province of New Brunswick, and its successors
and permitted assigns.
4
"Canadian Security Agreement" shall mean the security agreement, dated as
of the date hereof, granted by the Canadian Guarantor to and in favour of the
Collateral Agent for the benefit of the Secured Parties.
"Canadian Security Documents" shall mean, collectively (i) the guarantee
dated as of the date hereof made by the Canadian Guarantor in favour of the
Collateral Agent and each of the other Secured Parties (as defined therein),
(ii) the Canadian Security Agreement and (iii) each of the other guarantees,
security agreements, pledges, debentures, hypothecs, mortgages, consents and
other instruments and documents executed and delivered by the Canadian Guarantor
or any other Canadian subsidiary of Holdings in connection with this Agreement
or pursuant to Sections 5.09 or 5.10.
"Capital Expenditures" shall mean, for any period, with respect to any
person, (a) the additions to property, plant and equipment and other capital
expenditures of such person and its consolidated subsidiaries that are (or
should be) set forth in a consolidated statement of cash flows of such person
for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by such person and its consolidated subsidiaries during
such period; provided, however, that Capital Expenditures for Holdings and the
Subsidiaries shall not include (i) expenditures of proceeds of insurance
settlements or condemnation awards in respect of lost, destroyed, damaged or
condemned assets to the extent such expenditures are made to replace or repair
such lost, destroyed, damaged or condemned assets, (ii) expenditures of proceeds
from Asset Sales so long as such expenditures are made within 270 days of the
receipt of such proceeds and (iii) expenditures made in connection with a
Permitted Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
"Cayman Guarantor" shall mean SkillSoft Finance Limited, an exempted
company incorporated under the laws of the Cayman Islands.
"Cayman Security Documents" shall mean, collectively, (i) the Pledge
Agreement made by the Cayman Guarantor in favor of the Collateral Agent, (ii)
the Securities Account Control Agreement made by the Cayman Guarantor and
Silicon Valley Bank in favor of the Collateral Agent, (iii) the share charge
made by Holdings in favor of the Collateral Agent and (iv) each of the other
guarantees, security agreements, pledges, debentures and other documents and
instruments executed and delivered by the Cayman Guarantor in connection with
this Agreement or pursuant to Sections 5.09 or 5.10.
A "Change in Control" shall be deemed to have occurred if (a) any "person"
or "group" (within the meaning of Rule 13d-5 of the Securities Exchange Act of
1934 as in effect on the date hereof) or persons acting in concert (within the
meaning of the Irish Takeover Panel Act of 1997 of Ireland) shall own directly
or indirectly, beneficially or of record, Equity Interests representing 30% or
more of either the aggregate ordinary voting power or the aggregate equity
5
value represented by the issued and outstanding Equity Interests in Holdings;
(b) a majority of the seats (other than vacant seats) on the board of directors
of Holdings shall at any time be occupied by persons who are not Continuing
Directors; (c) Holdings shall at any time fail to own directly or indirectly,
beneficially free and clear of all Liens (other than non-consensual statutory
Liens permitted under Section 6.02) and of record, 100% of each class of issued
and outstanding Equity Interests in the Borrower; or (d) any change of control
(or similar event, however denominated) with respect to Holdings, the Borrower
or any Subsidiary shall occur under any indenture or agreement in respect of
Material Indebtedness to which Holdings, the Borrower or any Subsidiary is a
party.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14, by any lending office of such Lender or
by such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Charges" shall have the meaning assigned to such term in Section 9.09.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term
Loans or Swingline Loans and, when used in reference to any Commitment, refers
to whether such Commitment is a Revolving Credit Commitment, Term Loan
Commitment or Swingline Commitment.
"Closing Date" shall mean the date of the first Credit Event.
"Collateral" shall mean all property and assets of the Loan Parties, now
owned or hereafter acquired, upon which a Lien is purported to be created by any
Security Document, and shall include the Mortgaged Properties.
"Collateral Agent" shall have the meaning assigned to such term in the
preamble.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Commitment Fee Rate" shall mean a rate per annum equal to 1/2 of 1%.
"Commitment Letter" shall mean the Commitment Letter dated as of October
25, 2006, among Credit Suisse Securities (USA) LLC, Credit Suisse and the
Borrower.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated April 17, 2007, as supplemented.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated
6
Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii)
consolidated income tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) any non-cash charges
(other than the write-down of current assets) for such period (provided that to
the extent that all or any portion of the income of any person is excluded from
Consolidated Net Income pursuant to the definition thereof for all or any
portion of such period any amounts set forth in the preceding clauses (i)
through (iv) that are attributable to such person shall not be included for
purposes of this definition for such period or portion thereof) (v) non-cash
compensation charge arising from any grants of stock, stock options or other
equity-based awards, (vi) expenses related to the Acquisition, including (A)
employee compensation for the period from the Closing Date to the date that is
270 days thereafter to be paid to employees identified for termination; (B)
other severance costs and accrued vacation for terminated employees, (C)
retention bonuses, (D) lease termination expenses and other restructuring
charges, and (E) fees for Acquisition-related and/or integration-related
services; provided, however, in each case, that such charges and expenses are
(1) incurred within eighteen months following the Closing Date and (2)
identified in reasonable detail in a certificate of the Borrower's chief
financial officer, (vii) any non-cash decrease in consolidated revenues during
such period resulting from the following purchase accounting adjustments made in
accordance with GAAP in connection with the Acquisition: (A) loss of deferred
revenue of the Borrower representing the difference between revenues of the
Borrower which would have been amortized into income from deferred revenue
(without giving effect to purchase accounting adjustments) and the actual
recognized revenues of the Borrower as of the Closing Date (giving effect to
purchase accounting adjustments), and (B) the adjustment resulting from changes
in revenue recognition as a result of transitional changes in licensing
methodology, (viii) any other extraordinary, unusual or non-recurring losses or
charges; provided, however, in each case, that such charges and expenses are
identified in reasonable detail in a certificate of the Borrower's chief
financial officer, and (ix) without duplication, any foreign currency exchange
losses in the ordinary course of business and any losses on the sale of assets
or business outside of the ordinary course of business, and minus (b) without
duplication (i) all cash payments made during such period on account of
reserves, restructuring charges and other non-cash charges added to Consolidated
Net Income pursuant to clause (a)(iv) above in a previous period and (ii) to the
extent included in determining such Consolidated Net Income, any foreign
currency exchange gains in the ordinary course of business and any extraordinary
gains and any non-cash credits (other than amortization of deferred revenue and
other operating revenue and reversal of current liabilities) for such period,
all determined on a consolidated basis in accordance with GAAP; provided that
for purposes of calculating Consolidated EBITDA for any period (A) the
Consolidated EBITDA of any Acquired Entity acquired by the Borrower, Holdings or
any Subsidiary pursuant to a Permitted Acquisition during such period shall be
included on a pro forma basis for such period (assuming the consummation of such
acquisition and the incurrence or assumption of any Indebtedness in connection
therewith occurred as of the first day of such period) and (B) the Consolidated
EBITDA of any person or line of business sold or otherwise disposed of by the
Borrower, Holdings or any Subsidiary during such period for shall be excluded
for such period (assuming the consummation of such sale or other disposition and
the repayment of any Indebtedness in connection therewith occurred as of the
first day of such period).
"Consolidated Interest Expense" shall mean, for any period, the sum of (a)
the interest expense (including imputed interest expense in respect of Capital
Lease Obligations and
7
Synthetic Lease Obligations) of the Borrower, Holdings and the Subsidiaries for
such period (including all commissions, discounts and other fees and charges
owed by the Borrower and the Subsidiaries with respect to letters of credit and
bankers' acceptance financing), net of interest income, in each case determined
on a consolidated basis in accordance with GAAP, plus (b) any interest accrued
during such period in respect of Indebtedness of the Borrower, Holdings or any
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP. For
purposes of the foregoing, interest expense shall be determined after giving
effect to any net payments made or received by the Borrower, Holdings or any
Subsidiary with respect to interest rate Hedging Agreements.
"Consolidated Net Income" shall mean, for any period, the net income or
loss of the Borrower, Holdings and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by the Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or
constitutional documents or any agreement, instrument, judgment, decree,
statute, rule or governmental regulation applicable to such Subsidiary, (b)
except to the extent otherwise provided in paragraph (A) of the last proviso in
the definition of "Consolidated EBITDA", the income or loss of any person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower, Holdings or any Subsidiary or the date that such
person's assets are acquired by the Borrower, Holdings or any Subsidiary, (c)
the income of any person (other than a Subsidiary) in which any other person
(other than the Borrower, Holdings or a wholly owned Subsidiary or any director
holding qualifying shares in accordance with applicable law) has an interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower, Holdings or a wholly owned Subsidiary by such person
during such period, and (d) any gains or losses attributable to sales of assets
out of the ordinary course of business.
"Continuing Directors" shall mean, at any time, any member of the board of
directors of Holdings who (a) was a member of such board of directors on the
Closing Date, after giving effect to the Acquisition, or (b) was nominated for
election or elected to such board of directors with the approval of a majority
of the Continuing Directors who were members of such board of directors at the
time of such nomination or election.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Current Assets" shall mean, at any time, the consolidated current assets
(other than cash and Permitted Investments) of Holdings, the Borrower and the
Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated current
liabilities of Holdings, the Borrower and the Subsidiaries at such time, but
excluding, without duplication,
8
(a) the current portion of any long-term Indebtedness and (b) outstanding
Revolving Loans and Swingline Loans.
"Default" shall mean any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would constitute an Event of
Default.
"Documentation Agent" shall have the meaning assigned to such term in the
preamble.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated, formed or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"Environmental Laws" shall mean with respect to the applicable person, all
Federal, state, local and foreign laws (including, without limitation, statutes,
common law and laws and regulations of the European Union), treaties,
regulations, rules, ordinances, codes, decrees, judgments, directives, orders
(including consent orders), and agreements in each case, relating to protection
of the environment, natural resources, human health and safety or the presence,
Release of, threatened Release, or exposure to, Hazardous Materials, or the
generation, manufacture, processing, distribution, use, treatment, storage,
transport, recycling or handling of, or the arrangement for such activities with
respect to, Hazardous Materials.
"Environmental Liability" shall mean all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release or threatened Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Environmental Permit" shall mean any Permit under Environmental Law.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests, beneficial interests in a trust or other equity
interests in any person, or any obligations convertible into or exchangeable
for, or giving any person a right, option or warrant to acquire, such equity
interests or such convertible or exchangeable obligations.
"Equity Issuance" shall mean any issuance or sale by Holdings or the
Borrower of any Equity Interests of Holdings or the Borrower, as applicable, or
the receipt by Holdings or the Borrower of any capital contribution, as
applicable, except in each case for (a) in the case of the Borrower, any
issuance or sale to, or any receipt of any capital contribution from, Holdings,
(b) any issuance by Holdings of directors' qualifying shares, (c) sales or
issuances of common stock, or options to purchase common stock, of Holdings to
management, directors or employees of Holdings, the Borrower or any Subsidiary
under any employee stock option or stock purchase plan or employee benefit plan
in existence from time to time, (d) sales or issuance of common stock of
Holdings to Permitted Holders, (e) any issuance or sale of any Equity Interest
of
9
Holdings as contemplated by the Purchase Agreement as in effect as of the
Closing Date and (f) any issuance or sale of any Equity Interest of Holdings
pursuant to the Irish Recapitalization or as consideration for a Permitted
Acquisition.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Tax Code, or solely for purposes of Section
302 of ERISA and Section 412 of the Tax Code, is treated as a single employer
under Section 414 of the Tax Code.
"ERISA Event" shall mean (a) the occurrence of any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Benefit Plan (other than an event for which the 30-day notice
period is waived); (b) the existence with respect to any Benefit Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Tax Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Tax Code or Section 303(d) of ERISA of an application for a waiver
of the minimum funding standard with respect to any Benefit Plan; (d) the
incurrence by the Borrower or any of its ERISA Affiliates of any material
liability under Title IV of ERISA with respect to the termination of any Benefit
Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Benefit Plan or Multiemployer Plan; (e) the receipt by the
Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of
any notice relating to the intention to terminate any Benefit Plan or Plans or
to appoint a trustee to administer any Benefit Plan; (f) the adoption of any
amendment to a Benefit Plan that would require the provision of security
pursuant to Section 401(a)(29) of the Tax Code or Section 307 of ERISA; (g) the
receipt by the Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of any material Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the
occurrence of a "prohibited transaction" with respect to which Holdings, the
Borrower or any of the Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Tax Code) or with respect to which Holdings, the
Borrower or any such Subsidiary could otherwise be liable and is likely to
result in material liability for Holdings and the Subsidiaries; or (i) any other
event or condition with respect to a Benefit Plan or Multiemployer Plan that
could result in material liability of Holdings, the Borrower or any Subsidiary.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year and (ii) the decrease, if any, in Current Assets minus Current
Liabilities from the beginning to the end of such fiscal
10
year over (b) the sum, without duplication, of (i) the amount of any Taxes
payable in cash by Holdings, the Borrower and the Subsidiaries with respect to
such fiscal year, (ii) Consolidated Interest Expense for such fiscal year
payable in cash, (iii) Capital Expenditures made in cash in accordance with
Section 6.10 during such fiscal year, except to the extent financed with the
proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation
proceeds or other proceeds that would not be included in Consolidated EBITDA,
(iv) permanent repayments of Indebtedness (other than mandatory prepayments of
Loans under Section 2.13) made by Holdings, the Borrower and the Subsidiaries
during such fiscal year, but only to the extent that such prepayments by their
terms cannot be reborrowed or redrawn and do not occur in connection with a
refinancing of all or any portion of such Indebtedness and (v) the increase, if
any, in Current Assets minus Current Liabilities from the beginning to the end
of such fiscal year.
"Excluded Foreign Subsidiaries" shall mean, at any time, (a) any Foreign
Subsidiary for which the execution of a guaranty of the Obligations by such
person or the granting of Liens on assets of such person to secure the
Obligations would result in material adverse tax consequences to Holdings and
its Subsidiaries as determined by the Borrower in its reasonable discretion or
(b) any Foreign Subsidiary that (i) contributed 2% or less (or 2.5% or less in
the case of SkillSoft Asia Pacific PTY LTD) of Consolidated EBITDA for the
period of four fiscal quarters most recently ended on or prior to the date of
determination, and (ii) had assets (excluding intercompany balances)
representing 2% or less (or 2.5% or less in the case of SkillSoft Asia Pacific
PTY LTD) of total assets (excluding intercompany balances) for Holdings and its
Subsidiaries on a consolidated basis on the last day of the most recent fiscal
quarter ended on or prior to the date of determination. Notwithstanding the
foregoing, (x) those Foreign Subsidiaries listed as Subsidiary Guarantors on
Schedule 1.01 shall not be Excluded Foreign Subsidiaries, (y) Borrower may elect
to have any otherwise Excluded Foreign Subsidiary become a Loan Party to the
extent all the requirements of Section 5.09(c) are satisfied with respect to
such otherwise Excluded Foreign Subsidiary and (z) those Foreign Subsidiaries
acquired in connection with a Permitted Acquisition which are required to comply
with Section 5.09(c) shall not be Excluded Foreign Subsidiaries.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income as a result of a present or
former connection between such recipient and the jurisdiction imposing such tax
(or any political subdivision thereof), other than any such connection arising
solely from such recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document, (b) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.21(a)), any United States
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.20(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.20(a) and (c) any United
States withholding tax that is imposed on amounts payable to any
11
Lender that is a United States person as defined in Section 7701(a)(30) of the
Tax Code that is attributable to such Lender's failure to comply with Section
2.20(f).
"Extraordinary Receipts" shall mean any payment in respect of any purchase
price adjustment in favor of a Loan Party (including without limitation, a
payment made to a Loan Party pursuant to the Purchase Agreement or any similar
agreement in connection with a Permitted Acquisition) or any indemnification
payment in favor of any Loan Party pursuant to the Purchase Agreement or any
similar agreement in connection with a Permitted Acquisition (other than amounts
paid as a result of a claim by a Loan Party for indemnification under the
Purchase Agreement or any similar agreement in connection with a Permitted
Acquisition to the extent the amounts so received are applied by such Loan Party
for the purpose of (a) replacing, repairing or restoring any assets or
properties of such Loan Party or satisfying the condition giving rise to the
claim for indemnification or (b) payment of (or reimbursement of payments made
for) claims and settlements to third persons not an Affiliate of a Loan Party).
"Facility" shall mean each of the (a) Term Loan Facility and (b) Revolving
Credit Facility.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated as of October 25, 2006, among
the Borrower, Credit Suisse and Credit Suisse Securities (USA) LLC.
"Fees" shall mean the Commitment Fees, the Administrative Agent Fees, the
L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer,
principal accounting officer, treasurer or controller of such person.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the United
States of America.
"Governmental Authority" shall mean the government of the United States of
America, Canada or any other nation, any political subdivision thereof, whether
state, provincial or local,
12
the European Union and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Granting Lender" shall have the meaning assigned to such term in Section
9.04(i).
"Guarantee" of or by any person (the "guarantor") shall mean any
obligation, contingent or otherwise, of (a) the guarantor or (b) another person
(including any bank under a letter of credit) to induce the creation of which
the guarantor has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation, contingent or otherwise, of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (iv) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation or (v) to otherwise assure or hold harmless the owner
of such Indebtedness or other obligation against loss in respect thereof;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee and Collateral Agreement" shall mean the Guarantee and
Collateral Agreement in the form of Exhibit E, to be executed and delivered by
the Borrower, Holdings and certain other Subsidiaries of Holdings.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean any petroleum (including crude oil or
fraction thereof) or petroleum products or byproducts, or any pollutant,
contaminant, chemical, compound, constituent, or hazardous, toxic or other
substances, materials or wastes defined, or regulated as such by, or pursuant
to, any Environmental Law, or requires removal, remediation or reporting under
any Environmental Law, including asbestos, or asbestos containing material,
radon or other radioactive material, polychlorinated biphenyls and urea
formaldehyde insulation.
"Hedging Agreement" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies, fuel or
other commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions;
provided, however, that no phantom stock or similar plan providing for payments
and on account of services provided by current or former directors, officers,
employees or consultants of Holdings, the Borrower or any Subsidiary shall be a
Hedging Agreement.
13
"Holdings" shall have the meaning assigned to such term in the preamble.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes, loan stock or similar instruments, (c) all obligations of
such person under conditional sale or other title retention agreements relating
to property or assets acquired by such person, (d) all obligations of such
person in respect of the deferred purchase price of property or services (other
than current trade accounts payable incurred in the ordinary course of
business), (e) all obligations of such person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Equity Interests in
such person, (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such person of Indebtedness of others, (h) all Capital Lease Obligations and
Synthetic Lease Obligations of such person, (i) all obligations, contingent or
otherwise, of such person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such person in respect of bankers' acceptances. The Indebtedness of any person
shall include the Indebtedness of any other person (including any partnership in
which such person is a general partner) to the extent such person is liable
therefor as a result of such person's ownership interest in, or other
relationship with, such other person, except to the extent the terms of such
Indebtedness provide that such person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes and Other
Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Information" shall have the meaning assigned to such term in Section 9.16.
"Intellectual Property Collateral" shall have the meaning assigned to such
term in the Guarantee and Collateral Agreement.
"Intellectual Property Security Agreement" shall mean all intellectual
property security agreements to be executed and delivered by any Loan Parties.
"Interest Coverage Ratio" shall mean, on any date of determination, the
ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date, taken as one accounting
period, to (b) Consolidated Interest Expense for the period of four consecutive
fiscal quarters ended on or prior to such date, taken as one accounting period.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan
(including Swingline Loans), the last Business Day of each March, June,
September and December and (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing.
14
"Interest Period" shall mean, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is 1, 2, 3 or 6 months thereafter
(or 9 or 12 months thereafter, if, at the time of the relevant Borrowing, an
interest period of such duration is available to all Lenders participating
therein) (or such other duration as otherwise agreed to by the Administrative
Agent with respect to Borrowings on the Closing Date), as the Borrower may
elect; provided, however, that (a) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Investments" shall have the meaning assigned to such term in Section 6.04.
"Irish Guarantors" shall mean, collectively, Holdings, an Irish public
limited company, and each of CBT (Technology) Limited, Fidalco Limited and
SkillSoft Ireland Limited, each an Irish private limited company.
"Irish Recapitalization" shall mean an application to the High Court of
Ireland to reduce the share premium account of Holdings so as to thereby create
reserves capable of distribution.
"Irish Security Documents" shall mean the Irish law guarantee and indemnity
dated as of the date hereof entered into by Irish Guarantors in favor of the
Collateral Agent, the Irish law debenture dated as of the date hereof issued in
favor of the Collateral Agent and each of the other Irish law governed
guarantees, security agreements, pledges, debentures and other documents and
instruments executed and delivered by Holdings or any Irish subsidiary of
Holdings in connection with this Agreement or pursuant to Sections 5.09 or 5.10.
"Issuing Bank" shall mean, as the context may require, (a) Credit Suisse,
in its capacity as the issuer of Letters of Credit hereunder, and (b) any other
Lender that may become an Issuing Bank pursuant to Section 2.23(i) or Section
2.23(k), with respect to Letters of Credit issued by such Lender. The Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term "Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
15
"L/C Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all Letters of Credit at such time and (b) the aggregate
amount of all L/C Disbursements that have not been reimbursed at such time. The
L/C Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate L/C Exposure at such time.
"L/C Fee Payment Date" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lender Addendum" shall mean, with respect to any initial Lender, a Lender
Addendum in the form of Exhibit F, or such other form as may be supplied by the
Administrative Agent, to be executed and delivered by such Lender on the Closing
Date.
"Lenders" shall mean (a) the persons that deliver a Lender Addendum (other
than any such person that has ceased to be a party hereto pursuant to an
Assignment and Acceptance) and (b) any person that has become a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise requires,
the term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23.
"Leverage Ratio" shall mean, on any date of determination, the ratio of (a)
Total Debt on such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date, taken
as one accounting period.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., (London time), on the date that is two Business Days
prior to the commencement of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as set
forth by the Bloomberg Information Service or any successor thereto or any other
service selected by the Administrative Agent which has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by the Administrative Agent at approximately 11:00 a.m. (London time) on the
date that is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance,
collateral assignment, charge or security interest in, on or of such asset, (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party (other than any Loan Party) with respect to such
securities.
16
"Loan Documents" shall mean this Agreement, the Fee Letter, the Post
Closing Matters Agreement and the Security Documents.
"Loan Parties" shall mean Holdings, the Borrower and each Subsidiary
Guarantor.
"Loans" shall mean the Revolving Loans, the Term Loans and the Swingline
Loans.
"Majority Facility Lenders" shall mean, with respect to any Facility, the
holders of a majority of the aggregate unpaid principal amount of the Term Loans
or the Aggregate Revolving Credit Exposure, as the case may be, outstanding
under such Facility (or, in the case of the Revolving Credit Facility, prior to
the termination of the Revolving Credit Commitments, the holders of a majority
of the Total Revolving Credit Commitment).
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean a material adverse condition or
material adverse change in or materially and adversely affecting (a) the
business, assets, liabilities, operations or financial condition of Holdings,
the Borrower and the Subsidiaries, taken as a whole, or (b) the validity or
enforceability of any of the Loan Documents or the rights and remedies of the
Administrative Agent, the Collateral Agent or the Secured Parties thereunder.
"Material Indebtedness" shall mean Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the Borrower and the Subsidiaries in a principal
amount exceeding $5,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of Holdings, the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Holdings, the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" shall mean, with respect to any Subsidiary that is
subject to events described in Sections 7(g) and (h), such Subsidiary shall be
deemed to be a "Material Subsidiary" to the extent that any such Subsidiary (a)
individually either (i) contributed 3% or more of Consolidated Net Income for
the period of four fiscal quarters most recently ended on or prior to the date
of determination and/or (ii) has assets (excluding intercompany balances)
representing 3% or more of total assets (excluding intercompany balances) for
Holdings and its Subsidiaries on a consolidated basis on the last day of the
most recent fiscal quarter ended on or prior to the date of determination, or
(b) in the aggregate with other Subsidiaries subject to such events described in
Sections 7(g) and (h), either (i) contributed 7.5% or more of Consolidated Net
Income for the period of four fiscal quarters most recently ended on or prior to
the date of determination and/or (ii) has assets (excluding intercompany
balances) representing 7.5% or more of total assets (excluding intercompany
balances) for Holdings and its Subsidiaries on a consolidated basis on the last
day of the most recent fiscal quarter ended on or prior to the date of
determination.
"Maximum Rate" shall have the meaning assigned to such term in Section
9.09.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
17
"Mortgaged Properties" shall mean each parcel of real property and the
improvements thereto owned by a Loan Party with respect to which a Mortgage is
granted pursuant to Section 5.09 or Section 5.10.
"Mortgages" shall mean the mortgages or deeds of trust, assignments of
leases and rents and other security documents granting a Lien on any Mortgaged
Property to secure the Obligations as are reasonably satisfactory to the
Collateral Agent, as the same may be amended, supplemented, replaced or
otherwise modified from time to time in accordance with this Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale or
Recovery Event, the proceeds thereof in the form of cash and Permitted
Investments (including any such proceeds subsequently received (as and when
received) in respect of noncash consideration initially received), net of (i)
selling expenses (including reasonable broker's fees or commissions, legal fees,
transfer and similar taxes incurred by Holdings, the Borrower and the
Subsidiaries in connection therewith and the Borrower's good faith estimate of
income taxes paid or payable in connection with such sale, after taking into
account any available tax credits or deductions and any tax sharing
arrangements), (ii) amounts provided as a reserve, in accordance with GAAP,
against any liabilities under any indemnification obligations or purchase price
adjustment associated with such Asset Sale (provided that, to the extent and at
the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds) and (iii) the principal amount, premium or
penalty, if any, interest and other amounts on any Indebtedness for borrowed
money which is secured by the asset sold in such Asset Sale and which is
required to be repaid with such proceeds (other than any such Indebtedness
assumed by the purchaser of such asset); provided, however, that, if (x) the
Borrower shall deliver a certificate of a Financial Officer of the Borrower to
the Administrative Agent within ten (10) days of receipt thereof setting forth
the Borrower's intent to reinvest such proceeds in productive assets of a kind
then used or usable in the business of Holdings, the Borrower and the
Subsidiaries within 270 days of receipt of such proceeds and (y) no Default or
Event of Default shall have occurred and shall be continuing at the time of such
certificate or at the proposed time of the application of such proceeds, such
proceeds shall not constitute Net Cash Proceeds except to the extent not so used
at the end of such 270-day period, at which time such proceeds shall be deemed
to be Net Cash Proceeds; (b) with respect to any issuance or disposition of
Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all taxes
and reasonable and customary fees, commissions, costs and other expenses
incurred by Holdings, the Borrower and the Subsidiaries in connection therewith;
and (c) with respect to any Extraordinary Receipts, the cash proceeds thereof,
net of all taxes and reasonable and customary fees, costs and other expenses
incurred by Holdings, the Borrower and the Subsidiaries in connection therewith.
"Non-Core Netg Assets" shall mean the assets set forth on Schedule 1.02.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee and Collateral Agreement and the other Security Documents.
18
"Other Taxes" shall mean, in respect of any jurisdiction, any and all
present or future stamp or documentary duties or taxes or any other excise,
value added taxes or property taxes, charges or similar levies (including
interest, fines, penalties and additions to tax) arising from any payment made
under any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document, except for any Excluded Taxes.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" shall mean the Pre-Closing Perfection Diligence
Certificate substantially in the form of Exhibit G or any other form approved by
the Collateral Agent.
"Perfection Requirements" shall mean the making or the procuring of the
appropriate registrations, filings, endorsements, notarizations, stampings
and/or notifications of the Security Documents and/or the Liens purported to be
created thereunder.
"Permits" shall mean any and all franchises, licenses, leases, permits,
approvals, notifications, certifications, registrations, authorizations,
exemptions, qualifications, easements, rights of way, Liens and other rights,
privileges and approvals required under any Requirement of Law.
"Permitted Acquisition" shall mean the acquisition by any Loan Party of all
or substantially all the assets of a person or line of business of such person,
or all of the Equity Interests of a person (referred to herein as the "Acquired
Entity"); provided that (a) the Acquired Entity shall be a going concern and
shall be in a similar line of business (or reasonably related extensions
thereof) as that of the Loan Parties as conducted during the current and most
recently concluded calendar year; (b) at the time of such transaction both
before and after giving effect thereto, (i) no Event of Default or Default shall
have occurred and be continuing; (ii) the Borrower would be in compliance with
the covenant set forth in Section 6.12 and the Leverage Ratio would be no
greater than the Leverage Ratio specified for such period under Section 6.12
(less 0.25), in each case as of the most recently completed period ending prior
to such transaction for which the financial statements and certificates required
by Section 5.04(a) or 5.04(b) were required to be delivered, after giving pro
forma effect to such transaction and to any other event occurring after such
period as to which pro forma recalculation is appropriate (including any other
transaction described in this definition occurring after such period) as if such
transaction (and the occurrence or assumption of any Indebtedness in connection
therewith) had occurred as of the first day of such period (by way of example,
if the Leverage Ratio for such period set forth in Section 6.12 is 3.25:1.0, the
Leverage Ratio required under this clause (ii) shall be no greater than
3.00:1.0) and (iii) there must be at least $10,000,000 of unused and available
Revolving Credit Commitments; (c) Holdings and the Subsidiaries shall not incur
or assume any Indebtedness in connection with such acquisition, except as
permitted by Section 6.01; and (d) the Loan Parties shall comply, and shall
cause the Acquired Entity to comply, with the applicable provisions of Sections
5.09 and 5.10 and the Security Documents, whether or not such Acquired Entity
would otherwise be an Excluded Foreign Subsidiary; provided, that the Loan
Parties and such Acquired Entity shall not have to comply with such Sections
5.09 and 5.10 and the Security Documents to the extent (i) such Acquired Entity,
on a pro forma basis, would be deemed an Excluded Foreign Subsidiary under
clauses (a) or (b) of the definition thereof and (ii) the amount
19
of cash consideration paid to acquire such Foreign Subsidiary does not exceed
$5,000,000 in the aggregate for all Permitted Acquisitions of Foreign
Subsidiaries during the term of this Agreement. To the extent the Leverage Ratio
for any period calculated under Section 6.12 is less than 2.0:1.0, the amount
set forth in the immediately preceding clause (ii) shall be increased to
$10,000,000, so long as the Leverage Ratio remains less than 2.0:1.0 (and any
increase in the Leverage Ratio above such level shall return such amount under
such clause (ii) to its original level).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper consistent with the investment
policy described in clause (g) below;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, the Administrative Agent or any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria of clause (c) above;
(e) investments in "money market funds" within the meaning of Rule
2a-7 of the Investment Company Act of 1940, as amended, substantially all
of whose assets are invested in investments of the type described in
clauses (a) through (d) above;
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management in
investments of a type analogous to the foregoing; and
(g) other investments consistent with the investment policy delivered
to the Administrative Agent and Lenders prior to the Closing Date, or any
changes from time to time made thereto as approved by Administrative Agent.
"Permitted Refinancing Indebtedness" shall mean Indebtedness issued or
incurred (including by means of the extension or renewal of existing
Indebtedness) to refinance, refund, extend, renew or replace existing
Indebtedness or Indebtedness assumed in connection with a Permitted Acquisition
as permitted by Section 6.01 ("Refinanced Indebtedness"); provided that (a) the
principal amount of such refinancing, refunding, extending, renewing or
replacing Indebtedness is not greater than the principal amount of such
Refinanced Indebtedness plus the
20
amount of any premiums or penalties and accrued and unpaid interest paid thereon
and reasonable fees and expenses, in each case associated with such refinancing,
refunding, extension, renewal or replacement, (b) such refinancing, refunding,
extending, renewing or replacing Indebtedness has a final maturity that is no
sooner than, and a weighted average life to maturity that is no shorter than,
such Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any
Guarantees thereof are subordinated to the Obligations, such refinancing,
refunding, extending, renewing or replacing Indebtedness and any Guarantees
thereof remain so subordinated on terms no less favorable to the Lenders, (d)
the obligors in respect of such Refinanced Indebtedness immediately prior to
such refinancing, refunding, extending, renewing or replacing are the only
obligors on such refinancing, refunding extending, renewing or replacing
Indebtedness and (e) such refinancing, refunding, extending, renewing or
replacing Indebtedness contains covenants and events of default and is benefited
by Guarantees, if any, which, taken as a whole, are determined in good faith by
a Financial Officer of the Borrower to be no less favorable to Holdings, the
Borrower or the applicable Subsidiary and the Lenders in any material respect
than the covenants and events of default or Guarantees, if any, in respect of
such Refinanced Indebtedness.
"person" shall mean any natural person, corporation, trust, business trust,
joint venture, joint stock company, association, company, limited liability
company, partnership, Governmental Authority or other entity.
"Pledged Collateral" shall have the meaning assigned to such term in the
Guarantee and Collateral Agreement and in any other Security Documents.
"Post Closing Matters Agreement" shall mean that certain Post Closing
Matters Agreement dated as of the date hereof among Holdings, Borrower and the
Administrative Agent.
"Prime Rate" shall mean the rate of interest per annum announced from time
to time by Credit Suisse as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective as of the
opening of business on the date such change is announced as being effective. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually available.
"Pro Rata Percentage" of any Revolving Credit Lender, at any time, shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have expired or been terminated, the Pro Rata Percentages of
any Revolving Credit Lender shall be determined on the basis of the Revolving
Credit Commitments most recently in effect prior thereto.
"Purchase Agreement" shall mean the stock and asset purchase agreement
dated as of October 25, 2006, among the Sellers, Holdings and the Borrower, as
amended and in effect from time to time.
"Real Property" shall mean all Mortgaged Property and all other real
property owned or leased from time to time by Holdings, the Borrower and the
Subsidiaries or in which they have an interest.
21
"Recovery Event" shall mean any settlement of or payment in respect of any
property or casualty insurance claim or any taking under power of eminent domain
or by condemnation or similar proceeding of or relating to any property or asset
of Holdings, the Borrower or any Subsidiary Guarantor.
"Register" shall have the meaning assigned to such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Related Parties" shall mean, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Release" shall mean any release, spill, seepage, emission, leaking,
pumping, injection, pouring, emptying, deposit, disposal, discharge, dispersal,
dumping, escaping, leaching, or migration into, onto or through the environment
or within or upon any building, structure, facility or fixture.
"Repayment Date" shall have the meaning given such term in Section 2.11(a).
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments and Term Loan Commitments representing at least a majority of the
sum of all Loans outstanding (excluding Swingline Loans), L/C Exposure,
Swingline Exposure and unused Revolving Credit Commitments and Term Loan
Commitments at such time.
"Required Prepayment Percentage" shall mean (a) in the case of any Asset
Sale or Recovery Event, 100%; (b) in the case of any Equity Issuance, 50%; (c)
in the case of any issuance or other incurrence of Indebtedness, 100%; (d) in
the case of any Excess Cash Flow, 50%; and (e) in the case of Extraordinary
Receipts, 100%.
"Requirement of Law" shall mean as to any person, the governing documents
of such person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority in any jurisdiction, in
each case applicable to or binding upon such person or any of its Real Property
or personal property or to which such person or any of its property of any
nature is subject.
22
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of Holdings, the Borrower
or any Subsidiary Guarantor, the payment, prepayment, repurchase or defeasance
of which is restricted under Section 6.09(b).
"Restricted Payment" shall mean any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, defeasance, retirement, acquisition,
cancellation or termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in Holdings, the Borrower or any Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans (and to acquire
participations in Letters of Credit and Swingline Loans) hereunder as set forth
on the Lender Addendum delivered by such Lender, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Revolving Credit
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lenders, at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender, plus the aggregate amount at such time of such Lender's
L/C Exposure, plus the aggregate amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Facility" shall mean the Revolving Credit Commitments and
the extensions of credit made thereunder.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean May 14, 2012.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"Secured Parties" shall have the meaning assigned to such term in the
Guarantee and Collateral Agreement.
23
"Security Documents" shall mean the Guarantee and Collateral Agreement, the
Mortgages, the Intellectual Property Security Agreements, the Cayman Security
Documents, the Irish Security Documents, the UK Security Documents, the Canadian
Security Documents and each of the other guarantees, security agreements,
pledges, debentures, mortgages, consents and other instruments and documents
executed and delivered in connection with this Agreement or pursuant to Section
5.09 or Section 5.10.
"Sellers" shall mean, collectively, T.N.H. France SARL, T.N.H. Holdings
GmbH, the Thomson Corporation (Australia) Pty Ltd., Thomson Information &
Solutions Limited, Thomson Learning Inc. and Xxxxxxxx Global Resources.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch, Affiliate
or other fronting office making or holding a Loan) is subject for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, limited liability company,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b) that is, at the
time any determination is made, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of Holdings.
"Subsidiary Guarantor" shall mean, initially, each Subsidiary specified on
Schedule 1.01 and, at any time thereafter, shall include each other Subsidiary
that becomes a guarantor pursuant to Sections 5.09, but shall exclude each
Excluded Foreign Subsidiary.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to
make loans pursuant to Section 2.22, as the same may be reduced from time to
time pursuant to Section 2.09.
"Swingline Exposure" shall mean, at any time, the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
24
"Swingline Lender" shall mean Credit Suisse, acting in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant
to Section 2.22.
"Syndication Agent" shall have the meaning assigned to such term in the
preamble.
"Synthetic Lease Obligations" shall mean all monetary obligations of a
person under (a) a so-called synthetic, off-balance sheet or tax retention lease
or (b) an agreement for the use or possession of any property (whether real,
personal or mixed) creating obligations which do not appear on the balance sheet
of such person, but which, upon the insolvency or bankruptcy of such person,
would be characterized as Indebtedness of such person (without regard to
accounting treatment).
"Synthetic Purchase Agreement" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which Holdings, the Borrower
or any Subsidiary is or may become obligated to make (a) any payment in
connection with a purchase by any third party from a person other than Holdings,
the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness
or (b) any payment (other than on account of a permitted purchase by it of any
Equity Interest or Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of Holdings,
the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed
to be a Synthetic Purchase Agreement.
"Target" shall mean the Business, Equity Interests and related assets and
liabilities to be acquired and assumed by Holdings and the Borrower pursuant to
the Acquisition Documents.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges, liabilities or withholdings imposed by any
Governmental Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Lender" shall mean a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Term Loans hereunder as set forth on
the Lender Addendum delivered by such Lender, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Term Loan Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial aggregate amount of the
Term Loan is $200,000,000.
25
"Term Loan Facility" shall mean the Term Loan Commitments and the Term
Loans made thereunder.
"Term Loan Maturity Date" shall mean May 14, 2013.
"Term Loans" shall mean the term loans made by the Lenders to the Borrower
pursuant to Section 2.01.
"Total Debt" shall mean, at any time, the aggregate amount of Indebtedness
of Holdings, the Borrower and the Subsidiaries outstanding at such time, in the
amount that would be reflected on a balance sheet prepared at such time on a
consolidated basis in accordance with GAAP.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time. The
initial Total Revolving Credit Commitment is $25,000,000.
"Transactions" shall mean, collectively, (a) the execution, delivery and
performance by the Loan Parties of the Loan Documents to which they are a party,
(b) the borrowings hereunder, the issuance of Letters of Credit and the use of
proceeds of each of the foregoing, (c) the granting of Liens pursuant to the
Security Documents, (d) the Acquisition and the other Acquisition Transactions
and (e) any other transactions related to or entered into in connection with any
of the foregoing.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code.
"UK Debenture" means the English law debenture dated on or about the date
of this Agreement entered into by UK Guarantor in favour of the Collateral
Agent.
"UK Guarantor" means SkillSoft U.K. Limited, a corporation organized under
the laws of England and Wales (company number 02051729).
"UK Security Documents" means, collectively, (i) the UK Debenture, (ii) the
UK Share Charge and (iii) each of the other guarantees, security agreements,
pledges, debentures and other documents and instruments executed and delivered
by the UK Guarantor in connection with this Agreement or pursuant to Sections
5.09 or 5.10.
"UK Share Charge" means the English law share charge dated on or about the
date of this Agreement entered into by Fidalco Limited over the shares it holds
in the UK Guarantor in favour of the Collateral Agent.
"Uniform Customs" shall have the meaning assigned to such term in Section
9.07.
26
"wholly owned subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the Equity Interests are, at the time
any determination is being made, owned, controlled or held by such person or one
or more wholly owned subsidiaries of such person or by such person and one or
more wholly owned subsidiaries of such person; a "wholly owned Subsidiary" shall
mean any wholly owned subsidiary of the Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including", and
words of similar import, shall not be limiting and shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". The words "asset" and
"property" shall be construed as having the same meaning and effect and to refer
to any and all rights and interests in tangible and intangible assets and
properties of any kind whatsoever, whether real, personal or mixed, including
cash, securities, Equity Interests, accounts and contract rights. The words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision of this Agreement unless the context shall otherwise require. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any definition of, or reference to, any Loan
Document or any other agreement, instrument or document in this Agreement shall
mean such Loan Document or other agreement, instrument or document as amended,
restated, supplemented or otherwise modified from time to time (subject to any
restrictions on such amendments, restatements, supplements or modifications set
forth herein); (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders; and (c) all references to statutes, laws and
regulations shall include their respective amendments and restatements from time
to time.
SECTION 1.03 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving
27
Borrowing") or by Type (e.g., a "Eurocurrency Borrowing") or by Class and Type
(e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.04 Pro Forma Calculations. All pro forma calculations permitted
or required to be made by the Borrower or any Subsidiary pursuant to this
Agreement shall include only those adjustments that would be permitted or
required by Regulation S-X under the Securities Act of 1933, as amended,
together with those adjustments that (a) have been certified by a Financial
Officer of the Borrower as having been prepared in good faith based upon
reasonable assumptions and (b) are based on reasonably detailed written
assumptions reasonably acceptable to the Administrative Agent.
ARTICLE II.
The Credits
SECTION 2.01 Commitments. Subject to the terms and conditions hereof and
relying upon the representations and warranties set forth herein, (a) each Term
Lender agrees, severally and not jointly, to make a Term Loan to the Borrower on
the Closing Date in a principal amount not to exceed its Term Loan Commitment
and (b) each Revolving Credit Lender agrees, severally and not jointly, to make
Revolving Loans to the Borrower, at any time and from time to time after the
Closing Date and until the earlier of the Revolving Credit Maturity Date and the
termination of the Revolving Credit Commitment of such Revolving Credit Lender
in accordance with the terms hereof, in an aggregate principal amount at any
time outstanding that will not result in such Revolving Credit Lender's
Revolving Credit Exposure exceeding such Revolving Credit Lender's Revolving
Credit Commitment. Within the limits set forth in clause (b) of the preceding
sentence and subject to the terms, conditions and limitations set forth herein,
the Borrower may borrow, pay or prepay and reborrow Revolving Loans. The full
amount of the Term Loan Commitment must be drawn in a single drawing on the
Closing Date and amounts paid or prepaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02 Loans. (a) Each Loan (other than Swingline Loans) shall be
made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the
applicable Class; provided, however, that the failure of any Lender to make any
Loan required to be made by it shall not in itself relieve any other Lender of
its obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Except for Loans deemed made pursuant
to Section 2.02(f) and subject to Section 2.22 relating to Swingline Loans, the
Loans comprising any Borrowing shall be in an aggregate principal amount that is
(i) an integral multiple of $500,000 and not less than $1,000,000 or (ii) equal
to the remaining available balance of the applicable Commitments.
(b) Subject to Section 2.08 and Section 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may, at its option, make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be
28
outstanding at the same time; provided, however, that the Borrower shall not be
entitled to request any Borrowing that, if made, would result in more than ten
Eurodollar Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f) and
subject to Section 2.22 relating to Swingline Loans, each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 12:00 Noon, New York City
time, and the Administrative Agent shall promptly credit the amounts so received
to an account designated by the Borrower in the applicable Borrowing Request or,
if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) of this Section and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have made funds
available as contemplated in the preceding sentence, to the extent that such
Lender shall not have made such portion available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower to but excluding the date such amount is repaid to the Administrative
Agent at (i) in the case of the Borrower, the interest rate applicable at the
time to the Loans comprising such Borrowing or (ii) in the case of such Lender,
a rate determined by the Administrative Agent to represent its cost of overnight
or short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) with respect to a Letter of
Credit within the time specified in such Section, the Issuing Bank will promptly
notify the Administrative Agent of the L/C Disbursement and the Administrative
Agent will promptly notify each Revolving Credit Lender of such L/C Disbursement
and its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by
wire transfer of immediately available funds to the Administrative Agent not
later than 2:00 p.m., New York City time, on such date (or, if such Revolving
Credit Lender shall have received such notice later than 12:00 (noon), New York
City time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount
29
equal to such Lender's Pro Rata Percentage of such L/C Disbursement (it being
understood that such amount shall be deemed to constitute an ABR Revolving Loan
of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to the Issuing Bank
amounts so received by it from the Revolving Credit Lenders. The Administrative
Agent will promptly pay to the Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit
Lender makes any payment pursuant to this paragraph; any such amounts received
by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such
payments and to the Issuing Bank, as their interests may appear. If any
Revolving Credit Lender shall not have made its Pro Rata Percentage of such L/C
Disbursement available to the Administrative Agent as provided above, such
Lender and the Borrower severally agree to pay interest on such amount, for each
day from and including the date such amount is required to be paid in accordance
with this paragraph to but excluding the date such amount is paid, to the
Administrative Agent for the account of the Issuing Bank at (i) in the case of
the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such
Lender, for the first such day, the Federal Funds Effective Rate, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03 Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall hand deliver or fax
to the Administrative Agent a duly completed Borrowing Request (a) in the case
of a Eurodollar Borrowing, not later than 12:00 Noon, New York City time, three
Business Days before a proposed Borrowing (except for Loans made on the Closing
Date, in which case such Borrowing Request shall be delivered or faxed on the
Closing Date) and (b) in the case of an ABR Borrowing, not later than 12:00
Noon, New York City time, one Business Day before a proposed Borrowing (except
for Loans made on the Closing Date, in which case such Borrowing Request shall
be delivered or faxed on the Closing Date). Notwithstanding anything herein to
the contrary, in no event shall any Borrowing made on the Closing Date have an
Interest Period in excess of one month unless agreed to by the Administrative
Agent, provided that in no event shall any Borrowing made on the Closing Date
have an Interest Period beyond June 30, 2007. Each Borrowing Request shall be
irrevocable, shall be signed by or on behalf of the Borrower and shall specify
the following information: (i) whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds are
to be disbursed (which shall be an account that complies with the requirements
of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such
Borrowing is to be a Eurodollar Borrowing, the initial Interest Period with
respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given in
accordance with this Section 2.03 (and the contents thereof), and of each
Lender's portion of the requested Borrowing.
30
SECTION 2.04 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the principal amount of each Term Loan of such Lender
made to the Borrower as provided in Section 2.11 and (ii) the then unpaid
principal amount of each Revolving Loan of such Lender made to the Borrower on
the Revolving Credit Maturity Date. The Borrower hereby unconditionally promises
to pay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan made to the Borrower on the earlier of the Revolving Credit
Maturity Date and the first date after such Swingline Loan is made that is the
15th day or the last day of a calendar month and is at least three Business Days
after such Swingline Loan is made.
(b) Each Lender shall maintain, in accordance with its usual practice, an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender to the Borrower from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of the sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans made to the Borrower in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it hereunder be evidenced by
a promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns in
the form of Exhibit J hereto. Notwithstanding any other provision of this
Agreement, in the event any Lender shall request and receive such a promissory
note, the interests represented by such note shall at all times (including after
any assignment of all or part of such interests pursuant to Section 9.04) be
represented by one or more promissory notes payable to the payee named therein
or its registered assigns.
SECTION 2.05 Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on each date on which any Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a
"Commitment Fee") equal to the Commitment Fee Rate on the average daily unused
amount of the Revolving Credit Commitments of such Lender (other than the
Swingline Commitment) during the preceding quarter (or other period commencing
with the date hereof or ending with the Revolving Credit Maturity Date or the
date on which the Commitments of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
31
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the date hereof and shall cease to accrue on the date on
which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein. For purposes of calculating Commitment Fees with
respect to Revolving Credit Commitments only, no portion of the Revolving Credit
Commitments shall be deemed utilized under Section 2.22 as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the fees in the amounts and at the times from time to time agreed to in
writing by the Borrower (or any Affiliate) and the Administrative Agent,
including pursuant to the Fee Letter (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein (each, an "L/C Fee Payment
Date") a fee (an "L/C Participation Fee") calculated on such Lender's Pro Rata
Percentage of the daily aggregate L/C Exposure (excluding the portion thereof
attributable to unreimbursed L/C Disbursements which are earning interim
interest pursuant to Section 2.23(h)) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Margin used to determine
the interest rate on Revolving Credit Borrowings comprised of Eurodollar Loans
pursuant to Section 2.06 and (ii) to the Issuing Bank with respect to each
outstanding Letter of Credit issued for the account of (or at the request of)
the Borrower a fronting fee, which shall accrue at the rate of 1/8 of 1% per
annum or such other rate as shall be separately agreed upon between the Borrower
and the Issuing Bank, on the drawable amount of such Letter of Credit, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date of
such Letter of Credit, as well as the Issuing Bank's standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit issued
for the account of (or at the request of) the Borrower or processing of drawings
thereunder (the fees in this clause (ii), collectively, the "Issuing Bank
Fees"). All L/C Participation Fees and Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06 Interest on Loans. (a) Subject to the provisions of
Section 2.06(d), the Loans comprising each ABR Borrowing, including each
Swingline Loan, shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when the
Alternate Base Rate is determined by reference to the Prime Rate and over a year
of 360 days at all other times) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin in effect from time to time.
32
(b) Subject to the provisions of Section 2.06(d), Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
(d) In the event that any financial statement or certificate delivered
pursuant to Section 5.04(d) is inaccurate, and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Margin for any period
(an "Applicable Period") than the Applicable Margin applied for such Applicable
Period, then (i) the Borrower shall immediately deliver to the Administrative
Agent a corrected financial statement and a corrected certificate for such
Applicable Period, (ii) the Applicable Period shall be determined based on the
corrected certificate for such Applicable Period, and (iii) the Borrower shall
immediately pay to the Administrative Agent the accrued additional interest
owing as a result of such increased Applicable Margin for such Applicable
Period, which payment shall be promptly applied by the Administrative Agent in
accordance with Section 2.17. This Section 2.06(d) shall not limit the rights of
the Agent or the Lenders with respect to Section 2.07 and Article VIII.
SECTION 2.07 Default Interest. If the Borrower shall default in the payment
of the principal of or interest on any Loan or any other amount becoming due
hereunder or under any other Loan Document, by acceleration or otherwise, the
Borrower shall on demand from time to time pay interest, to the extent permitted
by law, on such defaulted amount to but excluding the date of actual payment
(after as well as before judgment) (a) in the case of overdue principal, at the
rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per
annum and (b) in all other cases, at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, when determined by reference to the Prime Rate and over a year of 360
days at all other times) equal to the rate that would be applicable to an ABR
Revolving Loan plus 2.00%.
SECTION 2.08 Alternate Rate of Interest. In the event, and on each
occasion, that prior to the commencement of any Interest Period for a Eurodollar
Borrowing (a) the Administrative Agent shall have determined that adequate and
reasonable means do not exist for determining the Adjusted LIBO Rate for such
Interest Period or (b) the Administrative Agent is advised by the Majority
Facility Lenders in respect of the relevant Facility that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such
Interest Period, the Administrative Agent shall, as soon as practicable
thereafter, give written or fax notice of such determination to the Borrower and
the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any request by the Borrower for
a Eurodollar Borrowing pursuant to Section 2.03 or Section 2.10 shall be deemed
to be a request for an ABR Borrowing and (ii) any Interest Period election that
requests the conversion of any
33
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective. Each determination by the Administrative Agent under this
Section 2.08 shall be conclusive absent manifest error.
SECTION 2.09 Termination and Reduction of Commitments. (a) Unless
previously terminated in accordance with the terms hereof, (i) the Term Loan
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
the Closing Date and (ii) the Revolving Credit Commitments, the Swingline
Commitment and the L/C Commitment shall automatically terminate on the Revolving
Credit Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on November 10, 2007,
if the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or fax
notice to the Administrative Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Revolving Credit Commitments or the Swingline Commitment; provided, however,
that (i) each partial reduction of the Revolving Credit Commitments or the
Swingline Commitment shall be in an integral multiple of $500,000 and in a
minimum amount of $1,000,000 and (ii) the Total Revolving Credit Commitment
shall not be reduced to an amount that is less than the Aggregate Revolving
Credit Exposure then in effect.
(c) Each reduction in the Revolving Credit Commitments or Swingline
Commitment hereunder shall be made ratably among the applicable Lenders in
accordance with their Pro Rata Percentages. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10 Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 12:00 (noon), New York City time, one Business Day
prior to conversion, to convert any Eurodollar Borrowing of the Borrower into an
ABR Borrowing, (b) not later than 12:00 Noon, New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing of the
Borrower into a Eurodollar Borrowing or to continue any Eurodollar Borrowing of
the Borrower as a Eurodollar Borrowing for an additional Interest Period and (c)
not later than 12:00 Noon, New York City time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing of the Borrower to another permissible Interest Period, subject in
each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Section 2.02(a) and Section
2.02(b) regarding the principal amount and maximum number of Borrowings of
the relevant Type;
34
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the
end of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Repayment Date occurring on or after
the first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurodollar Term
Borrowings with Interest Periods ending on or prior to such Repayment Date
and (B) the ABR Term Borrowings would not be at least equal to the
principal amount of Term Borrowings to be paid on such Repayment Date; and
(viii) after the occurrence and during the continuance of an Event of
Default, no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be converted or continued into an ABR Borrowing.
SECTION 2.11 Repayment of Term Borrowings. (a) On the dates set forth
below, or if any such date is not a Business Day, on the next preceding Business
Day (each such date being called a "Repayment Date"), the Borrower shall pay to
the Administrative Agent, for the
35
account of the Term Lenders, a principal amount of the Term Loans (as adjusted
from time to time pursuant to Section 2.11, Section 2.12 and Section 2.13(f))
equal to the amount set forth below for such date, together in each case with
accrued and unpaid interest and Fees on the amount to be paid to but excluding
the date of such payment:
Repayment Date Amount
-------------- ---------
September 30, 2007 $500,000
December 31, 2007 $500,000
March 31, 2008 $500,000
June 30, 2008 $500,000
September 30, 2008 $500,000
December 31, 2008 $500,000
March 31, 2009 $500,000
June 30, 2009 $500,000
September 30, 2009 $500,000
December 31, 2009 $500,000
March 31, 2010 $500,000
June 30, 2010 $500,000
September 30, 2010 $500,000
December 31, 2010 $500,000
March 31, 2011 $500,000
June 30, 2011 $500,000
September 30, 2011 $500,000
December 31, 2011 $500,000
March 31, 2012 $500,000
June 30, 2012 $500,000
September 30, 2012 $500,000
December 31, 2012 $500,000
March 31, 2013 $500,000
Term Loan Maturity Date Remainder
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12 Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans, or
written or fax notice (or telephone notice promptly confirmed by written or fax
notice) at least one Business Day prior to the date of prepayment in the case of
ABR Loans, to the Administrative Agent before 12:00 Noon, New York City time;
36
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $500,000 and not less than $1,000,000.
(b) Optional prepayments of Term Loans shall be applied pro rata against
the remaining scheduled installments of principal due in respect of the Term
Loans.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16, but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued and
unpaid interest on the principal amount to be prepaid to but excluding the date
of payment. In connection with any voluntary prepayments by the Borrower
pursuant to Section 2.12, any voluntary prepayment thereof shall be applied
first to ABR Loans to the full extent thereof before application to Eurodollar
Rate Loans, in each case in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.16.
SECTION 2.13 Mandatory Prepayments. (a) In the event of any termination
of all the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit Borrowings and
all its outstanding Swingline Loans and replace all its outstanding Letters of
Credit and/or deposit an amount equal to the L/C Exposure in cash in a cash
collateral account established with the Collateral Agent for the benefit of the
Secured Parties. If as a result of any partial reduction of the Revolving Credit
Commitments the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect thereto, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and/or cash
collateralize Letters of Credit in an amount sufficient to eliminate such
excess.
(b) Not later than the third Business Day (or not later than thirty days in
the case of any Subsidiary organized outside of Ireland and the United States)
following the completion of any Asset Sale, the occurrence of any Recovery Event
or the receipt of any Extraordinary Receipts, the Borrower shall apply the
Required Prepayment Percentage of the Net Cash Proceeds received with respect
thereto to prepay outstanding Loans in accordance with Section 2.13(f).
(c) In the event and on each occasion that an Equity Issuance occurs, the
Borrower shall, substantially simultaneously with (and in any event not later
than the third Business Day next following) the occurrence of such Equity
Issuance, apply the Required Prepayment Percentage of the Net Cash Proceeds
therefrom to prepay outstanding Loans in accordance with Section 2.13(f).
(d) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other incurrence of
Indebtedness of any Loan Party or any subsidiary of a Loan Party (other than
Indebtedness permitted pursuant to Section 6.01), the Borrower shall,
substantially simultaneously with (and in any event not later than the third
Business Day (or not later than thirty days in the case of any Subsidiary
organized outside of
37
Ireland and the United States) next following) the receipt of such Net Cash
Proceeds by such Loan Party or such subsidiary, apply an amount equal to the
Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding
Loans in accordance with Section 2.13(f).
(e) No later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending on January 31,
2009, and (ii) five (5) Business Days after the financial statements with
respect to such period are delivered pursuant to Section 5.04(a), the Borrower
shall prepay outstanding Loans in accordance with Section 2.13(f), in an
aggregate principal amount equal to the positive difference (if any) between (x)
the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then
ended less (y) any prepayments of the Term Loans made under Section 2.12 and any
prepayments of the Revolving Loans made under Section 2.12 to the extent
accompanied by a permanent reduction in the Revolving Credit Commitments by the
amount of such Revolving Loan prepayment pursuant to Section 2.09.
(f) Mandatory prepayments of outstanding Loans under this Agreement shall
be applied:
(i) to Term Loans to ratably reduce each scheduled installment of
principal thereunder set forth in Section 2.11. Any Term Lender may elect,
by notice in writing to the Administrative Agent at least 2 Business Days
or any shorter time period as the Administrative Agent may determine, prior
to the applicable prepayment date, to decline all of any mandatory
prepayments of its Term Loans pursuant to Section 2.13, in which case the
aggregate amount of the prepayment that would have been applied to prepay
such Term Loans but was so declined shall be promptly re-offered to prepay
the Term Loans of those Term Lenders who have initially accepted such
prepayment (such re-offer to be made to each such Term Lender based on the
percentage which such Term Lender's Term Loans represents of the aggregate
Term Loans of all such Term Lenders who have initially accepted such
prepayment);
(ii) in the event of such a re-offer, the relevant Lenders may elect,
by notice to the Administrative Agent within 1 Business Day of receiving
notification of such re-offer, to decline all of the amount of such
prepayment that is re-offered to them, in which case such amount shall be
retained by the Borrower; and
(iii) when there are no longer outstanding Term Loans under the Term
Facility, first, to prepay the outstanding amount of Swing Line Loans until
paid in full, second, to prepay outstanding Revolving Loans until paid in
full, and third, to cash collateralize the L/C Exposure, in each case with
no corresponding permanent reduction of the Revolving Credit Commitments.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of
38
Borrowings pursuant to this Section 2.13 shall be subject to Section 2.16, but
shall otherwise be without premium or penalty. In connection with any mandatory
prepayments by the Borrower of the Term Loans pursuant to Section 2.13, such
prepayments shall be applied on a pro rata basis to the then outstanding Term
Loans being prepaid irrespective of whether such outstanding Term Loans are ABR
Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right
to waive a given mandatory prepayment of the Term Loans pursuant to Section
2.13(e), then, with respect to such mandatory prepayment, the amount of such
mandatory prepayment shall be applied first to Term Loans that are ABR Loans to
the full extent thereof before application to Term Loans that are Eurodollar
Rate Loans in a manner that minimizes the amount of any payments required to be
made by the Borrower pursuant to Section 2.16.
SECTION 2.14 Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender, the Administrative Agent or the Issuing
Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or
(ii) impose on any Lender, the Administrative Agent or the Issuing
Bank or the London interbank market any other condition (except any such
reserve requirement which is reflected in the definition of Statutory
Reserves) affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Lender or the Issuing Bank of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to any
Lender, the Administrative Agent or the Issuing Bank of issuing or maintaining
any Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender, the Administrative Agent or the Issuing Bank to be
material, then the Borrower will pay to such Lender, the Administrative Agent or
the Issuing Bank, as the case may be, upon demand such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered; provided, that such
amount shall be determined in a manner consistent with the amount that such
Lender or the Issuing Bank, as the case may be, would generally apply with
respect to other similarly situated borrowers, if applicable, and shall not be
duplicative of any amounts paid by Borrower under any other provision of this
Agreement, and provided further, that costs to which this Section 2.14 applies
shall not include Excluded Taxes or costs relating to Indemnified Taxes or Other
Taxes that are governed by Section 2.20.
(b) If any Lender, the Administrative Agent or the Issuing Bank shall have
determined that any Change in Law regarding capital adequacy has or would have
the effect of reducing the rate of return on such Lender's, the Administrative
Agent's or the Issuing Bank's capital or on the capital of such Lender's, the
Administrative Agent's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit purchased by, such Lender or the Letters of Credit issued by
39
the Issuing Bank to a level below that which such Lender, the Administrative
Agent or the Issuing Bank or such Lender's, the Administrative Agent's or the
Issuing Bank's holding company would have achieved but for such Change in Law
(taking into consideration such Lender's, the Administrative Agent's or the
Issuing Bank's policies and the policies of such Lender's, the Administrative
Agent's or the Issuing Bank's holding company with respect to capital adequacy)
by an amount deemed by such Lender, the Administrative Agent or the Issuing Bank
to be material, then from time to time the Borrower shall pay to such Lender,
the Administrative Agent or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender, the Administrative
Agent or the Issuing Bank or such Lender's, the Administrative Agent's or the
Issuing Bank's holding company for any such reduction suffered; provided, that
such amount shall be determined in a manner consistent with the amount that such
Lender or the Issuing Bank, as the case may be, would generally apply with
respect to other similarly situated borrowers, if applicable, and shall not be
duplicative of any amounts paid by Borrower under any other provision of this
Agreement.
(c) A certificate of a Lender, the Administrative Agent or the Issuing Bank
setting forth in reasonable detail the amount or amounts necessary to compensate
such Lender, the Administrative Agent or the Issuing Bank or its holding
company, as applicable, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender, the Administrative Agent or the
Issuing Bank, as the case may be, the amount or amounts shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender, the Administrative Agent or
the Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's, the Administrative Agent's or the Issuing
Bank's right to demand such compensation; provided that the Borrower shall not
be under any obligation to compensate any Lender, the Administrative Agent or
the Issuing Bank under paragraph (a) or (b) above for increased costs or
reductions with respect to any period prior to the date that is 180 days prior
to such request if such Lender, the Administrative Agent or the Issuing Bank
knew or could reasonably have been expected to know of the circumstances giving
rise to such increased costs or reductions and of the fact that such
circumstances would or could reasonably have been expected to result in a claim
for increased compensation by reason of such increased costs or reductions;
provided further that the foregoing limitation shall not apply to any increased
costs or reductions arising out of the retroactive application of any Change in
Law within such 180-day period. The protection of this Section shall be
available to each Lender, the Administrative Agent and the Issuing Bank
regardless of any possible contention of the invalidity or inapplicability of
the Change in Law that shall have occurred or been imposed.
SECTION 2.15 Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be
40
converted into Eurodollar Loans), whereupon any request for a Eurodollar
Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to
continue a Eurodollar Borrowing for an additional Interest Period) shall,
as to such Lender only, be deemed a request for an ABR Loan (or a request
to continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans. Any such conversion of a Eurodollar Loan under (i) above
shall be subject to Section 2.16.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period then applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16 Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause being called a "Breakage Event"). In the case of any
Breakage Event, such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in effect
(or that would have been in effect) for such Loan over (ii) the amount of
interest likely to be realized by such Lender in redeploying the funds released
or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 2.16 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 2.17 Pro Rata Treatment. Except as provided in Section 2.13 and
below in this Section 2.17 with respect to Swingline Loans and as required under
Section 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest
41
on the Loans, each payment of the Commitment Fees, each reduction of the Term
Loan Commitments or the Revolving Credit Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). For purposes of determining the available Revolving Credit
Commitments of the Lenders at any time, each outstanding Swingline Loan shall be
deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in
accordance with such respective Revolving Credit Commitments. Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18 Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans and L/C Exposure of such other Lender, so that the aggregate unpaid
principal amount of the Loans and L/C Exposure and participations in Loans and
L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding
as the principal amount of its Loans and L/C Exposure prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have been
so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.
SECTION 2.19 Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.22(e)) shall be made
42
to the Administrative Agent at its offices at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000. All payments hereunder and under each other Loan Document shall be
made in dollars. The Administrative Agent shall distribute any such payments
received by it for the account of any other person to the appropriate recipient
promptly following receipt thereof.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20 Taxes
(a) Any and all payments by or on account of any obligation of the Borrower
or any other Loan Party hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if any Indemnified Taxes or Other Taxes are required to be
withheld or deducted from such payments, then (i) the sum payable by the
Borrower, or, as the case may be, the other Loan Party shall be increased as
necessary so that after all required deductions or withholding (including
deductions or withholdings applicable to additional sums payable under this
Section), the Administrative Agent or such Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower or such other Loan Party shall make (or cause to be
made) such deductions and (iii) the Borrower or such other Loan Party shall pay
(or cause to be paid) the full amount deducted to the relevant Governmental
Authority in accordance with applicable law. In addition, the Borrower or any
other Loan Party hereunder shall pay (or cause to be paid) any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, or any of their respective Affiliates, on or with
respect to any payment by or on account of any obligation of the Borrower or any
Loan Party hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A reasonably detailed certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, or by the Administrative Agent
on its behalf or on behalf of a Lender, shall be conclusive absent manifest
error. The Borrower shall not be under any obligation to compensate the
Administrative Agent and each Lender for any Indemnified Taxes or other Taxes
paid by the Administrative Agent or such Lender for any period ending prior to
the date that is 270 days prior to the date of such certificate.
(c) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes pursuant to Section 2.20(a), and in any event within 30 days of any such
payment being due, the
43
Borrower shall deliver (or cause to be delivered) to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(d) If the applicable Lender, the Issuing Bank or the Administrative Agent
obtains a refund in respect of an amount paid by the Borrower to any
Governmental Authority pursuant to Section 2.20(a) or for an amount for which
indemnification was received by any Lender, the Issuing Bank or the
Administrative Agent pursuant to Section 2.20(b), such Lender, Issuing Bank or
the Administrative Agent shall promptly pay to Borrower the amount of the refund
(and any interest thereon), net of all reasonable and allocable out-of-pocket
expense of such Lender, Issuing Bank or the Administrative Agent in incurred in
obtaining such refund. This section shall not be construed to require any
Lender, Issuing Bank or the Administrative Agent to make available its Tax
returns (or any other information it deems confidential) to the Borrower or any
other person.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate; provided that such Lender is legally entitled
to complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or delivery would not materially prejudice
the legal position of such Lender. In addition, each Foreign Lender shall (i)
furnish on or before it becomes a party to the Agreement either (a) two accurate
and complete originally executed U.S. Internal Revenue Service Form W-8BEN (or
successor form) or (b) an accurate and complete U.S. Internal Revenue Service
Form W-8ECI (or successor form), certifying, in either case, to such Foreign
Lender's legal entitlement to an exemption or reduction from U.S. federal
withholding tax with respect to all interest payments hereunder, and (ii)
provide a new Form W-8BEN (or successor form) or Form W-8ECI (or successor form)
upon the expiration or obsolescence of any previously delivered form to
reconfirm any complete exemption from, or any entitlement to a reduction in,
U.S. federal withholding tax with respect to any interest payment hereunder;
provided that any Foreign Lender that is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and is relying on the so-called "portfolio
interest exemption" shall also furnish a "Non-Bank Certificate" in the form of
Exhibit H together with a Form W-8BEN. Notwithstanding any other provision of
this paragraph, a Foreign Lender shall not be required to deliver any form
pursuant to this paragraph that such Foreign Lender is not legally able to
deliver.
(f) Any Lender that is a United States person, as defined in Section
7701(a)(30) of the Tax Code, and is not an exempt recipient within the meaning
of Treasury Regulations Section 1.6049-4(c) shall deliver, on or before the date
it becomes a party to this Agreement, to the Borrower (with a copy to the
Administrative Agent) two accurate and complete original signed copies of
Internal Revenue Service Form W-9, or any successor form that such person is
entitled to provide at such time in order to comply with United States back-up
withholding requirements.
44
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.20 shall survive the payment in full of all amounts due
hereunder.
SECTION 2.21 Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower
is required to pay any additional amount to any Lender or the Issuing Bank or
any Governmental Authority on account of any Lender or the Issuing Bank pursuant
to Section 2.20 or (iv) any Lender does not consent to a proposed amendment,
modification or waiver of this Agreement requested by the Borrower which
requires the consent of all of the Lenders or all of the Lenders under any
Facility to become effective (and which is approved by at least the Required
Lenders), the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 9.04(b)),
upon notice to such Lender or the Issuing Bank and the Administrative Agent,
require such Lender or the Issuing Bank to transfer and assign, without recourse
(in accordance with and subject to the restrictions contained in Section 9.04),
all of its interests, rights and obligations under this Agreement in respect of
its Term Loans and/or its Revolving Loans (including its Revolving Credit
Commitment) to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y)
solely with respect to replacements of Lenders pursuant to clauses (i), (ii) or
(iii) of this Section, the Borrower shall have received the prior written
consent of the Administrative Agent (and, if a Revolving Credit Commitment is
being assigned, of the Issuing Bank and the Swingline Lender), which consent
shall not unreasonably be withheld, and (z) the Borrower or such assignee shall
have paid to the affected Lender or the Issuing Bank in immediately available
funds an amount equal to the sum of the principal of and interest accrued to the
date of such payment on the outstanding Loans or L/C Disbursements of such
Lender or the Issuing Bank, respectively, with respect to its interests being
assigned hereunder plus all Fees and other amounts accrued for the account of
such Lender or the Issuing Bank hereunder (including any amounts under Section
2.14 and Section 2.16); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or the
Issuing Bank's claim for compensation under Section 2.14 or notice under Section
2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to
cause such Lender or the Issuing Bank to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.15, or cease to result in amounts
being payable under Section 2.20, as the case may be (including as a result of
any action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder. In
connection with any such replacement, upon receipt by such replaced Lender of
all amounts specified above in connection with its assigned interests, such
replaced Lender shall be deemed to have executed and delivered an Assignment and
Acceptance and the assignment by such replaced Lender shall be automatically
effective.
45
(b) If (i) any Lender, the Administrative Agent or the Issuing Bank shall
request compensation under Section 2.14, (ii) any Lender or the Issuing Bank
delivers a notice described in Section 2.15 or (iii) the Borrower is required to
pay any additional amount to any Lender, the Administrative Agent or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank,
pursuant to Section 2.20, then such Lender or the Issuing Bank shall use
reasonable efforts (which shall not require such Lender or the Issuing Bank to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any
action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender or the Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
SECTION 2.22 Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions hereof and relying upon the representations and warranties
set forth herein, the Swingline Lender agrees to make loans to the Borrower, at
any time and from time to time after the Closing Date, and until the earlier of
the Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $5,000,000 in the aggregate or
(ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $100,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent by
fax, or by telephone (confirmed by fax), not later than 10:00 a.m., New York
City time, on the day of a proposed Swingline Loan to be made to it. Such notice
shall be delivered on a Business Day, shall be irrevocable and shall refer to
this Agreement and shall specify the requested date (which shall be a Business
Day) and amount of such Swingline Loan. The Administrative Agent will promptly
advise the Swingline Lender of any notice received from the Borrower pursuant to
this paragraph (b). The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit account of
the Borrower as directed in such notice of proposed Swingline Loan from Borrower
to Administrative Agent by 3:00 p.m., New York City time, on the date such
Swingline Loan is so requested.
(c) Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Swingline Loan, in whole or in part, upon giving written
or fax notice (or telephone notice promptly confirmed by written or fax notice)
to the Swingline Lender and to the Administrative Agent before 12:00 (noon), New
York City time, on the date of prepayment at the Swingline Lender's address for
notices specified in the Lender Addendum delivered by the
46
Swingline Lender. All principal payments of Swingline Loans shall be accompanied
by accrued interest on the principal amount being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. The Swingline Lender may, by written notice given to
the Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day, require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's Pro Rata Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance,
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders under this Section) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23 Letters of Credit. (a) General. Subject to the terms and
conditions hereof, the Borrower may request the issuance of a Letter of Credit
at any time and from time to time while the Revolving Credit Commitments remain
in effect (but no later than 30 days prior to the Revolving Credit Maturity
Date) for its own account or for the account of any other Loan Party (in which
case the Borrower and such other Loan Party shall be co-applicants with respect
to such Letter of Credit), in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank. This Section shall not be construed to impose an
obligation upon the Issuing Bank to issue any Letter of Credit that is
inconsistent with the terms and conditions of this Agreement.
47
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or fax to
the Issuing Bank and the Administrative Agent (no less than three Business Days
(or such shorter period of time acceptable to the Issuing Bank) in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (i) the L/C Exposure shall not exceed
$20,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of (i) the date one year after the date of the issuance
of such Letter of Credit and (ii) the date that is five Business Days prior to
the Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that a Letter of Credit may, upon
the request of the Borrower, include a provision whereby such Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to the
Revolving Credit Maturity Date) unless the Issuing Bank notifies the beneficiary
thereof at least 30 days prior to the then-applicable expiration date that such
Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement within one (1) Business Day after
the Borrower shall have received notice from the Issuing Bank that payment of
such draft will be made, or, if the Borrower shall
48
have received such notice later than 10:00 a.m., New York City time, on any
Business Day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of, or any consent to departure from, all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, indemnifying or otherwise
obligated with, the Borrower, any subsidiary or other Affiliate thereof or
any other person may at any time have against the beneficiary under any
Letter of Credit, the Issuing Bank, the Administrative Agent or any Lender
or any other person, whether in connection with this Agreement, any other
Loan Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, any Lender, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or willful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or willful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on
49
the amount of any draft presented under such Letter of Credit, whether or not
the amount due to the beneficiary thereunder equals the amount of such draft and
whether or not any document presented pursuant to such Letter of Credit proves
to be insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute willful misconduct or gross negligence of the Issuing
Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by fax, to the Administrative Agent and
the Borrower of such demand for payment and whether the Issuing Bank has made or
will make an L/C Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the applicable Lenders with respect to any such
L/C Disbursement. The Administrative Agent shall promptly give each Revolving
Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign
at any time by giving 30 days' prior written notice to the Administrative Agent,
the Lenders and the Borrower. Subject to the next succeeding paragraph, upon the
acceptance of any appointment as the Issuing Bank hereunder by a Lender that
shall agree to serve as successor Issuing Bank, such successor shall succeed to
and become vested with all the interests, rights and obligations of the retiring
Issuing Bank and the retiring Issuing Bank shall be discharged from its
obligations to issue additional Letters of Credit hereunder. At the time such
removal or resignation shall become effective, the Borrower shall pay all
accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any
appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents
50
with respect to Letters of Credit issued by it prior to such resignation or
removal, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders representing greater than 50% of
the total L/C Exposure) thereof and of the amount to be deposited, deposit in an
account with the Collateral Agent, for the ratable benefit of the Revolving
Credit Lenders, an amount in cash equal to the L/C Exposure as of such date.
Such deposit shall be held by the Collateral Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits in Permitted Investments, which investments
shall be made at the option and sole discretion of the Collateral Agent, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall (i)
automatically be applied by the Administrative Agent to reimburse the Issuing
Bank for L/C Disbursements for which it has not been reimbursed, (ii) be held
for the satisfaction of the reimbursement obligations of the Borrower for the
L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders representing
greater than 50% of the total L/C Exposure), be applied to satisfy the
Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of the Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph shall be deemed to be
an "Issuing Bank" (in addition to being a Lender) in respect of Letters of
Credit issued or to be issued by such Lender, and, with respect to such Letters
of Credit, such term shall thereafter apply to the other Issuing Bank and such
Lender.
ARTICLE III.
Representations and Warranties
Each of Holdings and the Borrower jointly and severally represents and
warrants to the Administrative Agent, the Collateral Agent, the Issuing Bank and
each of the Lenders that after giving effect to the Transactions:
SECTION 3.01 Organization; Powers. Holdings, the Borrower and each of the
Subsidiaries (a) is duly organized or formed, validly existing and in good
standing (to the extent applicable in such jurisdiction) under the laws of the
jurisdiction of its organization or formation, (b) has all requisite power and
authority, and the legal right, to own and operate its property and assets, to
lease the property it operates as lessee and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in,
and is in good standing (to the
51
extent applicable in such jurisdiction) in, every jurisdiction where such
qualification is required, except where the failure to so qualify in a
jurisdiction (other than its jurisdiction of incorporation) could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and (d) has the power and authority, and the legal right, to execute, deliver
and perform its obligations under this Agreement, each of the other Loan
Documents, the Acquisition Documentation and each other agreement or instrument
contemplated hereby or thereby to which it is or will be a party, including, in
the case of the Borrower, to borrow hereunder, in the case of each Loan Party,
to grant the Liens contemplated to be granted by it under the Security Documents
and, in the case of Holdings and each Subsidiary Guarantor, to Guarantee the
Obligations as contemplated by the Guarantee and Collateral Agreement or any
other Loan Documents to which it is a party.
SECTION 3.02 Authorization; No Conflicts. The Transactions (a) have been
duly authorized by all requisite corporate, partnership, public limited
liability company or limited liability company and, if required, stockholder,
shareholder, partner or member action on behalf of the Loan Parties and (b) will
not (i) violate (A) any provision of law, statute, rule or regulation, or of the
memorandum or articles of association, certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Borrower or any
Subsidiary, (B) any order of any Governmental Authority or arbitrator applicable
to Holdings, the Borrower or any Subsidiary or (C) any provision of any
indenture, agreement or other instrument to which Holdings, the Borrower or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, except to the extent that such violation of clauses (A), (B) or (C)
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under, or
give rise to any right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or other
instrument, except to the extent that such conflict, breach or default could not
reasonably be expected to have a Material Adverse Effect, individually or in the
aggregate, or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary, other than Liens created under the
Security Documents and liens permitted by Section 6.02 hereof.
SECTION 3.03 Enforceability. This Agreement has been duly executed and
delivered by each of Holdings and the Borrower and constitutes, and each other
Loan Document when executed and delivered by each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to applicable
bankruptcy, insolvency, court protection, reorganization, moratorium or other
laws affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.04 Governmental Approvals. No action, consent or approval of,
registration or filing with, Permit from, notice to, or any other action by, any
Governmental Authority is or will be required in connection with the
Transactions, except for (a) the filing of UCC financing statements, filings
with the United States Patent and Trademark Office and the United States
Copyright Office, and other recordings and filings in connection with the Liens
granted to the Collateral Agent under the Security Documents, (b) recordation of
the Mortgages,
52
if any, and (c) such as have been made or obtained and are in full force and
effect or which will be made or obtained by the time required by law (including
the Perfection Requirements).
SECTION 3.05 Financial Statements. (a) Holdings has heretofore furnished to
the Lenders its consolidated balance sheets and statements of income,
stockholder's equity and cash flows as of and for the fiscal years ended January
31, 2004, January 31, 2005, January 31, 2006 and January 31, 2007, in each case
audited by and accompanied by the opinion of Ernst & Young LLP, independent
public accountants. Such financial statements present fairly in all material
respects the financial condition and results of operations and cash flows of
Holdings and its consolidated Subsidiaries as of such dates and for such
periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of Holdings and its consolidated Subsidiaries
as of the dates thereof. Such financial statements were prepared in accordance
with GAAP applied on a consistent basis.
(b) Holdings and the Borrower have heretofore furnished to the Lenders the
consolidated balance sheets and statements of income, stockholder's equity and
cash flows for the Target as of and for the fiscal year years ended December 31,
2004, December 31, 2005 and December 31, 2006, in each case audited by and
accompanied by the opinion of PricewaterhouseCoopers, LLP, independent public
accountants. Such financial statements present fairly in all material respects
the financial condition and results of operations and cash flows of the Target
as of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the Target as of the
dates thereof. Such financial statements were prepared in accordance with GAAP
applied on a consistent basis and were prepared in accordance with Regulations
S-X under the Securities Act of 1933, as amended.
SECTION 3.06 No Material Adverse Change. No event, change or condition has
occurred since January 31, 2007 that has caused, or could reasonably be expected
to cause, a Material Adverse Effect.
SECTION 3.07 Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Real Property), except for minor defects in title with respect to any owned
Real Property that, in the aggregate, are not substantial in amount and do not
materially detract from the value of the property subject thereto or interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. Each parcel of owned
Real Property is free from material structural defects and all building systems
contained therein are in good working order and condition, ordinary wear and
tear excepted, suitable for the purposes for which they are currently being
used. Each parcel of Real Property and the current use thereof complies with all
applicable laws (including building and zoning ordinances and codes) and with
all insurance requirements except where such non-compliance could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(b) Each of Holdings, the Borrower and the Subsidiaries, and, to the
knowledge of the Borrower, each other party thereto, has complied with all
obligations under all material leases to which it is a party in all material
respects and all such leases are legal, valid, binding and in full
53
force and effect and are enforceable in all material respects in accordance with
their terms. Each of Holdings, the Borrower and the Subsidiaries enjoys peaceful
and undisturbed possession under all such material leases. No landlord Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
in each case with respect to any overdue lease payment in excess of $500,000 in
the aggregate under any material lease. None of the owned Real Property is
subject to any lease, sublease, license or other agreement granting to any
person (other than Holdings, the Borrower and their Affiliates) any right to the
use, occupancy, possession or enjoyment of the owned Real Property or any
portion thereof, except for easements or similar rights which do not materially
detract from the value of the property subject thereto. The Borrower has made
available to the Administrative Agent true, complete and correct copies of all
material leases (whether as landlord or tenant) of Real Property.
(c) None of Holdings, the Borrower or any of the Subsidiaries has received
any notice of, nor has any knowledge of, any pending or contemplated
condemnation proceeding affecting the Real Properties in any material respect or
any sale or disposition thereof in lieu of condemnation.
(d) None of Holdings, the Borrower or any of the Subsidiaries is obligated
under any right of first refusal, option or other contractual right or statutory
or legal order to sell, assign or otherwise dispose of any owned Real Property
or any interest therein.
SECTION 3.08 Subsidiaries. Schedule 3.08 sets forth as of the Closing Date
a list of all Subsidiaries, including each Subsidiary's exact legal name (as
reflected in such Subsidiary's certificate or articles of incorporation or other
constitutive documents) and jurisdiction of incorporation or formation and the
percentage ownership interest of Holdings or the Borrower (direct or indirect)
therein, and identifies each Subsidiary that is Loan Party. The shares of
capital stock or other Equity Interests so indicated on Schedule 3.08 are fully
paid and non-assessable and are owned by Holdings or the Borrower, directly or
indirectly, free and clear of all Liens (other than Liens created under the
Security Documents).
SECTION 3.09 Litigation; Compliance with Laws. (a) There are no actions,
suits or proceedings at law or in equity or by or before any arbitrator or
Governmental Authority now pending or, to the knowledge of Holdings or the
Borrower, threatened against or affecting Holdings, the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) except as set forth on
Schedule 3.09, as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Since the date of this Agreement, there has been no change in the
status of the matters disclosed on Schedule 3.09 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
(c) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any
54
building permits) or any restrictions of record or agreements affecting the
Mortgaged Property, or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10 Agreements. (a) None of Holdings, the Borrower or any of the
Subsidiaries is a party to any agreement or instrument, or subject to any
corporate restriction, that, individually or in the aggregate, has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound where such default, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11 Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for purchasing or carrying Margin Stock or for the purpose of
purchasing, carrying or trading in any securities under such circumstances as to
involve the Borrower in a violation of Regulation X or to involve any broker or
dealer in a violation of Regulation T. No Indebtedness being reduced or retired
out of the proceeds of any Loans or Letters of Credit was or will be incurred
for the purpose of purchasing or carrying any Margin Stock. Following the
application of the proceeds of the Loans and the Letters of Credit, Margin Stock
will not constitute more than 25% of the value of the assets of Holdings, the
Borrower and the Subsidiaries. None of the transactions contemplated by this
Agreement will violate or result in the violation of any of the provisions of
the Regulations of the Board, including Regulation T, U or X. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation U.
SECTION 3.12 Investment Company Act. None of Holdings, the Borrower or any
of the Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.13 Use of Proceeds. The Borrower will use the proceeds of the
Term Loans solely (a) to pay the Acquisition Consideration and (b) to pay fees
and expenses related to the Transactions. The Borrower will use the proceeds of
the Revolving Loans and the Swingline Loans solely for general corporate
purposes, including Permitted Acquisitions. The Borrower will request the
issuance of Letters of Credit solely to support payment obligations incurred in
the ordinary course of business by the Borrower and the Subsidiary Guarantors.
55
SECTION 3.14 Tax Returns. Except as set forth on Schedule 3.14, (a) each of
Holdings, the Borrower and each of the Subsidiaries has timely filed or timely
caused to be filed all Federal (and foreign national equivalent) and all
material state, provincial and local income tax and other material tax returns
or materials required to have been filed by it and all such tax returns are
correct and complete in all material respects, (b) each of Holdings, the
Borrower and each of the Subsidiaries has timely paid or timely caused to be
paid all material Taxes due and payable by it and all assessments received by
it, except Taxes that are being contested in good faith by appropriate
proceedings and for which Holdings, the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves to the extent
required by GAAP and (c) to the knowledge of Holdings, the Borrower and each of
the Subsidiaries, no claim is being asserted, with respect to any Tax in a
material amount. Each of Holdings, the Borrower and each of the Subsidiaries has
made adequate provision in accordance with GAAP for all Taxes not yet due and
payable. No Tax Lien has been filed with respect to any Tax in a material
amount.
SECTION 3.15 No Material Misstatements; Acquisition Documentation.
(a) None of (i) the Confidential Information Memorandum or (ii) any other
information, report, financial statement, exhibit or schedule furnished by or on
behalf of Holdings, the Borrower or any Subsidiary to the Arranger, the
Administrative Agent or any Lender for use in connection with the transactions
contemplated by the Loan Documents or in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained or
contains any material misstatement of fact or omitted or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading;
provided that to the extent any such information, report, financial statement,
exhibit or schedule was based upon or constitutes a forecast or projection, each
of Holdings and the Borrower represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
(b) As of the Closing Date, the representations and warranties of the
applicable Loan Parties and their Affiliates set forth in the Acquisition
Documentation are true and correct in all material respects.
SECTION 3.16 Employee Benefit Plans.
(a) Each of the Borrower and Holdings and each of its ERISA Affiliates is
in compliance in all material respects with the applicable provisions of ERISA
and the Tax Code and the regulations and published interpretations thereunder.
No ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, could reasonably be expected to
result in material liability of the Borrower or any of its ERISA Affiliates. The
accumulated benefit obligation (as defined for purposes of Statement of
Financial Accounting Standards No. 87) under each Benefit Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the last annual valuation date applicable thereto, exceed by
more than $1,000,000 the fair market value of the assets of such Benefit Plan,
and the present value of all accumulated benefit obligations of all underfunded
Benefit Plans (based on the assumptions used for purposes of Statement of
56
Financial Accounting Standards No. 87) did not, as of the last annual valuation
dates applicable thereto, exceed by more than $1,000,000 the fair market value
of the assets of all such underfunded Benefit Plans. For purposes of this
Section 3.16, a Benefit Plan is underfunded if the accumulated benefit
obligation of such Benefit Plan, as of the last annual valuation date applicable
thereto (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87), is greater than the fair market value of the
assets of such Benefit Plan.
(b) There are no liabilities associated with or arising from the UK
Guarantor or any other Foreign Subsidiary participating in, providing, or
contributing to, either currently or in the past, or ceasing to provide or
contribute to, or in respect of, any scheme or arrangement for the provision of
any pension, superannuation, retirement (including on early retirement) or death
benefits (including in the form of a lump sum) (the benefits together referred
to as "Pension Benefits") or providing, or being obligated to provide or failing
to provide any Pension Benefits, which are not fully funded, insured or provided
for on a generally accepted basis either through a separate trust, insurance
policy or as an accrual or provision in the accounts of the relevant Foreign
Subsidiary.
SECTION 3.17 Environmental Matters. (a) Except as set forth in Schedule
3.17 and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of Holdings, the Borrower or any of the Subsidiaries:
(i) has failed to comply with any Environmental Law or to take, in a
timely manner, all actions necessary to obtain, maintain, renew and comply
with any Environmental Permit, and all such Environmental Permits are in
full force and effect and not subject to any administrative or judicial
appeal;
(ii) has become a party to any governmental, administrative or
judicial proceeding or possesses knowledge of any such proceeding that has
been threatened under Environmental Law;
(iii) has received notice of, become subject to, or is aware of any
facts or circumstances that could reasonably be expected to form the basis
for, any Environmental Liability other than those which have been fully and
finally resolved and for which no obligations remain outstanding;
(iv) possesses knowledge that any Mortgaged Property (A) is subject to
any Lien, restriction on ownership, occupancy, use or transferability
imposed pursuant to Environmental Law or (B) contains or previously
contained Hazardous Materials of a form or type or in a quantity or
location that could reasonably be expected to result in any Environmental
Liability;
(v) possess knowledge that there has been a Release or threat of
Release of Hazardous Materials at or from the Mortgaged Properties (or from
any facilities or other properties formerly owned, leased or operated by
Holdings, the Borrower or any of the
57
Subsidiaries) in violation of, or in amounts or in a manner that could
reasonably be expected to give rise to liability under, any Environmental
Law;
(vi) has generated, treated, stored, transported, or Released
Hazardous Materials from the Mortgaged Properties (or from any facilities
or other properties formerly owned, leased or operated by Holdings, the
Borrower or any of the Subsidiaries) in violation of, or in a manner or to
a location that could give rise to liability under, any Environmental Law;
(vii) is aware of any facts, circumstances, conditions or occurrences
in respect of any of the facilities and properties owned, leased or
operated that could reasonably be expected to (A) form the basis of any
action, suit, claim or other judicial or administrative proceeding relating
to liability under or noncompliance with Environmental Law on the part of
Holdings, the Borrower or any of the Subsidiaries or (B) or interfere with
or prevent continued compliance with Environmental Laws by Holdings, the
Borrower or the Subsidiaries; or
(viii) has pursuant to any order, decree, judgment or agreement by
which it is bound or has assumed the Environmental Liability for any
person.
(b) Since the date of this Agreement, there has been no change in the
status of the matters disclosed on Schedule 3.17 that, individually or in the
aggregate, has resulted in, or could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.18 Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by or on behalf of Holdings, the
Borrower and the Subsidiaries as of the Closing Date. As of the Closing Date,
such insurance is in full force and effect and all premiums have been duly paid.
Holdings, the Borrower and the Subsidiaries are insured by financially sound and
reputable insurers and such insurance is in such amounts and covering such risks
and liabilities as are in accordance with normal and prudent industry practice.
None of Holdings, the Borrower or any of the Subsidiaries (a) has received
notice from any insurer (or any agent thereof) that substantial capital
improvements or other substantial expenditures will have to be made in order to
continue such insurance or (b) has any reason to believe that it will not be
able to renew its existing coverage as and when such coverage expires or to
obtain similar coverage from similar insurers at a substantially similar cost.
SECTION 3.19 Security Documents. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid, binding and enforceable security
interest in the Collateral of the US Grantors (as defined therein) described
therein and proceeds thereof, to the extent that a security interest can be
created in such property (except that no such representation or warranty is made
with respect to the perfection of security interests under the laws of any
non-U.S. jurisdiction that are granted under the Guarantee and Collateral
Agreement) and (i) in the case of the Pledged Collateral, upon the earlier of
(A) when such Pledged Collateral is delivered to the Collateral Agent and (B)
when financing statements in appropriate form are filed in the offices specified
on Schedule 3.19(a) and (ii) in the case of all other Collateral described
therein (other than Intellectual Property Collateral), when financing statements
in appropriate form are filed in
58
the offices specified on Schedule 3.19(a), the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the US Grantors (as defined therein) in such
Collateral and proceeds thereof to the extent that a security interest can be
created in such Collateral and perfected by filing, as security for the
Obligations, in each case prior and superior to the rights of any other person
(except, in the case of all Collateral other than Pledged Collateral, with
respect to Liens expressly permitted by Section 6.02).
(b) Each Intellectual Property Security Agreement is effective to create in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid, binding and enforceable security interest in the Intellectual
Property Collateral of the Domestic Subsidiaries party thereto described therein
and proceeds thereof, to the extent a security interest can be created in such
property (except that no representation or warranty is made in respect of any
Intellectual Property Security Agreement executed by Borrower or any Domestic
Subsidiary with respect to the perfection of security interests under the laws
of any non-U.S. jurisdiction). When each Intellectual Property Security
Agreement is filed in the United States Patent and Trademark Office and the
United States Copyright Office, as applicable, together with financing
statements in appropriate form filed in the offices specified in Schedule
3.19(a), such Intellectual Property Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Domestic Subsidiaries parties thereto in the Intellectual Property
Collateral and proceeds thereof to the extent that a security interest can be
created in such property, as security for the Obligations, in each case prior
and superior in right to any other person (except with respect to Liens
expressly permitted by Section 6.02) (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the grantors after
the date hereof).
(c) Each of the UK Security Documents is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid, binding and enforceable Lien on, and security interest in, all of the
relevant Loan Parties' right, title and interest in and to the Collateral
described therein and proceeds thereof, and when the UK Security Documents are
filed with Companies House in the United Kingdom, each such UK Security Document
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereto in such Collateral and proceeds
thereof, as security for the Obligations to the extent such a security interest
can be created in such Collateral and perfected by filing as security for the
Obligations, in each case prior and superior to the rights of any other person
(except with respect to Liens expressly permitted by Section 6.02).
(d) The Canadian Security Agreement is effective to create in favour of the
Collateral Agent, for the rateable benefit of the Secured Parties, a legal,
valid, binding and enforceable security interest in the Collateral of the
Canadian Guarantor and the proceeds thereof, to the extent that a security
interest can be created in such property (except that no representation or
warranty is made with respect to the perfection of security interests under the
laws of any non-Canadian jurisdiction that are granted under the Canadian
Security Agreement) and (i) in the case of the Pledged Collateral (as defined in
the Canadian Security Agreement), upon the earlier of (A) when such Pledged
Collateral is delivered to the Collateral Agent and (B) when financing
statements in appropriate form are filed in the offices specified in Schedule
3.19(a) and (ii) in the
59
case of all other Collateral described therein (other than Intellectual Property
Collateral), when the financing statements in appropriate form are filed in the
offices specified in Schedule 3.19(a), the Canadian Security Agreement shall
constitute a fully perfected Lien on, and security interest in all right, title
and interest of the Canadian Guarantor in such Collateral and the proceeds
thereof to the extent that a security interest can be created in such Collateral
and perfected by filing, as security for the Obligations, in each case prior to
and superior to the rights of any other person (except, in the case of all
Collateral other than the Pledged Collateral, with respect to Liens expressly
permitted by Section 6.02). When the Confirmation of Security Interest in
Intellectual Property in the form attached as Schedule D to the Canadian
Security Agreement is filed in the Canadian Intellectual Property Office
together with financing statements in appropriate form filed in the offices
specified in Schedule 3.19(a), the Canadian Security Agreement shall constitute
a fully perfected Lien on, and security interest in, all right, title and
interest of the Canadian Guarantor in the Intellectual Property Collateral and
proceeds thereof to the extent that a security interest can be created in such
property, as security for the Obligations, in each case prior and superior in
right to any other person (except with respect to Liens expressly permitted by
Section 6.02) (it being understood that subsequent recordings in the Canadian
Intellectual Property Office may be necessary to perfect a lien on registered
trademarks, trademark applications, patents, patent applications and copyrights
acquired by the Canadian Guarantor after the date hereof).
SECTION 3.20 Location of Real Property. Schedule 3.20 lists completely and
correctly as of the Closing Date all Real Property and the addresses thereof,
indicating for each parcel whether it is owned or leased, including in the case
of leased Real Property for Holdings and the Borrower, the landlord name, lease
date and lease expiration date. Holdings, the Borrower and the Subsidiaries own
in fee or have valid leasehold interests in, as the case may be, all the real
property set forth on Schedule 3.20.
SECTION 3.21 Labor Matters. As of the Closing Date, there are no strikes,
lockouts or slowdowns against the Holdings, the Borrower or any Subsidiary
pending or, to the knowledge of Holdings or the Borrower, threatened. The hours
worked by and payments made to employees of the Holdings, the Borrower and the
Subsidiaries have not been in violation, to the extent applicable, of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from Holdings, the Borrower or any
Subsidiary, or for which any claim may be made against Holdings, the Borrower or
any Subsidiary, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary consistent with applicable law in all
material respects. The consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.
SECTION 3.22 Liens. There are no Liens of any nature whatsoever on any of
the properties or assets of Holdings, the Borrower or any of the Subsidiaries
(other than Liens expressly permitted by Section 6.02).
SECTION 3.23 Intellectual Property. Each of Holdings, the Borrower and each
of the Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and
60
other intellectual property used in its business, and the use thereof by
Holdings, the Borrower and the Subsidiaries does not infringe upon the rights of
any other person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.24 Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan (or other extension of credit hereunder) and after giving effect to
the application of the proceeds of each Loan (or other extension of credit
hereunder), (a) the fair value of the assets of the Borrower (individually) and
Holdings and its Subsidiaries on a consolidated basis, at a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of the Borrower (individually) and
Holdings and its Subsidiaries on a consolidated basis, will be greater than the
amount that will be required to pay the probable liability of the Borrower
(individually) and Holdings and its Subsidiaries on a consolidated basis,
respectively, on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
Borrower (individually) and Holdings and its Subsidiaries on a consolidated
basis will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; (d)
Borrower (individually) and Holdings and its Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date; and (e) with respect to any
person incorporated in England and Wales only, such a person is not "unable to
pay its debts". In this context, "unable to pay its debts" means that there are
no grounds on which such person would be deemed unable to pay its debts (as
defined in Section 123(1) of the Insolvency Act 1986 of England Wales (as
amended by the Enterprise Xxx 0000 of England and Wales) on the basis that the
words "proved to the satisfaction of the court" are deemed omitted from sections
123(1)(e) and 123(2) of that Act) or on which a court would be satisfied that
the value of such Person's assets is less than the amount of its liabilities,
taking into account its contingent and prospective liabilities (as such term
would be construed for the purposes of Section 123(2) of the Insolvency Xxx 0000
of England and Wales (as amended by the Enterprise Xxx 0000 of England and
Wales)). The amount of contingent or unliquidated liabilities (such as
litigation, guaranties and pension plan liabilities) at any time shall be
computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can be reasonably be expected
to become an actual or matured liability. In respect of Holdings and those of
its Irish Subsidiaries that are party to any Loan Document, (i) the conclusions
by its respective board of directors as to the commercial justification for the
execution by it of each Loan Document to which it is a party was reached in good
faith for its benefit and (ii) each such Loan Party is and was at the time of
entering into, and performing its obligations under, each Loan Document (and at
the time of the approval thereof) able to pay its debts as they fall due and
will not, as a consequence of entering into, and performing its obligations
under, any Loan Document, become unable to pay its debts as they fall due (in
each case, within the meaning of each of section 214 of the Companies Xxx 0000
of Ireland and section 2(3) of the Companies (Amendment) Xxx 0000 of Ireland (as
amended).
SECTION 3.25 Acquisition Documentation. The Acquisition Documentation
listed on Schedule 3.25 constitutes all of the material agreements, instruments
and undertakings to which Holdings, the Borrower or any of the Subsidiaries is
bound or by which any of their
61
respective property or assets is bound or affected relating to, or arising out
of, the Acquisition. As of the Closing Date, none of such material agreements,
instruments or undertakings has been amended, supplemented or otherwise
modified, and all such material agreements, instruments and undertakings are in
full force and effect. No party to any of the Acquisition Documentation is in
default thereunder as of the Closing Date and no party thereto has the right to
terminate any of the Acquisition Documentation.
SECTION 3.26 Permits. (a) Except to the extent it would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Each Loan Party has obtained and holds all Permits required in respect of
all Real Property and for any other property otherwise operated by or on behalf
of, or for the benefit of, such person and for the operation of each of its
businesses as presently conducted and as proposed to be conducted, (b) all such
Permits are in full force and effect, and each Loan Party has performed and
observed all requirements of such Permits, (c) no event has occurred that allows
or results in, or after notice or lapse of time would allow or result in,
revocation or termination by the issuer thereof or in any other impairment of
the rights of the holder of any such Permit, (d) no such Permits contain any
restrictions, either individually or in the aggregate, that are burdensome to
any Loan Party, or to the operation of any of its businesses or any property
owned, leased or otherwise operated by such person, (e) each Loan Party
reasonably believes that each of its Permits will be timely renewed and complied
with, without expense, and that any additional Permits that may be required of
such Person will be timely obtained and complied with, without expense and (f)
neither Holdings nor the Borrower has knowledge or reason to believe that any
Governmental Authority is considering limiting, suspending, revoking or renewing
on burdensome terms any such Permit.
SECTION 3.27 Anti-Terrorism Laws.(a) None of Holdings, the Borrower or any
of the Subsidiaries are in violation of any laws relating to terrorism or money
laundering ("Anti-Terrorism Laws"), including Executive Order No. 13224 on
Terrorist Financing, effective September 23, 2001 (the "Executive Order"), and
the Patriot Act.
(b) None of Holdings, the Borrower or any of the Subsidiaries acting or
benefiting in any capacity in connection with the Loans are any of the
following:
(i) A person or entity that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
(ii) A person or entity owned or controlled by, or acting for or on
behalf of, any person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(iii) A person or entity with which any of the Lenders are prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law;
(iv) A person or entity that commits, threatens or conspires to commit
or supports "terrorism" as defined in the Executive Order; or
(v) A person or entity that is named as a "specially designated
national and blocked person" on the most current list published by the U.S.
Treasury Department
62
Office of Foreign Assets Control at its official website or any replacement
website or other replacement official publication of such list.
(c) None of Holdings, the Borrower or any of the Subsidiaries acting in any
capacity in connection with the Loans (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the
benefit of any person described in clause (b) above, (ii) deals in, or otherwise
engages in any transaction relating to, any property or interests in property
blocked pursuant to the Executive Order, or (iii) engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
SECTION 3.28 UK Pensions. Neither the UK Guarantor nor any other Subsidiary
incorporated in England and Wales has ever participated in a UK defined benefit
pension plan or been associated or connected with the employer in relation to a
UK defined benefit pension plan.
SECTION 3.29 UK Financial Assistance. Neither the execution, delivery and
the performance of any of the Loan Documents nor the incurrence of any
obligations or liabilities thereunder by UK Guarantor constitutes or will
constitute unlawful financial assistance for the purposes of sections 151 to 158
(inclusive) of the United Kingdom Companies Act of 1985 (as amended or otherwise
re-enacted from time to time).
ARTICLE IV.
Conditions of Lending
The obligations of the Lenders to make Loans and the obligations of the
Issuing Bank to issue Letters of Credit are subject to the satisfaction of the
following conditions:
SECTION 4.01 All Credit Events. On the date of each Borrowing, including
each Borrowing of a Swingline Loan, and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been
deemed given in accordance with Section 2.03) or, in the case of the
issuance, amendment, extension or renewal of a Letter of Credit, the
Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance, amendment, extension or renewal of such Letter of
Credit as required by Section 2.23(b) or, in the case of the Borrowing of a
Swingline Loan, the Swingline Lender and the Administrative Agent shall
have received a notice requesting such Swingline Loan as required by
Section 2.22(b).
(b) The representations and warranties set forth in each Loan Document
shall be true and correct in all material respects on and as of the date of
such Credit Event with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects on and as of
such earlier date.
63
(c) At the time of and immediately after such Credit Event, no Event
of Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a joint and several
representation and warranty by each of Holdings and the Borrower on the date of
such Credit Event as to the matters specified in paragraphs (b) and (c) of this
Section 4.01.
SECTION 4.02 First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of (i)
Xxxxxx, Cutler, Pickering, Xxxx and Xxxx LLP, counsel for Holdings, the
Borrower and the Domestic Subsidiaries, substantially to the effect set
forth in Exhibit I, and (ii) each special and local counsel to Holdings,
the Borrower and the Subsidiaries as the Administrative Agent may
reasonably request, in each case (A) dated the Closing Date, (B) addressed
to the Administrative Agent, the Issuing Bank, the Arranger and the Lenders
and (C) covering such matters relating to the Loan Documents and the
Transactions as the Administrative Agent shall reasonably request and which
are customary for transactions of the type contemplated herein, and
Holdings, the Borrower and the Subsidiaries hereby request such counsel to
deliver such opinions.
(b) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation or other formation documents,
including all amendments thereto, of each Loan Party, certified (to the
extent available in any non-U.S. jurisdiction) as of a recent date by the
Secretary of State of the state of its organization (or similar
Governmental Authority in any foreign jurisdiction with respect to any Loan
Party organized outside the United States), and a certificate as to the
good standing of each Loan Party as of a recent date, from such Secretary
of State (or similar Governmental Authority in any foreign jurisdiction
with respect to any Loan Party organized outside the United States); (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Closing Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws (or similar governing documentation) of
such Loan Party as in effect on the Closing Date and at all times since a
date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors or similar governing body of such Loan
Party authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party, in the case of the Borrower, the
borrowings hereunder, in the case of each Loan Party, the granting of the
Liens contemplated to be granted by it under the Security Documents and, in
the case of each Guarantor, the Guaranteeing of the Obligations as
contemplated by the Guarantee and Collateral Agreement and other Loan
Documents, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate or
articles of incorporation or other formation documents of such Loan Party
have not been amended since the date of the last amendment thereto shown on
the certificate of good standing furnished pursuant to clause (i) above and
(D) as to the incumbency and specimen signature of each officer executing
any Loan Document or any other document delivered in connection herewith on
behalf of such Loan Party; (iii) a certificate of another officer as to the
incumbency
64
and specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to (ii) above; and (iv) such other documents as
the Administrative Agent, the Issuing Bank or the Lenders may reasonably
request.
(c) The Administrative Agent shall have been paid for the account of
the agents and the Lenders, as applicable, all Fees (including reasonable
fees and expenses of counsel) due and payable on or before the Closing Date
(including all such fees described in the Fee Letter).
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received evidence that
satisfactory insurance, customarily obtained by companies engaged in
businesses similar in type to that engaged in by Holdings, the Borrower and
the Target, has been procured (together with a customary insurance broker's
letter), as further detailed in Section 5.02.
(f) The Administrative Agent shall have received (i) this Agreement,
executed and delivered by a duly authorized officer of each of Holdings and
the Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of each of the Borrower and each
Subsidiary Guarantor that is a Domestic Subsidiary, (iii) the Intellectual
Property Security Agreements, executed and delivered by a duly authorized
officer of each Loan Party thereto, (iv) if requested by any Lender
pursuant to Section 2.04, a promissory note or notes conforming to the
requirements of such Section and executed and delivered by a duly
authorized officer of the Borrower, (v) a Lender Addendum executed and
delivered by each Lender and accepted by the Borrower and (vi) all other
Security Documents executed and delivered by a duly authorized officer of
each other Loan Party party thereto.
(g) The Collateral Agent, for the ratable benefit of the Secured
Parties, shall have been granted on the Closing Date first priority
perfected Liens on the Collateral (subject, in the case of all Collateral
other than Pledged Collateral, only to Liens expressly permitted by Section
6.02) and customary Guarantees from the Guarantors and shall have received
such other reports, documents and agreements as the Collateral Agent shall
reasonably request and which are customarily delivered in connection with
security interests in real property assets. The Pledged Collateral and all
equity securities of the Borrower and any other applicable subsidiary of
Holdings shall have been duly and validly pledged under the applicable
Security Documents to the Collateral Agent, for the ratable benefit of the
Secured Parties, and certificates representing such Pledged Collateral and
equity securities in the Borrower and any other applicable Subsidiary of
Holdings, accompanied by instruments of transfer and stock powers endorsed
in blank, shall be in the actual possession of the Collateral Agent or as
otherwise required under applicable law.
(h) The Collateral Agent shall have received a duly executed
Perfection Certificate dated on or prior to the Closing Date. The
Collateral Agent shall have
65
received the results of a recent Lien and judgment search in each relevant
jurisdiction with respect to Holdings, the Borrower and those of the
Subsidiaries that shall be Subsidiary Guarantors or shall otherwise have
assets that are included in the Collateral, and such search shall reveal no
Liens on any of the assets of Holdings, the Borrower or any of such
Subsidiaries except, in the case of Collateral other than Pledged
Collateral, for Liens expressly permitted by Section 6.02 and except for
Liens to be discharged on or prior to the Closing Date pursuant to
documentation reasonably satisfactory to the Collateral Agent.
(i) The Acquisition and the Acquisition Transactions shall be
consummated simultaneously with the initial funding of the Term Loans
hereunder in accordance with applicable law and on the terms described in
the term sheets to the Commitment Letter; the Purchase Agreement and all
other related documentation shall be satisfactory to the Administrative
Agent and the Administrative Agent shall be reasonably satisfied with the
capitalization, structure and equity ownership of Holdings and the Borrower
after giving effect to the Transactions.
(j) After giving effect to the Transactions and the other transactions
contemplated hereby, Holdings and its Subsidiaries shall have outstanding
no Indebtedness or preferred stock other than (i) the Loans and other
extensions of credit hereunder and (ii) other limited Indebtedness
permitted by Section 6.01.
(k) The Administrative Agent shall have received (i) U.S. GAAP audited
consolidated balance sheets and related statements of income, stockholders'
equity and cash flows of the Target (prepared in accordance with Regulation
S-X under the Securities Act of 1933, as amended) for the fiscal years
ending December 31, 2004, December 31, 2005 and December 31, 2006 (and, to
the extent available, the related unaudited consolidating financial
statements) all audited by independent public accountants of recognized
national standing and acceptable to Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present the
financial condition and results of operations of the Target on a
consolidated basis in accordance with GAAP consistently applied and (ii)
U.S. GAAP unaudited consolidated and consolidating balance sheets and
related statements of income, stockholders' equity and cash flows of the
Target for each subsequent fiscal quarter ended 30 days before the Closing
Date, in each case under clauses (a) and (b) above which financial
statements shall be satisfactory in all respects to the Administrative
Agent.
(l) The Administrative Agent shall have received a certificate from
the chief financial officer of Holdings certifying that Holdings, the
Borrower and each of the Subsidiary Guarantors on a consolidated basis,
after giving effect to the Transactions and the other transactions
contemplated hereby, are solvent.
(m) All material non-governmental third parties shall have approved or
consented to the Acquisition and the other transactions contemplated
thereby to the extent required by the Purchase Agreement and all material
non-governmental third parties shall have approved or consented to the
other Transactions, all applicable appeal periods shall
66
have expired and there shall be no litigation, governmental, administrative
or judicial action, actual or threatened, that could reasonably be expected
to restrain, prevent or impose materially burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(n) The Administrative Agent shall have received landlord waiver and
access agreements from the landlord with respect to each leased Real
Property of Borrower listed on Schedule 4.02(n), confirming the
nonexistence of any default thereunder and certain other information with
respect to such lease, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral
Agent.
ARTICLE V.
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document shall have
been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, each of Holdings
and the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01 Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
necessary for the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated; comply
with all applicable laws, rules, regulations and decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted, except where
the failure to comply could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; comply with the terms of, and
enforce its rights under, each material lease of real property and each other
material agreement so as to not permit any material uncured default on its part
to exist thereunder; and at all times maintain and preserve all property
necessary for the conduct of such business and keep such property in good
repair, working order and condition (ordinary wear and tear exception) in order
that the business carried on in connection therewith may be properly conducted
at all times; provided however, that nothing in this Section 5.01(b) shall
prevent (i) sales of assets, consolidations or mergers by or involving Holdings,
the Borrower or any Subsidiaries to the extent permitted under Section 6.05 or
(ii) the abandonment by Holdings, the Borrower or any Subsidiaries of any
rights, franchises, licenses and patents that Holdings, the Borrower or any
Subsidiaries reasonably determine are not useful to its business.
SECTION 5.02 Insurance. Keep its insurable properties adequately insured at
all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks (and with such deductibles,
retentions and exclusions), including fire and
67
other risks insured against by extended coverage, as is customary with companies
in the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; maintain such other
insurance as may be required by law; and maintain such other insurance as
otherwise required by the Security Documents (and comply with all covenants in
the Security Documents with respect thereto).
SECTION 5.03 Obligations and Taxes. Pay its Material Indebtedness and other
material obligations promptly and in accordance with their terms and pay and
discharge promptly when due all material Taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, may be reasonably expected to give rise to a Lien upon such properties
or any part thereof; provided, however, that such payment and discharge shall
not be required with respect to any such Tax, assessment, charge, levy or claim
so long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and Holdings, the Borrower or the applicable Subsidiary
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend any collection action
of the contested obligation, tax, assessment or charge and enforcement of a
Lien. Without prejudice to the foregoing, the Borrower and Holdings shall
promptly pay and shall procure that each other subsidiary shall promptly pay all
debts which, pursuant to the provisions of sections 98 and/or 285 of the
Companies Xxx 0000 of Ireland or analogous provision of law or by-laws or rules
applicable to it, are to be paid in priority to all other debts in the winding
up of a company and upon the appointment of a receiver under or the taking of
possession of property comprised in a debenture secured by a floating charge;
provided, however, that the payment of such debts shall not be required with
respect to any such debts so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and Holdings, the Borrower or
the applicable Subsidiary shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest operates to
suspend any collection action with respect to such debts.
SECTION 5.04 Financial Statements, Reports, etc. In the case of Holdings
and the Borrower, furnish to the Administrative Agent or to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
balance sheet and related statements of income, stockholders' equity and
cash flows showing the financial condition of Holdings and its consolidated
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Subsidiaries during such year,
together with comparative figures for the immediately preceding fiscal
year, all audited by Ernst & Young LLP or other independent public
accountants of recognized national standing and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly present in
all material respects the financial condition and results of operations of
Holdings and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
68
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
statements of income, stockholders' equity and cash flows showing the
financial condition of Holdings and its consolidated Subsidiaries as of the
close of such fiscal quarter and the results of its operations and the
operations of such Subsidiaries during such fiscal quarter and the then
elapsed portion of the fiscal year, and comparative figures for the same
periods in the immediately preceding fiscal year, all certified by one of
its Financial Officers as fairly presenting the financial condition and
results of operations of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) [intentionally omitted];
(d) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of the Financial Officer
certifying such statements (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Section
6.11, Section 6.12 and Section 6.13, and, in the case of a certificate
delivered with the financial statements required by paragraph (a) above,
setting forth the Borrower's calculation of Excess Cash Flow;
(e) [intentionally omitted];
(f) within 90 days after the end of each fiscal year of Holdings, a
detailed consolidated budget for the following fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flows as of the end of and for such following fiscal
year and setting forth the assumptions used for purposes of preparing such
budget) and, promptly when available, any significant revisions of such
budget;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(h) promptly after the receipt thereof by Holdings, the Borrower or
any of the Subsidiaries, a copy of any "management letter" (whether in
final or draft form) received by any such person from its certified public
accountants and the management's response thereto; and
(i) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Holdings, the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
69
Documents required to be delivered pursuant to this Section 5.04 may be
delivered by electronic mail; provided, that the Borrower shall deliver paper
copies of such documents to the Administrative Agent upon request.
SECTION 5.05 Litigation and Other Notices. Furnish to the Administrative
Agent written notice of the following promptly after any Responsible Officer of
any Loan Party obtains knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written notice of intention
of any person to file or commence, any action, suit or proceeding, whether
at law or in equity or by or before any arbitrator or Governmental
Authority, against Holdings, the Borrower or any Subsidiary that could
reasonably be expected to result in a Material Adverse Effect; and
(c) the occurrence of any ERISA Event, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $10,000,000; and
(d) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06 Information Regarding Collateral. (a) Furnish to each of the
Administrative Agent and the Collateral Agent prompt written notice of any
change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity or corporate structure or (iv) in
any Loan Party's Federal Taxpayer Identification Number. Each of Holdings and
the Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the UCC, any similar
perfection scheme or otherwise and all other actions have been taken that are
required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral. Each of Holdings and the Borrower also agrees promptly to notify
each of the Administrative Agent and the Collateral Agent if any material
portion of the Collateral is damaged or destroyed.
SECTION 5.07 Maintaining Records; Access to Properties and Inspections;
Environmental Assessments. (a) Keep proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law are made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of its
subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
70
properties of Holdings or the Borrower, as the case may be, or any of its
Subsidiaries at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Holdings or the Borrower, as the case may
be, or any of its Subsidiaries with the officers thereof and independent
accountants therefor.
(b) At its election, the Administrative Agent or any Lender may, at its own
cost and expense, retain an independent engineer or environmental consultant to
conduct an environmental assessment of any Mortgaged Property or facility of any
Loan Party. Each of Holdings and the Borrower shall, and shall cause each of the
Subsidiaries to, cooperate in the performance of any such environmental
assessment and permit any such engineer or consultant designated by the
Administrative Agent or such Lender to have full access to each property or
facility at reasonable times and after reasonable notice to the Borrower of the
plans to conduct such an environmental assessment. Environmental assessments
conducted under this paragraph shall be limited to visual inspections of the
Mortgaged Property or facility, interviews with representatives of the Loan
Parties or facility personnel, and review of applicable records and documents
pertaining to the property or facility.
(c) In the event that the Administrative Agent or any Lender shall have
reason to believe that Hazardous Materials have been Released or are threatened
to be Released on or from any Mortgaged Property or other facility of Holdings,
the Borrower or the Subsidiaries or that any such property or facility is not
being operated in compliance with applicable Environmental Law, in each case
where such Release or non-compliance with applicable Environmental Law could
reasonable be expected to, individually or in the aggregate, result in
liabilities to the Loan Parties in excess of $10,000,000, the Administrative
Agent may, at its election and after reasonable notice to the Borrower, retain
an independent engineer or other qualified environmental consultant to evaluate
whether Hazardous Materials are present in the soil, groundwater, or surface
water at such Mortgaged Property or facility or whether the facilities or
properties are being operated and maintained in compliance with applicable
Environmental Laws. Such environmental assessments may include detailed visual
inspections of the Mortgaged Property or facility, including any and all storage
areas, storage tanks, drains, dry xxxxx and leaching areas, and the taking of
soil samples, surface water samples and groundwater samples as well as such
other reasonable investigations or analyses as are necessary. The scope of any
such environmental assessments under this paragraph shall be determined in the
reasonable discretion of the Administrative Agent. Each of Holdings and the
Borrower shall, and shall cause each of the Subsidiaries to, cooperate in the
performance of any such environmental assessment and permit any such engineer or
consultant designated by the Administrative Agent to have full access to each
property or facility at reasonable times and after reasonable notice to the
Borrower of the plans to conduct such an environmental assessment. All
environmental assessments conducted pursuant to this paragraph shall be at the
Borrower's sole cost and expense.
SECTION 5.08 Use of Proceeds. Use the proceeds of the Loans and request the
issuance of Letters of Credit only for the purposes set forth in Section 3.13.
SECTION 5.09 Additional Collateral, etc. (a) With respect to any
Collateral (other than Real Property) acquired after the Closing Date or, in the
case of any material
71
Collateral moved after the Closing Date (or for which ownership has been
transferred to another Loan Party) by the Borrower or any other Loan Party
(other than any Collateral described in paragraphs (b), (c) or (d) of this
Section) as to which the Collateral Agent, for the benefit of the Secured
Parties, does not have a first priority perfected security interest (other than
due to prior Liens expressly permitted under Section 6.02), promptly (and, in
any event, within 10 days following the date of such acquisition or transfer)
(i) execute and deliver to the Administrative Agent and the Collateral Agent
such amendments to the Security Documents or such new Security Documents as the
Collateral Agent deems reasonably necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in
such Collateral consistent with the provisions hereof and the other Loan
Documents and (ii) take all actions reasonably necessary or advisable to grant
to, or continue on behalf of, the Collateral Agent, for the benefit of the
Secured Parties, a perfected first priority security interest in such Collateral
subject to Liens permitted under Section 6.02 hereof, including the filing of
UCC financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be reasonably requested
by the Administrative Agent or the Collateral Agent.
(b) With respect to any fee interest in any Collateral consisting of Real
Property having a value in excess of $500,000 acquired after the Closing Date by
the Borrower or any other Loan Party, promptly (and, in any event, within 60
days following the date of such acquisition) (i) execute and deliver a first
priority Mortgage (subject to Liens permitted by Section 6.02) in favor of the
Collateral Agent, for the benefit of the Secured Parties, covering such Real
Property and complying with the provisions herein and in the Security Documents,
(ii) provide the Secured Parties with title and extended coverage insurance in
an amount at least equal to the purchase price of such Real Property (or such
other amount as the Administrative Agent shall reasonably specify), together
with such endorsements as are reasonably required by the Administrative Agent
and the Collateral Agent and are obtainable in the jurisdiction in which such
Real Property in located, as well as a current ALTA survey thereof and flood
insurance, if applicable, all in form and substance reasonably satisfactory to
the Administrative Agent and the Collateral Agent, and only to the extent it is
customary to receive or obtain the foregoing in connection with a Mortgage in
such jurisdiction, (iii) if reasonably requested by the Administrative Agent,
deliver to the Administrative Agent and the Collateral Agent legal opinions
relating to the matters described above, and only to the extent it is customary
to receive or obtain the foregoing in connection with a Mortgage in such
jurisdiction, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and the Collateral Agent and
(iv) deliver to the Administrative Agent a notice identifying, and upon the
Administrative Agent's request, provide a copy of, the consultant's reports,
environmental site assessments or other documents relied upon by the Borrower or
any other Loan Party, if any, to determine that any such real property included
in such Collateral does not contain Hazardous Materials of a form or type or in
a quantity or location that could reasonably be expected to result in a material
Environmental Liability.
(c) With respect to any Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired after the Closing Date (which, for the purposes
of this paragraph, shall include any existing Subsidiary that ceases to be an
Excluded Foreign Subsidiary at any time after the Closing Date) by Holdings, the
Borrower or any of the Subsidiaries, promptly (and, in any event, within 10 days
following such creation or the date of such acquisition) (i) execute and
72
deliver to the Administrative Agent and the Collateral Agent such amendments to
the existing Security Documents or enter into new Security Documents as the
Administrative Agent or the Collateral Agent deems necessary or advisable to
grant to the Collateral Agent, for the benefit of the Secured Parties, a valid,
perfected first priority security interest the Equity Interests in such new
Subsidiary that are owned by Holdings, the Borrower or any of the Subsidiaries,
(ii) deliver to the Collateral Agent the certificates, if any, representing such
Equity Interests, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of Holdings, the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the existing Security Documents or enter into the new Security
Documents (and provide Guarantees of the Obligations) and (B) to take such
actions necessary or advisable to grant to the Collateral Agent, for the benefit
of the Secured Parties, a perfected first priority security interest in the
Collateral described in the Security Documents with respect to such new
Subsidiary, including the recording of instruments in the United States Patent
and Trademark Office and the United States Copyright Office and the filing of
UCC financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement, the Intellectual Property Security Agreement
or by law or as may be requested by the Administrative Agent or the Collateral
Agent, only to the extent it is customary to receive or obtain the foregoing in
such jurisdiction and (iv) if requested by the Administrative Agent, deliver to
the Administrative Agent and the Collateral Agent legal opinions relating to the
matters described above, only to the extent it is customary to receive or obtain
the foregoing in such jurisdiction, which opinions, if required, shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent and the Collateral Agent.
(d) [intentionally omitted]
SECTION 5.10 Further Assurances. From time to time duly authorize, execute
and deliver, or cause to be duly authorized, executed and delivered, such
additional instruments, certificates, financing statements, agreements or
documents, and take all such actions (including filing UCC and other financing
statements), as the Administrative Agent or the Collateral Agent may reasonably
request, for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent, the Collateral Agent and the Secured
Parties with respect to the Collateral (or with respect to any additions thereto
or replacements or proceeds or products thereof or with respect to any other
property or assets hereafter acquired by Holdings, the Borrower or any
Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or
thereto. Upon the exercise by the Administrative Agent, the Collateral Agent or
any Lender of any power, right, privilege or remedy pursuant to this Agreement
or the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, each of Holdings
and the Borrower will execute and deliver, or will cause the execution and
delivery of, all applications, certifications, instruments and other documents
and papers that the Administrative Agent, the Collateral Agent or such Lender
may be required to obtain from Holdings, the Borrower or any of the Subsidiaries
for such governmental consent, approval, recording, qualification or
authorization.
SECTION 5.11 Interest Rate Protection. The Borrower shall ensure that for
at least two years following the Closing Date no less than 50% of the Borrower's
long-term Indebtedness effectively bears interest at a fixed rate, either by its
terms or through the Borrower
73
entering into, as promptly as practicable (and in any event no later than the
180th day after the Closing Date), Hedging Agreements acceptable to the
Administrative Agent.
SECTION 5.12 Maintenance of Ratings. The Borrower will at all times use
commercially reasonable efforts to maintain a rating of the Facilities and
corporate rating for the Borrower, in each case issued by Xxxxx'x Investors
Services, Inc. and Standard & Poor's Ratings Services.
SECTION 5.13 Centre of Main Interest. In the case of the UK Guarantor, for
the purposes of The Council of the European Union Regulation No. 1346/2000 on
Insolvency Proceedings (the "Regulation"), maintain its centre of main interest
(as that term is used in Article 3(1) of the Regulation) in England and Wales
and ensure that it has no "establishment" (as that term is used in Article 2(h)
of the Regulations) in any other jurisdiction.
SECTION 5.14 UK Data Protection. In the case of the UK Guarantor, comply
with the UK Data Protection Act 1998 and/or any analogous law.
ARTICLE VI.
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and the principal of and interest on each Loan, all Fees
and all other expenses or amounts payable under any Loan Document have been paid
in full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, neither Holdings nor the
Borrower will, nor will it cause or permit any of the Subsidiaries to:
SECTION 6.01 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and any Permitted Refinancing Indebtedness in respect of any such
Indebtedness;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) unsecured intercompany Indebtedness of Holdings, the Borrower and
the Subsidiaries to the extent permitted by Section 6.04(a) so long as such
Indebtedness is, in the case of borrowed money, subordinated to the
Obligations pursuant to an Affiliate Subordination Agreement;
(d) Capital Lease Obligations, Synthetic Lease Obligations and
obligations in connection with purchase money financing in an aggregate
principal amount of all Indebtedness incurred pursuant to this Section
6.01(d), not exceeding $5,000,000 at any time outstanding;
(e) Indebtedness of any person that becomes a Subsidiary in connection
with a Permitted Acquisition after the date hereof (and any Permitted
Refinancing
74
Indebtedness in respect of any such Indebtedness); provided that (i) such
Indebtedness exists at the time such person becomes a Subsidiary and is not
created in contemplation of or in connection with such person becoming a
Subsidiary, (ii) immediately before and after such person becomes a
Subsidiary, no Default or Event of Default shall have occurred and be
continuing and (iii) the aggregate principal amount of Indebtedness
permitted by this Section 6.01(e) shall not exceed $5,000,000 at any time
outstanding;
(f) Indebtedness under performance bonds or with respect to workers'
compensation claims, in each case incurred in the ordinary course of
business;
(g) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds in the ordinary course of business;
provided that such Indebtedness is promptly covered by Holdings, the
Borrower or any Subsidiary;
(h) Indebtedness under Hedging Agreements required by Section 5.11;
(i) Guarantees of Indebtedness under this Section 6.01, subject to
restrictions on recourse under Section 6.01(k) below;
(j) Indebtedness under foreign exchange contracts incurred in the
ordinary course of business;
(k) Indebtedness incurred by Foreign Subsidiaries that are not Loan
Parties to any Persons (other than to Holdings or any Subsidiary); provided
that recourse for any such Indebtedness shall only be against such Foreign
Subsidiaries and the aggregate amount of such Indebtedness shall not exceed
$2,500,000 in the aggregate at any time outstanding for all such Foreign
Subsidiaries; and
(l) other unsecured Indebtedness of Holdings, the Borrower or the
Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at
any time outstanding.
SECTION 6.02 Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of Holdings, the Borrower and the
Subsidiaries existing on the date hereof and set forth in Schedule 6.02;
provided that such Liens shall secure only those obligations which they
secure on the date hereof and refinancings, extensions, renewals and
replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings, the Borrower, or any Subsidiary; provided
that (i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply
75
to any other property or assets of Holdings, the Borrower or any Subsidiary
and (iii) such Liens secure Indebtedness permitted by Section 6.01(e);
(d) Liens for Taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by operation of law, such as carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and securing obligations that
are not due and payable or which are being contested in compliance with
Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, do not materially detract from
the value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower, Holdings or any of the
Subsidiaries or the ability of the Borrower, Holdings or any of the
Subsidiaries to utilize such property for its intended purpose or prejudice
the Liens under the Security Documents;
(i) purchase money security interests (including Liens arising from
precautionary UCC financing statements covering assets subject to a Capital
Lease Obligation) in real property, improvements thereto or other fixed or
capital assets hereafter acquired (or, in the case of improvements,
constructed) by Holdings, the Borrower, or any Subsidiary and all products,
accessions, improvements and proceeds thereof; provided that (i) such
security interests secure Indebtedness permitted by Section 6.01(d), (ii)
such security interests are incurred, and the Indebtedness secured thereby
is created, within 180 days after such acquisition (or construction) and
(iii) such security interests do not apply to any other property or assets
of Holdings, the Borrower or any Subsidiary;
(j) judgment Liens securing judgments not constituting an Event of
Default under Article VII;
(k) any interest or title of a lessor, sublessor, licensee, licensor
or sublicensor under any lease or license entered into by Holdings, the
Borrower or any of its Subsidiaries in the ordinary course of business or
in connection with intellectual property transferred between Loan Parties
and covering only the assets so leased or licensed;
76
(l) Liens on cash deposits and other funds maintained with a
depository institution, in each case arising in the ordinary course of
business by virtue of any statutory or common law provision relating to
banker's liens; and
(m) other Liens not otherwise permitted by the foregoing paragraphs
(a) through (l) to the extent attaching to properties and assets with an
aggregate fair value at the time of attachment not in excess of, and
securing liabilities not in excess of, $3,000,000 in the aggregate at any
time outstanding.
SECTION 6.03 Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal or mixed, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred unless (a) the sale of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations, Synthetic
Lease Obligations or Liens arising in connection therewith are permitted by
Section 6.01 and Section 6.02, as applicable.
SECTION 6.04 Investments, Loans and Advances. Purchase, hold or acquire any
Equity Interests, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances or capital contributions to, or make or
permit to exist any investment or any other interest in, any other person (all
of the foregoing, "Investments"), except:
(a) (i) Investments by Holdings, the Borrower and the Subsidiaries
existing on the date hereof in or to Holdings, Borrower and the
Subsidiaries and (ii) additional Investments by Holdings, the Borrower and
the Subsidiaries in or to Holdings, the Borrower and the Subsidiaries;
provided that (A) any such Investment in Equity Interests held by a Loan
Party shall be pledged pursuant to the Security Documents (excluding any
Equity Interests in any Excluded Foreign Subsidiary and Equity Interests in
Holdings), (B) the aggregate amount of Investments after the date hereof by
Loan Parties in Subsidiaries that are not Subsidiary Guarantors shall not
exceed $10,000,000 in cash or tangible property at any time outstanding
(net of any repayment or return of funds) and (C) if such Investment shall
be in the form of a loan or advance, such loan or advance made to any Loan
Party shall be unsecured and subordinated to the Obligations pursuant to an
Affiliate Subordination Agreement and, if such loan or advance shall be
made by a Loan Party and is evidenced by a promissory note, such promissory
note shall be pledged to the Collateral Agent for the ratable benefit of
the Secured Parties pursuant to the Security Documents;
(b) Permitted Investments;
(c) Investments received in connection with the bankruptcy,
insolvency, court protection or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
(d) the Borrower, Holdings and the Subsidiaries may make loans and
advances in the ordinary course of business to their respective employees
so long as the
77
aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $1,000,000;
(e) the Acquisition and Permitted Acquisitions;
(f) Investments existing on the date hereof and set forth on Schedule
6.04;
(g) extensions of trade credit in the ordinary course of business;
(h) Investments made as a result of the receipt of non-cash
consideration from a sale, transfer or other disposition of any asset in
compliance with Section 6.05;
(i) intercompany loans and advances to Holdings to the extent that the
Borrower may pay dividends to Holdings pursuant to Section 6.06 (and in
lieu of paying such dividends); provided that such intercompany loans and
advances (i) shall be made for the purposes, and shall be subject to all
the applicable limitations set forth in, Section 6.06 and (ii) shall be
unsecured and subordinated to the Obligations pursuant to an Affiliate
Subordination Agreement;
(j) the Borrower, Holdings and the Subsidiaries may make loans and
advances in the ordinary course of business to content providers, royalty
partners and subcontractors so long as the aggregate principal amount
thereof at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$5,000,000; and
(k) in addition to Investments permitted by paragraphs (a) through (i)
above, additional Investments by the Borrower and the Subsidiaries so long
as the aggregate amount invested, loaned or advanced pursuant to this
paragraph (j) (determined without regard to any write-downs or write-offs
of such investments, loans and advances) does not exceed $5,000,000 in the
aggregate.
SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions.
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or liquidate or dissolve, or sell, transfer,
lease, issue or otherwise dispose of (in one transaction or in a series of
transactions) any assets (whether now owned or hereafter acquired) of Holdings
or any Subsidiary, the Equity Interests of any Subsidiary, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except for (i) the purchase,
disposition and sale by Holdings, the Borrower or any Subsidiary of inventory or
the licensing of intellectual property in the ordinary course of business, (ii)
the sale or discount by Holdings, the Borrower or any Subsidiary in each case
without recourse and in the ordinary course of business of overdue accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof consistent with customary industry
practice (and not as part of any bulk sale or financing transaction), (iii) if
at the time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing, the sale, transfer,
lease, issue or other disposition of any property by (x) any Subsidiary that is
not a Loan Party to Holdings or any Subsidiary and (y) any other Loan Party to
any other Loan Party; provided, that (A) in the case of clause (y) after giving
effect to any such disposition by Borrower, Borrower and the Irish
78
Guarantors retain assets and operations sufficient to contribute at least 70% of
consolidated EBITDA for the twelve month period most recently ending and (B) in
the case of this clause (iii), the Loan Parties shall have complied with Section
5.09(a) of this Agreement to maintain the Collateral Agent's perfected Lien on
any assets transferred to a Loan Party, including, without limitation, ensuring
that Collateral Agent has a perfected Lien on any intellectual property that is
transferred between or among Loan Parties, (iv) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing, the sale, transfer, lease, issue or other
disposition of the Non-Core Netg Assets, (v) the sale, transfer, lease or
disposition by Holdings or any Subsidiary of any obsolete, surplus, worn out, or
no longer useful, property, whether now owned or hereafter acquired, in the
ordinary course of business, (vi) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have occurred and be
continuing, the sale, transfer, lease, issue or other disposition of any other
property by Holdings or any Subsidiary; provided, that (A) such sale, transfer,
lease or disposition is for consideration at least 75% of which is cash (and no
portion of the remaining consideration shall be in the form of Indebtedness of
Holdings, the Borrower or any Subsidiary), (B) such consideration is at least
equal to the fair market value of the assets being sold, transferred, leased or
disposed of and (C) the fair market value of all assets sold, transferred,
leased or disposed of pursuant to this clause (vi) shall not exceed $10,000,000
in any fiscal year and (vii) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing, (x) the merger or consolidation of any wholly owned Subsidiary
(other than the Borrower) into or with the Borrower in a transaction in which
the Borrower is the surviving corporation, (y) the merger or consolidation of
any wholly owned Subsidiary (other than the Borrower) into or with any other
wholly owned Subsidiary (other than the Borrower) in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration (provided that
if any party to any such transaction is (A) a Loan Party, the surviving entity
of such transaction shall be a Loan Party and (B) a Domestic Subsidiary, the
surviving entity of such transaction shall be a Domestic Subsidiary) and (z)
Permitted Acquisitions by any Loan Party.
SECTION 6.06 Restricted Payments; Restrictive Agreements. (a) Declare or
make, or agree to declare or make, directly or indirectly, any Restricted
Payment (including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided, however, that (i) any
Subsidiary (other than the Borrower) may declare and pay dividends or make other
distributions ratably to its equity holders, (ii) Holdings or any Subsidiary may
make Restricted Payments to the extent any such Restricted Payment constitutes
an Investment permitted under Section 6.04, (iii) so long as no Event of Default
or Default shall have occurred and be continuing or would result therefrom,
Holdings may make dividends to its shareholders, Holdings may purchase or
repurchase Equity Interests in Holdings, and the Borrower may make distributions
to Holdings to permit Holdings to make such dividends, purchases and repurchases
or make payments to employees of Holdings, the Borrower or the Subsidiaries upon
termination of employment in connection with the exercise of stock options,
stock appreciation rights or similar equity incentives or equity based
incentives pursuant to management incentive plans or in connection with the
death or disability of such employees; provided, that in each case under this
clause (iii), (A) any such Restricted Payment shall not be made until the fiscal
year commencing February 1, 2008, (B) the aggregate amount of Restricted
Payments made under this clause (iii) and clause (v) below combined in any
fiscal year shall not
79
exceed an amount equal to the sum of 50% of Excess Cash Flow for the immediately
preceding fiscal year (the "Base Amount") (commencing with the fiscal year
ending January 31, 2008) plus the unused portion of any Base Amount from prior
fiscal years (but not prior to the fiscal year ending January 31, 2008) and (C)
no such Restricted Payment shall be made unless, after giving effect thereto,
the Leverage Ratio would be no greater than 2.75:1.0 as of the most recently
completed fiscal quarter ending prior to the date of such Restricted Payment for
which the financial statements and certificates described in Sections 5.04(a) or
5.04(b) and 5.04(d) were required to be delivered, (iv) the Borrower may make
Restricted Payments to Holdings (x) in an amount not to exceed, when taken
together with the aggregate amount of all loans or advances made pursuant to
Section 6.04(i) for such purpose, $500,000 in any fiscal year to the extent
necessary to pay general corporate and overhead expenses incurred by Holdings in
the ordinary course of business and (y) in an amount necessary to pay the Tax
liabilities of Holdings directly attributable to (or arising as a result of) the
operations of the Borrower and the Subsidiaries; provided that (A) the amount of
such dividends pursuant to clause (iv) (y) shall not exceed the amount that the
Borrower and the Subsidiaries would be required to pay in respect of Federal,
State and local Taxes were the Borrower and the Subsidiaries to pay such Taxes
as stand-alone taxpayers and (B) all Restricted Payments made to Holdings
pursuant to clause (iv) shall be used by Holdings for the purpose specified
herein within 20 days of the receipt thereof, and (v) in connection with the
Irish Recapitalization, Holdings and its Subsidiaries may engage in the
following transactions, in each case in accordance with all applicable laws,
including the Companies Xxx 0000 of Ireland and so long as no Event of Default
or Default shall have occurred and be continuing or would result therefrom: (A)
Holdings and any Subsidiary may purchase, repurchase or redeem Equity Interests
in Holdings; provided, that in each case under this (v)(A), (1) any such
Restricted Payment shall not be made until the fiscal year commencing February
1, 2008, (2) the aggregate amount Restricted Payments made under this clause (v)
and clause (iii) above combined in any fiscal year shall not exceed an amount
equal to the sum of 50% of Excess Cash Flow for the immediately preceding fiscal
year ("Base Amount") (commencing with the fiscal year ending January 31, 2008)
plus the unused portion of any Base Amount from the prior fiscal years (but not
prior to the fiscal year ending January 31, 2008) and (3) no such Restricted
Payment shall be made unless, after giving effect thereto, the Leverage Ratio
would be no greater than 2.75:1.0 as of the most recently completed fiscal
quarter ending prior to the date of such Restricted Payment for which the
financial statements and certificates described in Sections 5.04(a) or 5.04(b)
and 5.04(d) were required to be delivered, (B) Holdings may cancel any Equity
Interests so repurchased or redeemed or hold same as treasury shares, (C) the
Borrower or any Subsidiary may relinquish any Equity Interests held by it in
Holdings to Holdings for the purpose of such cancellation, and (D) the Borrower
and any Subsidiary may declare and/or pay dividends to Holdings to enable
Holdings to effect the transactions referred to in clause (v)(A) above to the
extent Holdings is permitted to make Restricted Payments under clause (v)(A)
above.
(b) Enter into, incur or permit to exist any agreement or other arrangement
that prohibits, restricts or imposes any condition upon (i) the ability of
Holdings, the Borrower or any Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, or (ii) the ability of any Subsidiary
to pay dividends or other distributions with respect to any of its Equity
Interests or to make or repay loans or advances to the Borrower, Holdings or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (A) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan
80
Document, (B) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (C) the
foregoing shall not apply to restrictions and conditions imposed on any
Subsidiary that is not a Loan Party by the terms of any Indebtedness of such
Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and
(E) clause (i) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
SECTION 6.07 Transactions with Affiliates. Except for transactions by or
among Loan Parties, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (a) Holdings and its
Subsidiaries may sell and license goods to each other on an arm's-length basis
in the ordinary course of their business, (b) Holdings, the Borrower or any
Subsidiary may engage in any other foregoing transactions in the ordinary course
of business at prices and on terms and conditions not less favorable to
Holdings, the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (c) Restricted Payments may be
made to the extent provided in Section 6.06, (d) assets may be transferred in
accordance with Section 6.05(iii) and (e) Holdings and its Subsidiaries may
engage in the transactions described in Section 6.06(a)(v) in connection with
the Irish Recapitalization.
SECTION 6.08 Business of Holdings, the Borrower and Subsidiaries;
Limitation on Hedging Agreements. (a) With respect to Holdings, the Borrower and
the Subsidiaries, engage at any time in any business or business activity other
than the business conducted by it as of the date hereof and business activities
reasonably incidental thereto and reasonable extensions thereof.
(b) Enter into any Hedging Agreement other than (i) any such agreement or
arrangement entered into in the ordinary course of business and consistent with
prudent business practice to hedge or mitigate risks to which Holdings, the
Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities or (ii) any such agreement entered into to hedge
against fluctuations in interest rates or currency incurred in the ordinary
course of business and consistent with prudent business practice; provided that
in each case such agreements or arrangements shall not have been entered into
for speculation purposes.
(c) The Cayman Guarantor shall not engage in any business activities, incur
any material obligations (other than pursuant to the Loan Documents), or
maintain any material assets (other than as described in the Cayman Security
Documents).
SECTION 6.09 Other Indebtedness and Agreements; Amendments to Acquisition
Documentation. (a) Permit any waiver, supplement, modification, amendment,
termination or release of any indenture, instrument or agreement pursuant to
which any Material Indebtedness of Holdings, the Borrower or any of the
Subsidiaries is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release would materially increase the
81
obligations of the obligor or confer additional material rights on the holder of
such Indebtedness in a manner adverse to Holdings, the Borrower, any of the
Subsidiaries or the Lenders.
(b) (i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement)
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, any Indebtedness, except (A) the payment of
the Indebtedness created hereunder, (B) refinancings of Indebtedness permitted
by Section 6.01, (C) the payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness, and (D) intercompany Indebtedness permitted hereunder unless any
payments thereon are prohibited by the Affiliate Subordination Agreement or (ii)
pay in cash any amount in respect of any Indebtedness or preferred Equity
Interests that may at the obligor's option be paid in kind or in other
securities.
(c) (i) Permit any waiver, supplement, modification, amendment, termination
or release of, or fail to enforce strictly the terms and conditions of, any of
the indemnities and licenses furnished to Holdings, the Borrower and the
Subsidiaries pursuant to the Acquisition Documentation such that after giving
effect thereto such indemnities or licenses shall be materially less favorable
to the interests of the Loan Parties or the Secured Parties with respect thereto
or (ii) otherwise permit any waiver, supplement, modification, amendment,
termination or release of, or fail to enforce strictly the terms and conditions
of, any of the Acquisition Documentation except to the extent that such waiver,
supplement, modification, amendment, termination or release or failure to
enforce could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.10 Capital Expenditures. Permit the aggregate amount of Capital
Expenditures made by Holdings and the Subsidiaries in any period set forth below
to exceed the amount set forth below for such period:
Period Amount
------ ------------
Fiscal Year ending January 31, 2008 $13,000,0000
Fiscal Year ending January 31, 2009 $13,000,0000
Fiscal Year ending January 31, 2010 $13,000,0000
Fiscal Year ending January 31, 2011 $13,000,0000
Fiscal Year ending January 31, 2012 $13,000,0000
Fiscal Year ending January 31, 2013
(and each fiscal year ending thereafter) $13,000,0000
The amount of permitted Capital Expenditures set forth above in respect of any
fiscal year commencing with the fiscal year ending on January 31, 2008, shall be
increased (but not decreased) by (a) 50% of the amount of unused permitted
Capital Expenditures for the immediately preceding fiscal year less (b) an
amount equal to unused Capital Expenditures carried forward to such preceding
fiscal year.
82
SECTION 6.11 Interest Coverage Ratio. Permit the Interest Coverage Ratio as
of the last day of each fiscal quarter of the Borrower (commencing with the
fiscal quarter ending January 31, 2008) to be less than 2.50:1.0.
SECTION 6.12 Leverage Ratio. Permit the Leverage Ratio as of the last day
of each fiscal quarter of the Borrower set forth below to be greater than the
ratio set forth opposite such period below:
Period Ratio
------ -------
January 31, 2008 4.0:1.0
April 30, 2008 4.0:1.0
July 31, 2008 4.0:1.0
October 31, 2008 3.5:1.0
January 31, 2009 3.5:1.0
April 30, 2009 (and each
fiscal quarter ending
thereafter) 3.0:1.0
SECTION 6.13 Fiscal Year. With respect to Holdings or the Borrower, change
its fiscal year-end to a date other than January 31.
ARTICLE VII.
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in connection
with any Loan Document or the Borrowings or issuances of Letters of Credit
hereunder, or any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument furnished by
a Loan Party in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made by a Loan Party in the payment of any principal
of any Loan or the reimbursement with respect to any L/C Disbursement when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or L/C
Disbursement or any Fee or any other amount (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of three
Business Days;
(d) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in Section 5.01(a), Section 5.02, Section 5.05 or Section 5.08 or in Article VI;
83
(e) default shall be made in the due observance or performance by Holdings,
the Borrower or any Subsidiary of any covenant, condition or agreement contained
in any Loan Document (other than those specified in clauses (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
following the earlier of (i) knowledge thereof by a Responsible Officer of a
Loan Party and (ii) written notice thereof by the Administrative Agent or
Required Lenders to Borrower;
(f) (i) Holdings, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Material
Indebtedness, when and as the same shall become due and payable, or (ii) any
other event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (ii) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or taken or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, the Borrower or any Material Subsidiary, or their
respective debts or of a substantial part of the property or assets of Holdings,
the Borrower or a Material Subsidiary, under Title 11 of the United States Code,
the Bankruptcy and Insolvency Act (Canada) or the Companies' Creditors
Arrangement Act (Canada), in each case as now constituted or hereafter amended,
or any other Federal, state, provincial or foreign bankruptcy, insolvency, court
protection, liquidation, receivership or similar law, (ii) the appointment of a
receiver, trustee, examiner, liquidator, custodian, sequestrator, conservator,
monitor or similar official for Holdings, the Borrower or any Material
Subsidiary or for a substantial part of the property or assets of Holdings, the
Borrower or a Material Subsidiary or (iii) the winding-up, court protection,
dissolution, reorganization, arrangement or liquidation of Holdings, the
Borrower or any Material Subsidiary or a moratorium in suspension of payments on
indebtedness; and such proceeding, petition or appointment shall continue
undismissed or undischarged for 60 days with respect to the Borrower or any
Material Subsidiary or a final order or decree approving or ordering any of the
foregoing shall be entered;
(h) Holdings, the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, the Bankruptcy and Insolvency Act (Canada) or the
Companies' Creditors Arrangement Act (Canada), in each case as now constituted
or hereafter amended, or any other Federal, state, provincial or foreign
bankruptcy, court protection, liquidation, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator, examiner, liquidator, monitor or similar
official for Holdings, the Borrower or any Material Subsidiary or for a
substantial part of the property or assets of Holdings, the Borrower or any
Material Subsidiary, (iv) file an answer admitting the material allegations of a
petition filed against it in any such
84
proceeding, (v) make a general assignment for the benefit of creditors, or (vi)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(i) one or more judgments for the payment of money in an aggregate amount
in excess of $5,000,000 (to the extent not covered by third-party insurance) or
other outstanding judgments that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect shall be rendered
against Holdings, the Borrower, any Subsidiary or any combination thereof, and
the same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of Holdings, the
Borrower or any Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, when taken together with all
other such ERISA Events, could reasonably be expected to result in liability of
the Borrower and its ERISA Affiliates in an aggregate amount exceeding
$10,000,000;
(k) any Security Document for any reason shall cease to be in full force
and effect (other than in accordance with its terms), or any Guarantor shall
deny that it has any further liability under its Guarantee (other than as a
result of the discharge of such Guarantor in accordance with the terms of the
Loan Documents);
(l) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by the Borrower or any other Loan Party not to
be, a valid, perfected and, with respect to the Secured Parties, first priority
(except for Liens permitted in Section 6.02 or such Security Document) Lien on
any material portion of the Collateral covered thereby, except to the extent
that any such loss of perfection or priority results from the failure of the
Collateral Agent to maintain possession of certificates representing Equity
Interests pledged under the Security Documents;
(m) there shall have occurred a Change in Control;
(n) any of the following occurs in respect of the UK Guarantor or other
Loan Party incorporated in England and Wales or in Ireland:
(i) it is, or is deemed for the purposes of any applicable law to be,
unable to pay its debts as they fall due (for UK Guarantors, such phrase to
have the meaning ascribed to it in paragraph (e) of Section 3.24);
(ii) it admits its insolvency or its inability to pay its debts as
they fall due;
(iii) it suspends making payments on any of its debts or announces an
intention to do so;
(iv) by reason of actual or anticipated financial difficulties, it
begins negotiations with any creditor for the rescheduling or restructuring
of any its indebtedness; or
85
(v) a moratorium is declared or instituted in respect of any of its
indebtedness; if a moratorium occurs in respect of such person, the ending
of the moratorium will not remedy any Event of Default caused by the
moratorium; or
(o) any of the following occurs in respect of the UK Guarantor or other
Loan Party incorporated in England and Wales or in Ireland:
(i) any step is taken with a view to a moratorium or a composition,
assignment or similar arrangement with any of its creditors;
(ii) a meeting of its shareholders, directors or other officers is
convened for the purpose of considering any resolution for, to petition for
or to file documents with a court or any registrar for its winding-up,
administration, examinership or dissolution or for the seeking of relief
under any applicable bankruptcy, insolvency, court protection, company or
similar law or any such resolution is passed;
(iii) any person presents a petition or files documents with a court
or any registrar for its winding-up, administration or dissolution or
seeking relief under any applicable bankruptcy, insolvency, court
protection, company or similar law;
(iv) an order for its winding-up, administration or dissolution is
made or other relief is granted under any applicable bankruptcy,
insolvency, court protection, company or similar law;
(v) any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, examiner, receiver, administrative receiver,
administrator or similar officer is appointed in respect of it or any of
its assets;
(vi) its shareholders, directors or other officers request the
appointment of, or give notice of their intention to appoint, a liquidator,
an examiner, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or similar officer in
respect of it or any of its assets; or
(vii) enforcement of any Lien over any of its assets;
provided, that paragraph (o) above does not apply to a petition for winding-up
presented by a creditor which is being contested in good faith and with due
diligence and is discharged or struck out within 21 days.
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event either or both of the following
actions may be taken: (i) the Administrative Agent may, and at the request of
the Majority Facility Lenders with respect to the Revolving Credit Facility
shall, by notice to the Borrower, terminate forthwith the Revolving Credit
Commitments and the Swingline Commitment and (ii) the Administrative Agent may,
and at the request of the Required Lenders shall, declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
86
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding, and the Administrative Agent and the Collateral Agent shall
have the right to take all or any actions and exercise any remedies available to
a secured party under the Security Documents or applicable law or in equity; and
in any event with respect to Holdings or the Borrower described in paragraph (g)
or (h) above, the Revolving Credit Commitments and the Swingline Commitment
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding, and the Administrative Agent and the Collateral Agent
shall have the right to take all or any actions and exercise any remedies
available to a secured party under the Security Documents or applicable law or
in equity.
ARTICLE VIII.
The Agents and the Arranger
Each of the Lenders and the Issuing Bank hereby irrevocably appoints each
of the Administrative Agent and the Collateral Agent (for purposes of this
Article VIII, the Administrative Agent and the Collateral Agent are referred to
collectively as the "Agents") its agent and authorizes the Agents to take such
actions on its behalf, including the execution of the other Loan Documents, and
to exercise such powers as are delegated to such Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized by the Lenders to execute any and all documents (including
releases and the Security Documents) with respect to the Collateral and the
rights of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the Security Documents.
Each bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or any of their respective Affiliates
as if it were not an Agent hereunder.
No Agent shall have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing,
(a) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) no Agent
shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent or the
Collateral Agent is required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.08), and (c) except as
87
expressly set forth in the Loan Documents, no Agent shall have any duty to
disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of the Subsidiaries or any of their
respective Affiliates that is communicated to or obtained by the bank serving as
any Agent or any of its Affiliates in any capacity. The Administrative Agent and
the Collateral Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08) or in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to such Agent by Holdings, the
Borrower or a Lender, and no Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the creation, perfection, or priority of Liens on
the Collateral or the existence of the Collateral or (vi) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
Without prejudice to the foregoing, each Agent, the Lenders and the Issuing
Bank hereby acknowledges, agrees and accepts that the Collateral Agent holds
Collateral which is the subject of the UK Security Documents as trustee for and
on behalf of the Secured Parties in accordance with the terms of the declaration
of trust set out in the UK Security Documents and that the terms of its
appointment, and such trust, shall be as set out (or referred to) in the
relevant UK Security Documents and this Agreement.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have
been made by the proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for
Holdings or the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by it. Each Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers by or through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
below, each Agent may resign at any time by notifying the Lenders, the Issuing
Bank and the Borrower. Upon any such resignation of the Administrative Agent or
the Collateral Agent, the Required
88
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After an Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while acting as Agent. In addition, notwithstanding the
effectiveness of a resignation by the Administrative Agent hereunder, (i) the
retiring Administrative Agent may, in its sole discretion, continue to provide
the services of the Administrative Agent solely with respect to administering,
collecting and delivering any payments of principal, interest, fees, premium or
other amounts in respect of the Loans and maintaining the books and records
relating thereto (such Administrative Agent acting in such capacity, the "Paying
Agent"), (ii) the term "Administrative Agent" when used in connection with any
such functions shall be deemed to mean such retiring Administrative Agent in its
capacity as the Paying Agent and (iii) such retiring Administrative Agent shall,
in its capacity as the Paying Agent, continue to be vested with and enjoy all of
the rights and benefits of an Administrative Agent.
Each of the Arranger, the Syndication Agent and the Documentation Agent, in
their respective capacities as such, shall have no duties or responsibilities,
and shall incur no liability, under this Agreement or any other Loan Document.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents, the Arranger, the Syndication Agent, the Documentation Agent or
any Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agents, the Arranger, the Syndication Agent, the Documentation
Agents or any Lender and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or
thereunder.
To the extent required by any applicable law, the Administrative Agent may
withhold from any interest payment to any Lender an amount equivalent to any
applicable withholding tax. If the Internal Revenue Service or any other
Governmental Authority 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
circumstance 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 any penalties or interest
89
and together with all expenses (including legal expenses, allocated internal
costs and out-of-pocket expenses) incurred.
ARTICLE IX.
Miscellaneous
SECTION 9.01 Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) of this Section 9.01), notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by fax, as
follows:
(i) if to Holdings or the Borrower, to it at SkillSoft Corporation,
000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000, Attention: Xxx
XxXxxxxx, Chief Financial Officer (Fax No. (000) 000-0000), with a copy to
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxxx;
(ii) if to the Administrative Agent or the Collateral Agent, to Credit
Suisse, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Agency
Group (Fax No. (000) 000-0000); and
(iii) if to a Lender, to it at its address (or fax number) set forth
in the Lender Addendum or the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto or set forth in its
Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by fax
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications (including e-mail and
internet or intranet websites) pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices to
any Lender pursuant to Article II if such Lender has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower (on behalf of the Loan
Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications. All such notices and other
communications (i) sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, return e-mail or other written
acknowledgment); provided that if not given during the normal business hours of
the recipient, such notice or communication shall be deemed to have been given
at the opening of business on the next Business Day for the recipient, and (ii)
posted
90
to an internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the
foregoing clause (b)(i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Any party hereto may change its address or fax number for notices and
other communications hereunder by notice to the other parties hereto in
accordance with the provisions hereof.
SECTION 9.02 Survival of Agreement. All covenants, agreements,
representations and warranties made by Holdings or the Borrower herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Section 2.14, Section 2.16, Section
2.20 and Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, the Arranger, any Lender or the
Issuing Bank.
SECTION 9.03 Binding Effect. This Agreement shall become effective when it
shall have been executed by each of the parties hereto and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto.
SECTION 9.04 Successors and Assigns.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the permitted successors and assigns
of such party; and all covenants, promises and agreements by or on behalf of
Holdings, the Borrower, the Administrative Agent, the Collateral Agent, the
Issuing Bank or the Lenders that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) the Administrative Agent must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) in the case of any assignment of a Term Loan Commitment or Term
Loan, such Lender shall provide notice to the Borrower of such assignment, (iii)
in the case of any assignment of a Revolving Credit Commitment or Revolving
Loan, each of the Issuing Bank, the Swingline Lender and the Borrower must give
its prior written consent to such
91
assignment (which consent shall not be unreasonably withheld or delayed);
provided that the consent of the Borrower shall not be required to any such
assignment (A) during the continuance of any Default or Event of Default, (B) in
connection with the initial syndication of the Facility to persons identified by
the Administrative Agent to the Borrower on or prior to the Closing Date or (C)
if such assignment is made to another Lender, or an Affiliate of a Lender or an
Approved Fund of a Lender, (iv) Except in the case of an assignment to a Lender,
an affiliated Lender or an Approved Fund of a Lender, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 (or, if
less, the entire remaining amount of such Lender's Commitment) and shall be in
an amount that is an integral multiple of $1,000,000 (or the entire remaining
amount of such Lender's Commitment), (v) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance via
an electronic settlement system acceptable to the Administrative Agent (or, if
previously agreed with the Administrative Agent, manually), and shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee may
be waived or reduced in the sole discretion of the Administrative Agent), and
(vi) the assignee, if it shall not be a Lender immediately prior to the
assignment, shall deliver to the Administrative Agent an Administrative
Questionnaire and any tax forms required by Section 2.20(e) or (f). Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, (A)
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Section 2.14, Section 2.16, Section 2.20 and Section 9.05, as well
as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of Holdings, the Borrower or any Subsidiary
or the performance or observance by Holdings, the Borrower or any Subsidiary of
any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.05(a) or delivered
92
pursuant to Section 5.04 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, the Arranger, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in the City of New York 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 Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire and any
tax forms required by Section 2.20(e) or (f), as applicable, completed in
respect of the assignee (unless the assignee shall already be a Lender
hereunder) and the written consent of the Swingline Lender, the Issuing Bank and
the Administrative Agent to such assignment, the Administrative Agent shall
promptly (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders, the Issuing Bank and the Swingline Lender. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline
Lender, the Issuing Bank or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Section 2.14, Section 2.16 and
Section 2.20 to the same extent as if they were Lenders (but, with respect to
any particular participant, to no greater extent than the Lender that sold the
participation to such participant) and (iv) the Borrower, the Administrative
Agent, the Issuing Bank and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
93
to enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans, increasing
or extending the Commitments or releasing all or substantially all of the value
of the Guarantees or all or substantially all of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or proposed participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender or in support
of obligations owed by such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information
94
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its
rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
SECTION 9.05 Expenses; Indemnity. (a) Holdings and the Borrower agree,
jointly and severally, to pay all reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent, the Collateral Agent, the Syndication
Agent, the Documentation Agent, the Arranger, the Issuing Bank and the Swingline
Lender in connection with the syndication of the credit facilities provided for
herein and the preparation and administration of this Agreement and the other
Loan Documents or in connection with any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions hereby or
thereby contemplated shall be consummated) or incurred by the Administrative
Agent, the Collateral Agent, the Syndication Agent, the Documentation Agent, the
Arranger, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit issued
hereunder, including in each case the fees, disbursements and other charges of
Xxxxxx & Xxxxxxx LLP, Xxxxxx Xxx, Walkers, and Stikeman Elliott LLP counsel for
the Administrative Agent and the Collateral Agent, and, in connection with any
such enforcement or protection, the reasonable fees, disbursements and other
charges of any counsel for the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Documentation Agent, the Arranger, the Issuing Bank or
any Lender (limited to not more than one counsel per jurisdiction as designated
by the Administrative Agent).
(b) Holdings and the Borrower agree, jointly and severally, to indemnify
the Administrative Agent, the Collateral Agent, the Syndication Agent, the
Documentation Agent, the Arranger, each Lender, the Issuing Bank and each
Related Party of any of the foregoing persons (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related reasonable costs and expenses,
including reasonable counsel fees, disbursements and other charges, incurred by
or asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto and
regardless of whether such matter is initiated by a third party or by Holdings,
the Borrower, the Target or any of their respective affiliates, or (iv) any
actual or alleged presence or Release of Hazardous Materials on any property
owned or operated by Holdings, the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to Holdings, the Borrower or any of
the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related costs and expenses are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from primarily the gross
negligence, willful misconduct or material breach of the Loan Documents by such
Indemnitee (and, upon any such
95
determination, any indemnification payments with respect to such losses, claims,
damages, liabilities or related costs and expenses previously received by such
Indemnitee shall be subject to reimbursement by such Indemnitee).
(c) To the extent that Holdings and the Borrower fail to pay any amount
required to be paid by them to the Administrative Agent, the Collateral Agent,
the Syndication Agent, the Documentation Agent, the Arranger, the Issuing Bank
or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Collateral Agent, the
Syndication Agent, the Documentation Agent, the Arranger, the Issuing Bank or
the Swingline Lender, as the case may be, such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
Collateral Agent, the Syndication Agent, the Documentation Agent, the Arranger,
the Issuing Bank or the Swingline Lender in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the Aggregate Revolving Credit Exposure, outstanding Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor the
Borrower shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the Transactions or the other transactions contemplated hereby,
the repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, the Syndication Agent, the Documentation Agent, the Arranger, any Lender
or the Issuing Bank. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
SECTION 9.06 Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of Holdings or the Borrower against any of and all the
obligations of Holdings or the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
96
SECTION 9.07 Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08 Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on Holdings or the Borrower in
any case shall entitle Holdings or the Borrower to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by Holdings, the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) increase or extend the Commitment or decrease
or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j), the provisions of this
Section or the definition of the term "Required Lenders," or release all or
substantially all of the value of the Guarantees, without the prior written
consent of each Lender, (iv) amend or modify the definition of the term
"Majority Facility Lenders" without the prior written consent of each Lender
affected thereby, (v) release all or substantially all of the Collateral without
the prior written consent of each Lender, (vi) change the provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of one Class differently from the
rights of Lenders holding Loans of any other Class without the prior written
consent of Lenders holding a
97
majority in interest of the outstanding Loans and unused Commitments of each
adversely affected Class or (vii) modify the protections afforded to an SPC
pursuant to the provisions of Section 9.04(i) without the written consent of
such SPC; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under
any other Loan Document without the prior written consent of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as
applicable.
SECTION 9.09 Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10 Entire Agreement. This Agreement, the Fee Letter and the other
Loan Documents constitute the entire contract between the parties relative to
the subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any person (other than the
parties hereto and thereto, their respective successors and assigns permitted
hereunder (including any Affiliate of the Issuing Bank that issues any Letter of
Credit) and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent, the Collateral Agent, the Syndication Agent,
the Documentation Agent, the Arranger, the Issuing Bank and the Lenders) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.
SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
98
SECTION 9.12 Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13 Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement or of a Lender Addendum
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 9.14 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15 Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Syndication
Agent, the Documentation Agent, the Arranger, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against either Holdings or the Borrower or its
properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
99
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.16 Confidentiality. Each of the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information, except that Information may be disclosed (a)
to its and its Affiliates' officers, directors, employees and agents, including
accountants, legal counsel and other advisors who need to know such Information
(it being understood that the persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) in connection with
the exercise of any remedies hereunder or under the other Loan Documents or any
suit, action or proceeding relating to the enforcement of its rights hereunder
or thereunder, (e) subject to an agreement containing provisions substantially
the same as those of this Section 9.16, to (i) any actual or prospective
assignee of or participant in any of its rights or obligations under this
Agreement and the other Loan Documents or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
Holdings, the Borrower or any Subsidiary or any of their respective obligations,
(f) with the prior written consent of Holdings or the Borrower or (g) to the
extent such Information becomes publicly available other than as a result of a
breach of this Section 9.16. For the purposes of this Section, "Information"
shall mean all information received from Holdings or the Borrower and related to
the Borrower or its business, other than any such information that was available
to the Administrative Agent, the Collateral Agent, the Issuing Bank or any
Lender on a nonconfidential basis prior to its disclosure by Holdings or the
Borrower; provided that, the source of such information was not actually known
by the Administrative Agent, the Collateral Agent, the Issuing Bank or such
Lender, as the case may be, to be bound by a confidentiality agreement or other
legal or contractual obligation of confidentiality with respect to such
information. Any person required to maintain the confidentiality of Information
as provided in this Section 9.16 shall be considered to have complied with its
obligation to do so if such person has exercised the same degree of care to
maintain the confidentiality of such Information as such person would accord its
own confidential information. Notwithstanding any other express or implied
agreement, arrangement or understanding to the contrary, each of the parties
hereto agrees that each other party hereto (and each of its employees,
representatives or agents) are permitted to disclose to any persons, without
limitation, the tax treatment and tax structure of the Loans and the other
transactions contemplated by the Loan Documents and all materials of any kind
(including opinions and tax analyses) that are provided to the Loan Parties, the
Lenders, the Arranger or any Agent related to such tax treatment and tax
aspects. To the extent not inconsistent with the immediately preceding sentence,
this authorization does not extend to disclosure of any other information or any
other term or detail not related to the tax treatment or tax aspects of the
Loans or the transactions contemplated by the Loan Documents.
SECTION 9.17 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent.
100
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
101
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective authorized officers as of the
day and year first above written.
Signed, sealed and delivered by )
)
)
XXXXXXX X. XXXXX (name in block capitals) )
as attorney of )
SKILLSOFT PUBLIC LIMITED COMPANY )
and in exercise of a power of attorney )
under the hand and seal of )
SKILLSOFT PUBLIC LIMITED COMPANY )
in the presence of: )
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Signature of attorney
Signature of witness: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxxxxxxx Xxxx.,
Xxxxxx XX 00000
SKILLSOFT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CAO
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
Administrative Agent, Collateral Agent,
Issuing Bank and Swingline Lender
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
SILICON VALLEY BANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Relationship Manager
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
