EXHIBIT 10.21
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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of July 3, 2003
among
DIGITALNET, INC.,
as the Borrower,
DIGITALNET HOLDINGS, INC.,
as a Guarantor,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and L/C Issuer,
MADISON CAPITAL FUNDING LLC,
as Syndication Agent,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Section Page
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CREDIT AGREEMENT............................................................................................I
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS............................................................1
1.01 Defined Terms...............................................................................1
1.02 Other Interpretive Provisions..............................................................29
1.03 Accounting Terms...........................................................................29
1.04 Rounding...................................................................................30
1.05 References to Agreements and Laws..........................................................30
1.06 Times of Day...............................................................................30
1.07 Letter of Credit Amounts...................................................................30
1.08 Borrowing Base.............................................................................30
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS......................................................31
2.01 Revolving Credit Loans.....................................................................31
2.02 Conversions and Continuations of Revolving Credit Loans....................................32
2.03 Letters of Credit..........................................................................33
2.04 Swing Line Loans...........................................................................40
2.05 Prepayments................................................................................43
2.06 Termination or Reduction of Revolving Credit Commitments...................................45
2.07 Repayment of Loans.........................................................................45
ARTICLE III. GENERAL LOAN PROVISIONS....................................................................46
3.01 Interest...................................................................................46
3.02 Fees.......................................................................................46
3.03 Computation of Interest and Fees...........................................................47
3.04 Evidence of Debt...........................................................................47
3.05 Payments Generally.........................................................................48
3.06 Sharing of Payments........................................................................49
3.07 Security...................................................................................50
ARTICLE IV. TAXES, YIELD PROTECTION AND ILLEGALITY.....................................................50
4.01 Taxes......................................................................................50
4.02 Illegality.................................................................................51
4.03 Inability to Determine Rates...............................................................52
4.04 Increased Cost and Reduced Return; Capital Adequacy........................................52
4.05 Funding Losses.............................................................................53
4.06 Matters Applicable to all Requests for Compensation........................................53
4.07 Survival...................................................................................54
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..................................................54
5.01 Conditions of Initial Credit Extension.....................................................54
5.02 Conditions to all Credit Extensions........................................................59
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.............................................................60
6.01 Existence, Qualification and Power; Compliance with Laws...................................60
6.02 Authorization; No Contravention............................................................60
6.03 Governmental Authorization; Other Consents.................................................61
6.04 Binding Effect.............................................................................61
6.05 Financial Statements; No Material Adverse Effect...........................................61
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6.06 Litigation.................................................................................62
6.07 No Default.................................................................................62
6.08 Ownership of Property; Liens...............................................................63
6.09 Environmental Compliance...................................................................63
6.10 Insurance..................................................................................64
6.11 Taxes......................................................................................64
6.12 ERISA Compliance...........................................................................65
6.13 Subsidiaries...............................................................................65
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............66
6.15 Disclosure.................................................................................66
6.16 Compliance with Laws.......................................................................66
6.17 Intellectual Property; Licenses, Etc.......................................................67
6.18 Employee Relations.........................................................................67
6.19 Material Government Contracts..............................................................67
6.20 Burdensome Provisions......................................................................68
6.21 Tax Shelter Regulations....................................................................68
6.22 Survival of Representations and Warranties, Etc............................................68
ARTICLE VII. AFFIRMATIVE COVENANTS......................................................................68
7.01 Financial Statements.......................................................................69
7.02 Certificates; Other Information............................................................70
7.03 Notices....................................................................................72
7.04 Payment of Obligations.....................................................................72
7.05 Preservation of Existence, Etc.............................................................72
7.06 Maintenance of Properties..................................................................73
7.07 Maintenance of Insurance...................................................................73
7.08 Compliance with Laws.......................................................................73
7.09 Environmental Laws.........................................................................73
7.10 Compliance with ERISA......................................................................74
7.11 Compliance With Agreements.................................................................74
7.12 Books and Records..........................................................................74
7.13 Inspection Rights..........................................................................74
7.14 Use of Proceeds............................................................................75
7.15 Additional Subsidiaries....................................................................75
7.16 Proceeds of Equity or Indebtedness; Escrow and Indemnification Payments....................76
7.17 Further Assurances.........................................................................76
ARTICLE VIII. NEGATIVE COVENANTS.........................................................................77
8.01 Liens......................................................................................77
8.02 Investments................................................................................79
8.03 Indebtedness...............................................................................82
8.04 Fundamental Changes........................................................................84
8.05 Dispositions...............................................................................85
8.06 Restricted Payments........................................................................86
8.07 Limitations on Exchange and Issuance of Capital Stock......................................88
8.08 Change in Nature of Business...............................................................89
8.09 Accounting Changes; Organizational Documents...............................................89
8.10 Transactions with Affiliates...............................................................89
8.11 Burdensome Agreements......................................................................90
8.12 Use of Proceeds............................................................................90
8.13 Impairment of Security Interests...........................................................90
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8.14 Amendments, Payments and Prepayments of Subordinated Indebtedness..........................91
8.15 Amendments, Payments and Prepayments of Senior Unsecured Notes.............................91
8.16 Acquisition Documents......................................................................91
8.17 Equity Purchase Agreement..................................................................92
8.18 Financial Covenants........................................................................92
8.19 Capital Expenditures.......................................................................92
ARTICLE IX. GUARANTY OF HOLDINGS.......................................................................93
9.01 Guaranty of Obligations....................................................................93
9.02 Nature of Guaranty.........................................................................93
9.03 Waivers....................................................................................94
9.04 Modification of Loan Documents, Etc........................................................95
9.05 Demand by Administrative Agent.............................................................96
9.06 Remedies...................................................................................96
9.07 Reinstatement..............................................................................97
9.08 Payments...................................................................................97
9.09 No Subrogation.............................................................................97
ARTICLE X. EVENTS OF DEFAULT AND REMEDIES.............................................................98
10.01 Events of Default..........................................................................98
10.02 Remedies Upon Event of Default............................................................100
10.03 Application of Funds......................................................................101
ARTICLE XI. ADMINISTRATIVE AGENT......................................................................102
11.01 Appointment and Authorization of Administrative Agent.....................................102
11.02 Delegation of Duties......................................................................102
11.03 Liability of Administrative Agent.........................................................103
11.04 Reliance by Administrative Agent..........................................................103
11.05 Notice of Default.........................................................................104
11.06 Credit Decision; Disclosure of Information by Administrative Agent........................104
11.07 Indemnification of Administrative Agent...................................................104
11.08 Administrative Agent in its Individual Capacity...........................................105
11.09 Successor Administrative Agent............................................................105
11.10 Administrative Agent May File Proofs of Claim.............................................106
11.11 Collateral and Guaranty Matters...........................................................107
11.12 Other Agents; Arrangers and Managers......................................................107
ARTICLE XII. MISCELLANEOUS.............................................................................108
12.01 Amendments, Etc...........................................................................108
12.02 Notices and Other Communications; Facsimile Copies........................................109
12.03 No Waiver; Cumulative Remedies............................................................110
12.04 Attorney Costs, Expenses and Taxes........................................................110
12.05 Indemnification...........................................................................111
12.06 Payments Set Aside........................................................................112
12.07 Successors and Assigns....................................................................112
12.08 Confidentiality...........................................................................115
12.09 Set-off...................................................................................117
12.10 Interest Rate Limitation..................................................................117
12.11 Counterparts..............................................................................117
12.12 Integration...............................................................................117
12.13 Survival of Representations and Warranties................................................118
12.14 Severability..............................................................................118
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12.15 Tax Forms.................................................................................118
12.16 Replacement of Lenders....................................................................120
12.17 Governing Law.............................................................................120
12.18 Waiver of Right to Trial by Jury..........................................................121
12.19 Entire Agreement..........................................................................121
SIGNATURES...........................................................................................S-1
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EXHIBITS AND SCHEDULES
SCHEDULES
1.01 Designated Account Debtors
2.01 Revolving Credit Commitments and Revolving Credit Commitment
Percentages
6.01 Jurisdictions of Organization and Qualification
6.05 Material Indebtedness
6.12(a) ERISA Matters
6.12(d) Transactions Subject to ERISA Sections 4069 and 4212(c)
6.13 Subsidiaries and Other Equity Investments
6.17 Intellectual Property Matters
6.18 Employee Relations
6.19 Material Government Contracts
8.01 Existing Liens
8.03 Existing Indebtedness
12.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF:
A Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Borrowing Base Certificate
F Assignment and Assumption
G Subsidiary Guaranty Agreement
H Collateral Agreement
I Reaffirmation Agreement
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AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED
CREDIT AGREEMENT ("AGREEMENT") is entered into as
of July 3, 2003, among DIGITALNET, INC., a Delaware corporation (the
"BORROWER"), DIGITALNET HOLDINGS, INC., a Delaware corporation ("HOLDINGS"),
each lender from time to time party hereto (collectively, the "LENDERS" and
individually, a "LENDER"), BANK OF AMERICA, N.A., as Administrative Agent, Swing
Line Lender and L/C Issuer, and MADISON CAPITAL FUNDING LLC, as Syndication
Agent.
STATEMENT OF PURPOSE
Pursuant to the
Credit Agreement dated as of November 26, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "EXISTING
CREDIT AGREEMENT"), by and among the Holdings, the Borrower, the lenders party
thereto (the "EXISTING LENDERS"), the Administrative Agent, and the other agents
party thereto, the Existing Lenders extended certain credit facilities to the
Borrower pursuant to the terms thereof.
Holdings and the Borrower have requested that the Lenders amend and restate
the Existing
Credit Agreement, and the Lenders are willing to do so on the terms
and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the Existing
Credit Agreement is hereby amended and restated as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"ACCOUNT DEBTOR" means any Person who is or who may become obligated to the
Borrower or any of its Subsidiaries under or on account of an Account.
"ACCOUNTS" means all "accounts" (as defined in the UCC) of the Borrower or
any of its Subsidiaries, including without limitation all present or future
accounts receivable, all rights to payment for goods sold or leased or to be
sold or leased or for services rendered or to be rendered, whether or not earned
by performance, all rights in any merchandise or goods which any of the same may
represent, all notes receivable, book debts, notes, bills, drafts, acceptances,
choses in action, contract rights, instruments and documents and all sums of
money due or to become due thereon and all proceeds thereof and all rights,
title, security interests and guarantees with respect to each of the foregoing.
"ACQUISITION" means the acquisition consummated on November 26, 2002 of one
hundred percent (100%) of the issued and outstanding membership interest of
Getronics Government Solutions, L.L.C. (now known as DigitalNet Government
Solutions, LLC), a Delaware limited liability company, by the Borrower and the
other transactions contemplated by the Acquisition Agreement and the other
Acquisition Documents.
"ACQUISITION AGREEMENT" means the Purchase Agreement dated as of September
27, 2002, by and among Holdings, the Borrower, GetronicsWang Co. L.L.C., and
Getronics Government Solutions, L.L.C. (now known as DigitalNet Government
Solutions, LLC), a Delaware limited liability company, as amended, restated,
supplemented or otherwise modified pursuant to the terms and conditions set
forth in this Agreement; PROVIDED that the Administrative Agent shall have
approved any material amendment, supplement or other modification thereto.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement and all exhibits
and schedules thereto and each other document, instrument, certificate and
agreement executed or delivered by Holdings, the Borrower or any Subsidiary
thereof in connection with the Acquisition Agreement or otherwise referred to
therein or contemplated thereby (other than the Loan Documents and the Senior
Subordinated Loan Documents), all as amended, restated, supplemented or
otherwise modified pursuant to the terms and conditions set forth in this
Agreement.
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent appointed in accordance with the provisions contained
herein.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address
and, as appropriate, account as set forth on SCHEDULE 12.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "CONTROL"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"AGENT-RELATED PERSONS" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"AGREEMENT" means this
Credit Agreement, as amended, restated, supplemented
or otherwise modified from time to time.
"APPLICABLE RATE" means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to SECTION 7.02(b):
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APPLICABLE RATE
PRICING CONSOLIDATED TOTAL COMMITMENT EURODOLLAR RATE LOANS AND
LEVEL LEVERAGE RATIO FEE LETTER OF CREDIT FEE BASE RATE LOANS
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4 Greater than or equal to 0.500% 3.50% 2.50%
3.5:1.0
3 Less than 3.5:1.0, but 0.500% 3.25% 2.25%
greater than or equal to
3.0:1.0
2 Less than 3.0:1.0, but 0.500% 3.00% 2.00%
greater than or equal to
2.5:1.0
1 Less than 2.5:1.0 0.375% 2.75% 1.75%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Total Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered pursuant to SECTION 7.02(b); PROVIDED, that if a Compliance
Certificate is not delivered when due in accordance with such SECTION 7.02(b),
then Pricing Level 4 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered until such
time as such Compliance Certificate is delivered. For the period from the
Closing Date to the first Business Day immediately following the date of
delivery of a Compliance Certificate for the Fiscal Quarter ended September 30,
2003, the Applicable Rate shall remain at Pricing Level 3.
"ARRANGER" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"ASSIGNMENT AGREEMENT" has the meaning set forth in the Collateral
Agreement.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of EXHIBIT F.
"ASSIGNMENT OF CLAIMS ACT" means Assignment of Claims Act of 1940 (41
U.S.C. Section 15, 31 U.S.C. Section 3737, and 31 U.S.C. Section 3727),
including all amendments thereto and regulations promulgated thereunder.
"ATTEMPTED SPRING 2003 IPO" means the attempted initial public offering of
common stock of Holdings pursuant to the registration statement on Form S-1
(Registration No. 333-102731) originally filed by Holdings with the SEC on
January 27, 2003.
"ATTORNEY COSTS" means and includes all reasonable fees, out of pocket
expenses and disbursements of any law firm or other external counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any capital
lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP.
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"AUDITED FINANCIAL STATEMENTS" has the meaning set forth in SECTION
5.01(c)(i).
"AVAILABILITY PERIOD" means the period from and including the Closing Date
to the earliest of (a) the Revolving Credit Maturity Date, (b) the date of
termination of all Revolving Credit Commitments pursuant to SECTION 2.06, and
(c) the date of termination of the commitment of each Lender to make Revolving
Credit Loans and of the obligation of the of the L/C Issuer to make L/C Credit
Extensions pursuant to SECTION 10.02.
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association, and its successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BORROWER" has the meaning set forth in the introductory paragraph hereto.
"BORROWING" means a Revolving Credit Borrowing or a Swing Line Borrowing,
as the context may require.
"BORROWING BASE" means, as of any date of determination and subject to
SECTION 1.08 and the following sentence, the sum of:
(a) 90% of Eligible Federal Government Prime Billed Accounts,
(b) 85% of Eligible Federal Government Subcontracted Billed Accounts,
(c) the lesser of:
(i) the sum of (A) 50% of Eligible Federal Government Prime
Unbilled Accounts and (B) 50% of Eligible Federal Government Subcontracted
Unbilled Accounts, and
(ii) $12,500,000, and
(d) 80% of Eligible Commercial Billed Accounts.
"BORROWING BASE CERTIFICATE" means a certificate in substantially the form
of EXHIBIT E, properly completed and signed by a Responsible Officer of the
Borrower, and accompanied by a reasonably detailed summary with listings and
agings of all Collateral, all in form and detail reasonably satisfactory to
Administrative Agent.
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"BORROWING LIMIT" means, as of any date of determination, the lesser of (a)
the Revolving Credit Commitments and (b) the Borrowing Base.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"CAPITAL ASSET" means, with respect to Holdings and its Subsidiaries, any
asset that should, in accordance with GAAP, be classified and accounted for as a
capital asset on a consolidated balance sheet of Holdings and its Subsidiaries.
"CAPITAL EXPENDITURES" means with respect to Holdings and its Subsidiaries
for any period, the aggregate cost of all Capital Assets acquired by Holdings
and its Subsidiaries during such period, as determined in accordance with GAAP
MINUS, to the extent included in the foregoing, expenditures made by Holdings
and its Subsidiaries during such period (i) with the proceeds of insurance or a
condemnation claim to restore or replace property or assets to the condition of
such property or assets immediately prior to any damage, loss, destruction or
condemnation of the same, (ii) pursuant to Section 8.02(f), (iii) with the
proceeds of indemnification with respect to a loss of Capital Assets, (iv) as a
tenant in the nature of leasehold improvements, to the extent reimbursed by the
landlord, (v) in connection with the trade-in of property or assets pursuant to
Section 8.05(c) or (vi) with respect to payments on capital leases.
"CASH COLLATERALIZE" has the meaning set forth in SECTION 2.03(g).
"CHANGE OF CONTROL" means, an event or series of events by which:
(a) at any time, Holdings shall fail to own one hundred percent (100%)
of the equity securities of the Borrower entitled to vote in the election of
members of the board of directors of the Borrower; or
(b) at any time, the Borrower or one or more of its Subsidiaries shall
fail to own one hundred percent (100%) of the capital stock or other ownership
interests of each of the Borrower's Subsidiaries, except to the extent expressly
otherwise permitted under this Agreement; or
(c) prior to the consummation of any IPO, (i) GTCR Entities shall fail
to collectively own forty percent (40%) or more of the capital stock of Holdings
or (ii) the Principals and their respective Related Persons shall fail to
collectively own fifty and one tenth percent (50.1%) or more of the capital
stock of Holdings; or
(d) following the consummation of any IPO, any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan), other than the Principals
and their respective Related Persons, becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that
a person or group
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shall be deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "OPTION RIGHT"),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 25% or more of the equity securities of such
Person entitled to vote for members of the board of directors or equivalent
governing body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right); or
(e) any "Change of Control" under the Senior Unsecured Notes or any
document executed in connection therewith (including, without limitation, the
Senior Unsecured Note Indenture and the other Senior Unsecured Note Documents).
"CLASS A PREFERRED STOCK" means the Class A Redeemable Convertible
Preferred Stock, $0.01 par value per share, of Holdings.
"CLASS B PREFERRED STOCK" means the Class B Redeemable Convertible
Preferred Stock, $0.01 par value per share, of Holdings.
"CLOSING DATE" means the first date all the conditions precedent in SECTION
5.01 are satisfied or waived in accordance with SECTION 5.01 (or, in the case of
SECTION 5.01(c)(iv), waived by the Person entitled to receive the applicable
payment).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means the collateral security for all or a portion of the
Obligations pledged or granted pursuant to the Security Documents.
"COLLATERAL AGREEMENT" means that certain Collateral Agreement dated as
November 26, 2002, executed by each of the Loan Parties in favor of the
Administrative Agent on behalf of the Lenders, attached hereto as EXHIBIT H, as
amended, restated, supplemented or otherwise modified from time to time.
"COMPENSATION PERIOD" has the meaning set forth in SECTION 3.05(c).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT D.
"CONSOLIDATED CASH INTEREST CHARGES" means, for any period, for Holdings
and its Subsidiaries on a consolidated basis without duplication, the sum of (a)
the cash interest paid during such period, as determined in accordance with GAAP
for purposes of the cash flow statement (excluding, to the extent included in
cash interest paid for such period, without duplication, (i) prepayment
penalties, (ii) fees paid in connection with this Agreement, the Senior
Subordinated Notes, the Senior Unsecured Notes and Other Permitted Indebtedness,
(iii) underwriting, commitment and arranging fees and (iv) legal fees and
expenses and other charges in connection with Indebtedness) and (b) the portion
of rent expense with respect to such period under capital leases that is treated
as interest in accordance with GAAP.
"CONSOLIDATED EBITDA" means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, without duplication, an amount equal to
Consolidated Net Income for such period PLUS (a) the following to the extent
deducted in calculating such Consolidated Net Income:
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(i) Consolidated Interest Charges for such period, (ii) the provision for
federal, state, local and foreign income taxes (and any franchise, single
business, unitary or withholding taxes imposed in lieu of income taxes) payable
by Holdings and its Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense for such period, (iv) placement fees
payable pursuant to Paragraph 4 of the Professional Services Agreement (but
excluding management fees payable pursuant to Paragraph 5 of the Professional
Services Agreement) to the extent permitted to be paid under SECTION 8.10, (v)
each of the items described in the following clauses (A), (B) and (C), to the
extent either (1) permitted under Regulation S-X to be included on a pro forma
basis or (2) approved by the Administrative Agent (and, with respect to clause
(B), the Required Lenders), such approval not to be unreasonably withheld: (A)
non-capitalized fees, expenses and payments made or incurred pursuant to the
Loan Documents, Other Permitted Indebtedness, the Senior Subordinated Note
Documents, the Senior Unsecured Note Documents, the Acquisition Documents, any
Permitted Acquisition (whether or not consummated), and any other financing
event or transaction permitted under the Loan Documents (whether or not
consummated) (including expenses relating to the Attempted Spring 2003 IPO in an
amount not to exceed $3,000,000), (B) purchase accounting adjustments, cost
savings incurred, and severance or relocation expenses, in each case, in
connection with the Acquisition or any Permitted Acquisition, and (C)
expenditures with respect to which an indemnification right exists, to the
extent such expenditures are reasonably likely to be reimbursed by third
parties, as reasonably determined by the Borrower and (vi) other expenses of
Holdings and its Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period and MINUS (b) all
non-cash items increasing Consolidated Net Income for such period; PROVIDED that
Holdings, the Borrower, the Lenders and the Administrative Agent hereby
acknowledge and agree that (A) with respect to the Fiscal Quarter ending
September 30, 2002, Consolidated EBITDA shall be deemed to equal $9,651,000 for
such Fiscal Quarter, (B) with respect to the Fiscal Quarter ending December 31,
2002, Consolidated EBITDA shall be deemed to be $10,260,000, and (C) with
respect to the Fiscal Quarter ending March 31, 2003, Consolidated EBITDA shall
be deemed to be $9,990,000; PROVIDED FURTHER that for the purposes of
determining Consolidated EBITDA for any period during which the Acquisition or
any Permitted Acquisition is consummated, Consolidated EBITDA shall be adjusted
to give effect to the consummation of the Acquisition or such Permitted
Acquisition, as applicable, on a PRO FORMA basis in accordance with GAAP, as if
the Acquisition or such Permitted Acquisition, as applicable, occurred on the
first day of such period, such adjustments to be calculated in accordance with
Regulation S-X.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of the
following determined on a consolidated basis, for Holdings and its Subsidiaries
in accordance with GAAP: (a) Consolidated Cash Interest Charges for such period,
(b) dividends paid in cash to the shareholders of Holdings for such period and
(c) the amount of scheduled principal payments (with respect to Indebtedness for
such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated EBITDA for the
period of the four Fiscal Quarters most recently ended LESS (ii) Capital
Expenditures made during such period LESS (iii) cash income taxes (and any
franchise, single business, unitary or withholding taxes imposed in lieu of
income taxes) paid during such period TO (b) Consolidated Fixed Charges for such
period.
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"CONSOLIDATED FUNDED INDEBTEDNESS" means, as of any date of determination,
for Holdings and its Subsidiaries on a consolidated basis without duplication,
the sum of (a) the accreted value of all obligations, whether current or
long-term, which are for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness (other than trade
accounts payable in the ordinary course of business), (c) all direct obligations
arising under letters of credit (including standby and commercial) in excess of
$2,000,000 in the aggregate, bankers' acceptances, bank guaranties, surety bonds
and similar instruments, (d) all obligations in respect of the deferred purchase
price of property or services (other than trade accounts payable in the ordinary
course of business), (e) Attributable Indebtedness in respect of capital leases,
(f) without duplication, all Guarantees with respect to outstanding Indebtedness
of the types specified in clauses (a) through (e) above of Persons other than
Holdings or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which Holdings or a Subsidiary is a general partner or joint venturer, unless
such Indebtedness is expressly made non-recourse to Holdings or such Subsidiary;
PROVIDED that the obligations of Holdings under the Class A Preferred Stock or
Class B Preferred Stock shall not constitute "Funded Indebtedness" unless such
obligations are Indebtedness in accordance with such definition.
"CONSOLIDATED INTEREST CHARGES" means, for any period, for Holdings and its
Subsidiaries on a consolidated basis without duplication, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of
Holdings and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense of Holdings and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, for Holdings and its
Subsidiaries on a consolidated basis, the net income of Holdings and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period; PROVIDED that there shall be excluded from Consolidated Net Income (a)
the net income (or loss) of any Person (other than a Subsidiary that is not a
Subsidiary Guarantor which shall be subject to clause (c) below), in which
Holdings or any of its Subsidiaries has a joint interest with a third party,
except to the extent such net income is actually paid to Holdings or any of its
Subsidiaries by dividend or other distribution during such period, (b) the net
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of such Person or is merged into or consolidated with such Person or any of its
Subsidiaries or that Person's assets are acquired by such Person or any of its
Subsidiaries except to the extent included pursuant to the foregoing clause (a),
and (c) the net income (if positive) of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
to Holdings or any of its Subsidiaries of such net income (i) is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute rule or governmental regulation applicable to
such Subsidiary or (ii) would be subject to any taxes payable on such dividends
or distributions.
"CONSOLIDATED NET WORTH" means, as of any date of determination, for
Holdings and its Subsidiaries on a consolidated basis without duplication, the
shareholders' equity of Holdings
8
and its Subsidiaries, PLUS the Class A Preferred Stock, PLUS the Class B
Preferred Stock, in each case as set forth on the balance sheet of Holdings and
its Subsidiaries as of such date and determined in accordance with GAAP.
"CONSOLIDATED TOTAL LEVERAGE RATIO" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date TO (b)
Consolidated EBITDA for the period of the four Fiscal Quarters most recently
ended.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" has the meaning set forth in the definition of "Affiliate."
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base Rate or
Eurodollar Rate, as applicable, PLUS (b) the Applicable Rate PLUS (c) 2% per
annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"DEFERRED PROCEEDS" has the meaning set forth in SECTION 2.05(d).
"DESIGNATED ACCOUNT DEBTOR" means any Account Debtor identified on Schedule
1.01 of this Agreement.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
(other than cash and cash equivalents) by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith.
9
"DISPOSITION PROCEEDS" has the meaning set forth in SECTION 2.05(d).
"DISQUALIFIED STOCK" means any capital stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is six months after
the Revolving Credit Maturity Date. Notwithstanding the preceding sentence, any
capital stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the issuer thereof to repurchase such
capital stock upon the occurrence of a change of control or an asset sale shall
not constitute Disqualified Stock if the terms of such capital stock provide
that the issuer may not repurchase or redeem any such capital stock pursuant to
such provisions unless such repurchase or redemption is permitted pursuant to
this Agreement.
"DOLLAR" and "$" mean lawful money of the United States.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the laws
of any political subdivision of the United States (other than Puerto Rico).
"ELIGIBLE ASSIGNEE" has the meaning set forth in SECTION 12.07(g).
"ELIGIBLE COMMERCIAL BILLED ACCOUNT" means, at any date of determination,
subject to modification by the Administrative Agent pursuant to SECTION 1.08,
the face value of each Account (other than any Account that arises out of a
Federal Governmental Contract) which is bona fide, non-contingent, existing
obligation of the named Account Debtor actually and absolutely owing to the
Borrower or any Subsidiary thereof and arising from the sale and delivery of
merchandise or the rendering of services to such Account Debtor in the ordinary
course of the Borrower's or any of its Subsidiaries' business, as presently
conducted for which the Account Debtor has been billed and which Account
satisfies and continues to satisfy the following requirements:
(a) The Account does not arise out of transactions with an
employee, officer, agent, director, stockholder or other Affiliate of the
Borrower or any Subsidiary thereof except, with respect to Affiliates, to
the extent such transaction is permitted pursuant to Section 8.10;
(b) The Account is evidenced by an invoice and has not remained
unpaid for a period exceeding ninety (90) days or more beyond the invoice
date of the invoice;
(c) The Account is not due from an Account Debtor whose debt on
Accounts that are unpaid ninety (90) days or more after the invoice date of
the respective invoices exceeds fifty percent (50%) of such Account
Debtor's total debt to the Borrower and its Subsidiaries;
(d) The Account is a valid, legally enforceable obligation of
the Account Debtor and no offset (including, without limitation, discounts,
advertising allowances, counterclaims or contra accounts) or other defense
on the part of such Account Debtor or any claim on the part of such Account
Debtor denying liability thereunder has been asserted; PROVIDED, HOWEVER,
that if the Account is subject to any such offset, defense or
10
claim, or any inventory related thereto has been returned, such account
shall not be an Eligible Commercial Billed Account only to the extent of
the maximum amount of such offset, defense, claim or return and the balance
of such Account, if it otherwise represents a valid, uncontested and
legally enforceable obligation of the Account Debtor and meets all of the
other criteria for eligibility set forth herein, shall be considered an
Eligible Commercial Billed Account;
(e) The Account Debtor is not the subject of any bankruptcy or
insolvency proceeding of any kind;
(f) If the Account Debtor is located outside of the United
States, the Account (x) is payable in the full amount of the face value of
the Account in United States Dollars and is supported by an irrevocable
letter of credit issued by a United States financial institution,
satisfactory to the Administrative Agent in its reasonable discretion, or
(y) is credit guaranteed in full by a Foreign Credit Insurance Association
("FCIA") insurance policy or such similar policy reasonably acceptable to
the Administrative Agent;
(g) The services have been performed or the subject merchandise
has been shipped or delivered on open Account to the named Account Debtor
on an absolute sale basis and not on a xxxx-and-hold, consignment, on
approval or subject to any other repurchase or return agreement and no
material part of the subject goods has been returned;
(h) Other than pursuant to the Security Documents, the Account
is not subject to any Lien or security interest whatsoever;
(i) The Account is not evidenced by chattel paper or an
instrument of any kind;
(j) The Account is not due from an Account Debtor whose total
obligation to the Borrower and its Subsidiaries, on a consolidated basis,
on Accounts exceeds fifteen percent (15%) of the aggregate amount of the
Borrowing Base; PROVIDED, HOWEVER, that the Account shall not be an
Eligible Commercial Billed Account only to the extent of such excess, if it
otherwise represents a valid, uncontested and legally enforceable
obligation of the Account Debtor and meets all of the other criteria for
eligibility set forth herein; and
(k) The Account has not been turned over to any Person that is
not a Subsidiary or Affiliate of the Borrower for collection.
"ELIGIBLE FEDERAL GOVERNMENT PRIME BILLED ACCOUNT" means, at any date of
determination, subject to modification by the Administrative Agent pursuant to
SECTION 1.08, the face value of each Account arising out of a Federal
Governmental Prime Contract which is bona fide, non-contingent, existing
obligation of the named Account Debtor actually and absolutely owing to the
Borrower or any Subsidiary thereof and arising from the sale and delivery of
merchandise or the rendering of services to such Account Debtor in the ordinary
course of the Borrower's or any of its Subsidiaries' business as presently
conducted for which the Account Debtor has been billed and that (a) the Borrower
or such Subsidiary shall have satisfied the requirements of the Security
11
Documents with respect to the Assignment of Claims Act, as amended and (b) the
Account satisfies and continues to satisfy requirements contained in clauses
(b), (c), (d), (g), (h), (i) and (k) of the definition of Eligible Commercial
Billed Account; PROVIDED, that with regard to clauses (b) and (c) of such
definition, the ninety (90) day period shall be deemed to be one-hundred twenty
(120) days for determining Eligible Federal Government Prime Billed Accounts.
"ELIGIBLE FEDERAL GOVERNMENT PRIME UNBILLED ACCOUNT" means, at any date of
determination thereof, subject to modification by the Administrative Agent
pursuant to SECTION 1.08, the face value of each Account which would be an
Eligible Federal Government Prime Billed Account, but for the fact such Account
has not been invoiced as a result of normal frequency of billing under the
particular contract, or as a result of government delays in the preparation of
contract documents and which will be invoiced within thirty (30) days of the "as
of" date of the particular Borrowing Base Certificate.
"ELIGIBLE FEDERAL GOVERNMENT SUBCONTRACTED BILLED ACCOUNT" means, at any
date of determination, subject to modification by the Administrative Agent
pursuant to SECTION 1.08, the face value of each Account arising out of a
Federal Governmental Subcontract which is bona fide, non-contingent, existing
obligation of the named Account Debtor actually and absolutely owing to the
Borrower or any Subsidiary thereof and arising from the sale and delivery of
merchandise or the rendering of services to such Account Debtor in the ordinary
course of the Borrower's or any of its Subsidiaries' business as presently
conducted for which the Account Debtor has been billed and that the Account
satisfies and continues to satisfy requirements contained in clauses (a) through
(k) (other than clause (j)) of the definition of Eligible Commercial Billed
Account; PROVIDED, that with regard to clauses (b) and (c) of such definition,
the ninety (90) day period shall be deemed to be one-hundred twenty (120) days
for determining Eligible Federal Government Subcontracted Billed Accounts;
PROVIDED FURTHER that, to the extent that the Eligible Federal Government
Subcontracted Billed Accounts with respect to (1) any single Designated Account
Debtor exceed thirty percent (30%) of the Borrowing Base and (2) any other
single Account Debtor exceed twenty percent (20%) of the Borrowing Base, in each
such case the amount of such excess shall be excluded from the calculation of
Eligible Federal Government Subcontracted Billed Accounts.
"ELIGIBLE FEDERAL GOVERNMENT SUBCONTRACTED UNBILLED ACCOUNT" means, at any
date of determination thereof, subject to modification by the Administrative
Agent pursuant to SECTION 1.08, the face value of each Account which would be an
Eligible Federal Government Subcontracted Billed Account, but for the fact such
Account has not been invoiced as a result of normal frequency of billing under
the particular contract, or as a result of government delays in the preparation
of contract documents and which will be invoiced within thirty (30) days of the
"as of" date of the particular Borrowing Base Certificate.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, licenses or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.
12
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
September 7, 2001, by and among Holdings, GTCR Fund VII, GTCR Co-Invest, the J.
Sunny Bajaj Trust, the Xxxxxx Xxxxx Trust and the Bajaj Family Limited
Partnership and the Xxxxxxxxxx Family, LLC, as amended, restated, supplemented
or otherwise modified pursuant to the terms and conditions set forth in this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with any Loan Party within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party
or any ERISA Affiliate.
"EURODOLLAR RATE" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
13
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any change
in the Eurodollar Reserve Percentage.
"EURODOLLAR RATE LOAN" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 10.01.
"EXISTING
CREDIT AGREEMENT" has the meaning set forth in the Statement of
Purpose.
14
"EXISTING LENDERS" has the meaning set forth in the Statement of Purpose.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; PROVIDED that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"FEDERAL GOVERNMENTAL CONTRACT" means a Federal Governmental Prime Contract
or a Federal Governmental Subcontract.
"FEDERAL GOVERNMENTAL PRIME CONTRACT" means any written agreement,
commitment, contract, instrument or other binding arrangement between the
Borrower or any Subsidiary thereof and an agency, department or instrumentality
of the United States where the Borrower or such Subsidiary is the prime
contractor.
"FEDERAL GOVERNMENTAL SUBCONTRACT" means any written agreement, commitment,
contract, instrument or other binding arrangement between the Borrower or any
Subsidiary thereof and any Person that is the prime contractor under a related
contract with an agency, department or instrumentality of the United States
where the Borrower or such Subsidiary is a subcontractor of such prime
contractor.
"FEE LETTER" means the letter agreement, dated June 13, 2003, as amended,
restated, supplemented or otherwise modified on or prior to the date hereof,
among the Borrower, the Administrative Agent, the Arranger and the other parties
thereto.
"FISCAL YEAR" means Holdings' Fiscal Year, which is the period of twelve
consecutive calendar months ending on December 31.
"FISCAL QUARTER" means each of the four periods of three consecutive
calendar months which make up each Fiscal Year.
"FOREIGN LENDER" has the meaning set forth in SECTION 12.15(a)(i).
"FOREIGN SUBSIDIARY" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the
15
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GTCR ENTITY" means GTCR Xxxxxx Xxxxxx, L.L.C. and its affiliated
investment funds.
"GTCR FUND VII" means GTCR Fund VII, L.P., a Delaware limited partnership.
"GTCR CO-INVEST" means GTCR Co-Invest, L.P., a Delaware limited
partnership.
"GUARANTEE" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, or (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (b) any Lien on any assets of
such Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person.
The amount of any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"GUARANTEED OBLIGATIONS" has the meaning set forth in SECTION 9.01.
"GUARANTORS" means the collective reference to Holdings and the Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other hazardous substances or solid wastes regulated pursuant to any
Environmental Law.
"HOLDINGS" means DigitalNet Holdings, Inc., a Delaware corporation, the
parent of the Borrower.
16
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) all net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of
property or services (other than accrued expenses and trade accounts payable in
the ordinary course of business);
(e) all indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse (in each case, other than trade accounts payable in the ordinary course
of business);
(f) all Attributable Indebtedness with respect to capital leases;
(g) all obligations of any such Person to redeem, repurchase, exchange,
defease or otherwise make payments in respect of capital stock or other
securities or partnership interests of such Person (unless such redemption,
repurchase, exchange, defeasance or other payment is contingent (unless such
contingency has been satisfied) or is not required prior to the date that is six
(6) months after the later of the Revolving Credit Maturity Date); and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. Notwithstanding the application of FASB 150, the
obligations of Holdings under the Class A Preferred Stock or Class B Preferred
Stock shall not constitute Indebtedness unless such obligations would otherwise
constitute Indebtedness under clause (g) of this definition.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 12.05.
"INDEMNITEES" has the meaning set forth in SECTION 12.05.
"INS CONTRACT" means the Department of Justice INS FOS H/M Contract
(Contract OW-7-C-0013).
17
"INSURANCE AND CONDEMNATION PROCEEDS" has the meaning set forth in SECTION
2.06(d).
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Credit Maturity Date; PROVIDED, HOWEVER, that if any Interest Period
for a Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line
Loan), the last Business Day of each calendar quarter and the Revolving Credit
Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one (1), two (2),
three (3) or six (6) months thereafter and, if available to all of the Lenders,
one (1) week (which shall be requested no more than one (1) time during any
Fiscal Quarter), nine (9) months or twelve (12) months thereafter, as selected
by the Borrower in its Loan Notice; PROVIDED that:
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(c) no Interest Period shall extend beyond the Revolving Credit Maturity
Date; and
(d) after giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than eight Interest Periods in effect with respect to
Eurodollar Rate Loans.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IPO" means an initial public offering of common stock of Holdings.
"IP RIGHTS" has the meaning set forth in SECTION 6.17.
"IRS" means the United States Internal Revenue Service or any successor
agency.
18
"JOINDER AGREEMENT" means each joinder agreement executed in favor of the
Administrative Agent, for the ratable benefit of itself and the Lenders,
pursuant to requirements of SECTION 7.15, in form and substance reasonably
acceptable to the Administrative Agent.
"LAWS" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case having the force of law.
"L/C ADVANCE" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Revolving Credit
Commitment Percentage.
"L/C BORROWING" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Revolving Credit Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit PLUS, without duplication,
the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
"LENDER" has the meaning set forth in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven days prior
to the Revolving Credit Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
19
"LETTER OF CREDIT SUBLIMIT" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Revolving Credit Commitments. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Credit Commitments.
"LIEN" means any deed of trust, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
"LOANS" means the collective reference to the Revolving Credit Loans and
the Swing Line Loans and "Loan" means any of such Loans.
"LOAN DOCUMENTS" means this Agreement, each Note, each Security Document,
the Fee Letter, the Subsidiary Guaranty Agreement and each Joinder Agreement.
"LOAN NOTICE" means a notice of (a) a Revolving Credit Borrowing, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, pursuant to SECTION 2.02(a), which, if in writing, shall
be substantially in the form of EXHIBIT A.
"LOAN PARTIES" means, collectively, the Borrower and each Guarantor.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations or financial condition of Holdings and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"MATERIAL GOVERNMENT CONTRACT" has the meaning set forth in the Collateral
Agreement.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to the sale of any asset by any Loan Party, the excess,
if any, of (i) the sum of cash and cash equivalents received in connection with
such sale (including any cash received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so
received) over (ii) the sum of (A) the principal amount of any Indebtedness that
is secured by such asset and that is required to be repaid in connection with
the sale thereof (other than Indebtedness under the Loan Documents), (B) the
out-of-pocket fees and expenses incurred by such Loan Party in connection with
such sale, (C) income or other taxes reasonably estimated to be actually payable
within two years of the date of the relevant asset sale as a result of any gain
recognized in connection therewith and (D) reasonable reserves for purchase
price adjustments, escrows, earn-outs and indemnification established in
connection
20
with such sale in accordance with GAAP and subject to the consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed);
(b) with respect to any payment under an insurance policy or in
connection with a condemnation proceeding, the amount of cash proceeds received
by any Loan Party from an insurance company or Governmental Authority, as
applicable, net of all fees and expenses of collection.
"NET EQUITY PROCEEDS" means, with respect to the sale of any capital stock
or other equity interest by Holdings, the excess of (i) the sum of the cash and
cash equivalents received in connection with such sale over (ii) the
underwriting discounts and commissions, fees and other out-of-pocket expenses,
incurred by Holdings in connection with such sale.
"NOTE" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of EXHIBIT C.
"NOTICE OF ASSIGNMENT" has the meaning set forth in the Collateral
Agreement.
"OBLIGATIONS" means (a) all advances to, and debts, liabilities, fees,
commissions, obligations, covenants and duties of, any Loan Party arising under
any Loan Document or otherwise with respect to any Loan or Letter of Credit,
whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding and (b) all
existing or future payment and other obligations owing by any Loan Party under
any Swap Contract (which such Swap Contract is permitted hereunder) entered into
with any Person which was a Lender or its Affiliate at the time such Swap
Contract was entered into.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER PERMITTED INDEBTEDNESS" means Indebtedness permitted to be incurred
pursuant to Section 8.03(b)(ii), Section 8.03(b)(iii) or Section 8.03(c).
"OUTSTANDING AMOUNT" means (i) with respect to Revolving Credit Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Revolving
Credit Loans and Swing Line Loans, as the case may be, occurring on such date;
and (ii) with respect to any L/C Obligations on any
21
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"PARENT GUARANTY" means the unconditional guaranty of the Obligations by
Holdings under Article IX.
"PARTICIPANT" has the meaning set forth in SECTION 12.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or
any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
"PERMITTED ACQUISITION" has the meaning set forth in SECTION 8.02(f).
"PERMITTED ACQUISITION DILIGENCE INFORMATION" means with respect to any
acquisition proposed by the Borrower or any Subsidiary thereof, to the extent
applicable, all financial information, all environmental reports (including,
without limitation, any phase I and, to the extent applicable, phase II
reports), all material contracts, all customer lists, all supply agreements, and
all other material information, in each case, reasonably requested to be
delivered to the Administrative Agent in connection with such proposed
acquisition (except to the extent that any such information is (a) subject to
any confidentiality agreement, unless mutually agreeable arrangements can be
made to preserve such information as confidential, (b) classified or (c) subject
to any attorney-client privilege).
"PERMITTED ACQUISITION DOCUMENTS" means with respect to any acquisition
proposed by the Borrower or any Subsidiary thereof, the purchase agreement, sale
agreement, merger agreement or other agreement evidencing such acquisition,
including, without limitation, all legal opinions and each other document
executed, delivered, contemplated by or prepared in connection therewith and any
amendment, modification or supplement to any of the foregoing.
"PERMITTED LIENS" means the Liens permitted pursuant to SECTION 8.01.
"PERMITTED NOTE REPURCHASES" means:
(1) the repurchase by Holdings of the Senior Unsecured Notes on the open
market in an aggregate amount not to exceed $5,000,000 (the "ANNUAL LIMIT")
during any Fiscal Year; PROVIDED that (a) immediately prior to and after giving
effect to any such repurchase, (i) no Default or Event of Default has occurred
and is continuing, (ii) Holdings and its Subsidiaries are in pro forma
compliance with each of the covenants set forth in SECTIONS 8.18, and (iii) the
total amount of cash and cash equivalents set forth on the balance sheet of
Holdings as of the date of
22
such repurchase (as determined in accordance with GAAP) exceeds the total amount
of Loans outstanding on the date of such repurchase (which, in the case of
clauses (ii) and (iii) above, shall be evidenced by an officer's compliance
certificate, in form and substance reasonably satisfactory to the Administrative
Agent, delivered to the Administrative Agent prior to such repurchase by
Holdings) and (b) any portion of the Annual Limit for any Fiscal Year which is
not used to fund Permitted Note Repurchases pursuant to this clause (1) in such
Fiscal Year may be carried forward to successive Fiscal Years;
(2) the redemption, repurchase or other acquisition by Holdings of up to
thirty-five percent (35%) of the Senior Unsecured Notes during the term of this
Agreement solely to the extent that such repurchase is made with the Net Equity
Proceeds of an offering of equity securities by Holdings; PROVIDED that
immediately prior to and after giving effect to any such repurchase, (a) no
Default or Event of Default has occurred and is continuing and (b) Holdings and
its Subsidiaries are in pro forma compliance with each of the covenants set
forth in SECTIONS 8.18 (which, in the case of clause (b) above, shall be
evidenced by an officer's compliance certificate, in form and substance
reasonably satisfactory to the Administrative Agent, delivered to the
Administrative Agent prior to such repurchase by Holdings); and
(3) the repurchase by Holdings of the Senior Unsecured Notes with the
Net Cash Proceeds of asset sales permitted under SECTION 8.05(g), SECTION
8.05(k) or SECTION 8.05(l), to the extent that (a) such Net Cash Proceeds are
not required pursuant to this Agreement to repay outstanding Credit Extensions
hereunder, and (b) at the time of such repurchase, Holdings is required by the
terms of the Senior Unsecured Notes to make an offer to repurchase the Senior
Unsecured Notes with such Net Cash Proceeds.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by any Loan Party or, with respect to any
such plan that is subject to Section 412 of the Code or Title IV of ERISA, any
ERISA Affiliate.
"PRINCIPALS" means any GTCR Entity, Xxx X. Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxx
X. Xxxxx and, with respect to each such individual, members of his immediate
family, any of their respective spouses, estates, lineal descendants, heirs,
executors, personal representatives, administrators, trusts for any of their
benefit and charitable foundations to which shares of the capital stock of
Holdings beneficially owned by any of the foregoing have been transferred.
"PROFESSIONAL SERVICES AGREEMENT" means that certain Professional Services
Agreement dated September 7, 2001 by and between the Borrower and the Sponsor,
as amended, restated or otherwise modified pursuant to the terms and conditions
set forth in this Agreement.
"PRO FORMA FINANCIAL STATEMENTS" has the meaning set forth in SECTION
5.01(c)(i).
"REAFFIRMATION AGREEMENT" means the Reaffirmation Agreement, of even date
herewith, executed by each of the Loan Parties in favor of the Administrative
Agent on behalf of the Lenders, substantially in the form of EXHIBIT I, as
amended, restated, supplemented or otherwise modified from time to time.
23
"REGISTER" has the meaning set forth in SECTION 12.07(c).
"RELATED PARTY" means:
(1) any controlling stockholder, partner, or member or a majority (or
more) owned Subsidiary; or
(2) any trust, corporation, limited liability company, partnership or
other entity, the beneficiaries, stockholders, partners, owners or persons
directly or indirectly beneficially holding a majority or more controlling
interest of which consist of any one or more Principals and/or such other
Persons referred to in the immediately preceding clause;
PROVIDED that, notwithstanding the foregoing, with respect to any GTCR Entity,
the term "Related Parties" shall not include any Person other than an affiliated
investment fund of GTCR Xxxxxx Xxxxxx, L.L.C.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Credit Loans, a Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"REQUIRED LENDERS" means, as of any date of determination, Lenders holding
more than 50% of the Revolving Credit Commitments (or the Revolving Credit
Outstandings if the Revolving Credit Commitments have been terminated (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); PROVIDED that the Revolving Credit Commitment of,
and the portion of the Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president, chief
financial officer, treasurer or corporate controller of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of any Person, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such capital stock or other equity interest or of any option, warrant or
other right (other than convertible or exchangeable Indebtedness of such Person)
to acquire any such capital stock or other equity interest.
24
"REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Lenders pursuant to
SECTION 2.01.
"REVOLVING CREDIT COMMITMENT" means, as to each Lender, its obligation to
(a) to make Revolving Credit Loans in accordance with the provisions of SECTION
2.01(a), (b) to purchase participations in L/C Obligations and (c) to purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amounts set forth opposite such Lender's name
on SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
among the Lenders from time to time in accordance with this Agreement.
"REVOLVING CREDIT COMMITMENTS" means the aggregate Revolving Credit Commitment
of all Lenders. On the Closing Date, the Revolving Credit Commitments shall be
$50,000,000.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to each Lender at any
time, a fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Revolving Credit Commitment
of such Lender at such time and the denominator of which is the amount of the
Revolving Credit Commitments at such time; PROVIDED that if the commitment of
each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to SECTION 10.02, then the
Revolving Credit Commitment Percentage of each Lender shall be determined based
on the Revolving Credit Commitment Percentage of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Revolving Credit Commitment Percentage
of each Lender is set forth opposite the name of such Lender on SCHEDULE 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
"REVOLVING CREDIT LOAN" has the meaning set forth in SECTION 2.01(a).
"REVOLVING CREDIT MATURITY DATE" means July 3, 2007.
"REVOLVING CREDIT OUTSTANDINGS" means the aggregate Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans and L/C Obligations.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECURITY DOCUMENTS" means the Collateral Agreement, the Subsidiary
Guaranty Agreement, the Reaffirmation Agreement and any other documents creating
a Lien for the benefit of the Administrative Agent executed by any Loan Party
after the Closing Date, including all filings, financing statements and other
documents delivered in connection therewith.
"SENIOR SUBORDINATED GUARANTY AGREEMENT" means the Subsidiary Guaranty
Agreement dated as of November 26, 2003, as amended, restated, supplemented or
otherwise modified pursuant to the terms and conditions set forth in this
Agreement.
25
"SENIOR SUBORDINATED NOTES" means the collective reference to the senior
subordinated notes of the Borrower issued pursuant to the Senior Subordinated
Note Agreement in the initial principal amount of $44,000,000.
"SENIOR SUBORDINATED NOTE AGREEMENT" means the Bridge Loan Agreement dated
as of November 26, 2003, as amended, restated, supplemented or otherwise
modified pursuant to the terms and conditions set forth in this Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Note
Agreement, the Senior Subordinated Guaranty Agreement and all exhibits and
schedules thereto and each other document, instrument, certificate and agreement
executed or delivered by Holdings, the Borrower or any Subsidiary thereof in
connection with the Senior Subordinated Note Agreement or otherwise referred to
therein or contemplated thereby, all as amended, restated or otherwise modified
pursuant to the terms and conditions set forth in this Agreement.
"SENIOR UNSECURED NOTE DOCUMENTS" means the Senior Unsecured Note Indenture
and all exhibits and schedules thereto and each other document, instrument,
certificate and agreement executed or delivered by Holdings, the Borrower or any
Subsidiary thereof in connection with the Senior Unsecured Note Indenture or
otherwise referred to therein or contemplated thereby (including the
registration rights agreement), all as amended, restated or otherwise modified
pursuant to the terms and conditions set forth in this Agreement.
"SENIOR UNSECURED NOTE INDENTURE" means the Indenture in the form provided
to the Administrative Agent and the Lenders as of the Closing Date, including
such indenture as subsequently qualified under the Trust Indenture Act of 1939
pursuant to which notes registered under the Securities Act of 1933 will be
issued in exchange for the notes issued on or about the Closing Date, as each
may be amended, restated, supplemented or otherwise modified pursuant to the
terms and conditions set forth in this Agreement.
"SENIOR UNSECURED NOTE ISSUANCE" has the meaning set forth in SECTION
5.01(d)(i).
"SENIOR UNSECURED NOTES" means the collective reference to the senior
unsecured notes of the Borrower issued pursuant to the Senior Unsecured Note
Indenture in the initial principal amount of $125,000,000.
"SOLVENT" means, as to Holdings and its Subsidiaries on a particular date,
that Holdings and its Subsidiaries taken as a whole (a) have capital sufficient
to carry on their business and transactions and all business and transactions in
which they are about to engage and are able to pay their debts as they mature,
(b) own property having a value, both at fair valuation on a going concern basis
and at present fair saleable value on a going concern basis, greater than the
amount required to pay their probable liabilities (including contingencies), and
(c) do not believe that they will incur debts or liabilities beyond their
ability to pay such debts or liabilities as they mature.
"SPONSOR" means GTCR Xxxxxx Xxxxxx, L.L.C., a Delaware limited liability
company.
"SUBORDINATED INDEBTEDNESS" means the collective reference to any
Indebtedness of Holdings or any Subsidiary subordinated in right and time of
payment to the Obligations and
26
containing such other terms and conditions (including, without limitation,
subordination terms) as are reasonably satisfactory to the Required Lenders.
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
Holdings and shall include, without limitation, the Borrower and its
Subsidiaries.
"SUBSIDIARY GUARANTORS" means, collectively, all existing and future
Domestic Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTY AGREEMENT" means the Subsidiary Guaranty dated as of
November 26, 2002, made by the Subsidiary Guarantors in favor of the
Administrative Agent on behalf of the Lenders, attached hereto as EXHIBIT G, as
amended, restated, supplemented or otherwise modified from time to time.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Person that is a Lender or
an Affiliate thereof at the time such Swap Contract is executed).
27
"SWING LINE" means the revolving credit facility made available by the
Swing Line Lender pursuant to SECTION 2.04.
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
SECTION 2.04.
"SWING LINE LENDER" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning set forth in SECTION 2.04(a).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to SECTION 2.04(b), which, if in writing, shall be substantially in the form of
EXHIBIT B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a) $5,000,000
and (b) the Revolving Credit Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Revolving Credit Commitments.
"THRESHOLD AMOUNT" means $2,500,000.
"TRANSACTION DOCUMENTS" means the collective reference to the Loan
Documents and the Senior Unsecured Note Documents.
"TRANSITIONAL SERVICES AGREEMENT" means the collective reference to the
Master Agreement for Transitional Services executed and delivered in connection
with the Acquisition and any sub-Agreement executed and delivered pursuant to
the terms thereof.
"TYPE" means, with respect to a Revolving Credit Loan, its character as a
Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means, subject to SECTION 1.05, the Uniform Commercial Code in effect
in the State of
New York, as amended or modified from time to time.
"UNAUDITED MONTHLY FINANCIAL STATEMENTS" has the meaning set forth in
SECTION 5.01(c)(i).
"UNAUDITED QUARTERLY FINANCIAL STATEMENTS" has the meaning set forth in
SECTION 5.01(c)(i).
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in SECTION 2.03(c)(i).
28
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "HEREIN," "HERETO," "HEREOF" and "HEREUNDER" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "INCLUDING" is by way of example and not
limitation.
(iv) The term "DOCUMENTS" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form.
(v) The terms "KNOWLEDGE" or "KNOWN" when used with respect to
any Loan Party shall be deemed to be a reference to the knowledge of any
Responsible Officer.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "FROM" means "FROM AND INCLUDING;" the words "TO"
and "UNTIL" each mean "TO BUT EXCLUDING;" and the word "THROUGH" means "TO AND
INCLUDING."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, EXCEPT as otherwise
specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
Holdings, the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders, Holdings and the Borrower shall negotiate in
good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the Borrower
and the Required Lenders); PROVIDED THAT, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) Holdings and the Borrower shall provide to the
Administrative Agent and the Lenders
29
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04 ROUNDING.
Any financial ratios required to be maintained by Holdings and the Borrower
pursuant to this Agreement and any determination of the Borrowing Base shall be
calculated by dividing the appropriate component by the other component or, with
respect to the Borrowing Base, multiplying such component by the advance rate
percentage, carrying the result to one place more than the number of places by
which such ratio or percentage is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.07 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified, all references herein to the amount of a Letter
of Credit at any time shall be deemed to mean the maximum face amount of such
Letter of Credit after giving effect to all increases thereof contemplated by
such Letter of Credit or the Letter of Credit Application therefor, whether or
not such maximum face amount is in effect at such time.
1.08 BORROWING BASE.
The Borrowing Base shall be determined and computed to avoid duplication or
multiple inclusion of any item of Collateral. The Administrative Agent may make
such adjustments or corrections to any Borrowing Base Certificate as the
Administrative Agent may determine in good faith is necessary or appropriate to
determine and compute the Borrowing Base in accordance with the intent of this
Agreement, and any such determination will be binding on the Loan Parties.
Furthermore, the Administrative Agent may exclude from the Borrowing Base, or
require the Borrower or the applicable Subsidiary thereof to establish reserves
with respect to, Accounts that the Administrative Agent has determined, in good
faith in its reasonable discretion in accordance with its internal credit
policies, that (a) collection of the Account is insecure or (b) the Account is
not likely to be paid by reason of the Account Debtor's financial inability to
pay.
30
The Administrative Agent shall give the Borrower twenty (20) Business Days prior
written notice of any such adjustment or correction (a) in the eligibility
criteria used to determine the Borrowing Base (including, without limitation,
the establishment of any reserves) and (b) to the methodology for calculating
the Borrowing Base.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING CREDIT LOANS.
(a) REVOLVING CREDIT COMMITMENT. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make revolving loans (each such
loan, a "REVOLVING CREDIT LOAN") to the Borrower from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Revolving Credit
Commitment; PROVIDED, HOWEVER, that after giving effect to any Revolving Credit
Borrowing, (i) the Revolving Credit Outstandings shall not exceed the Borrowing
Limit and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of
any Lender, PLUS such Lender's Revolving Credit Commitment Percentage of the
Outstanding Amount of all L/C Obligations, PLUS such Lender's Revolving Credit
Commitment Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender's Revolving Credit Commitment. Within the limits of each
Lender's Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this SECTION 2.01, prepay under
SECTION 2.05, and reborrow under this SECTION 2.01. Revolving Credit Loans may
be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
(b) BORROWING PROCEDURES.
(i) Each Revolving Credit Borrowing shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to the requested date of any
Revolving Credit Borrowing of Eurodollar Rate Loans and (B) on the requested
date of any Revolving Credit Borrowing of Base Rate Loans; PROVIDED, HOWEVER,
that if the Borrower wishes to request Eurodollar Rate Loans having an Interest
Period other than one, two, three or six months in duration as provided in the
definition of "Interest Period", the applicable notice must be received by the
Administrative Agent not later than 11:00 a.m. four Business Days prior to the
requested date of such Revolving Credit Borrowing, whereupon the Administrative
Agent shall give prompt notice to the Lenders of such request and determine
whether the requested Interest Period is available to all of them. Not later
than 11:00 a.m., three Business Days before the requested date of such Revolving
Credit Borrowing, the Administrative Agent shall notify the Borrower (which
notice may be by telephone) whether or not the requested Interest Period is
available to all of the Lenders. Each telephonic notice by the Borrower pursuant
to this SECTION 2.01(b) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Revolving Credit Borrowing
of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess
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thereof. Except as provided in SECTIONS 2.03(c) and 2.04(c), each Revolving
Credit Borrowing of Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (A) the requested date of the Revolving
Credit Borrowing (which shall be a Business Day), (B) the principal amount of
Revolving Credit Loans to be borrowed, (C) the Type of Revolving Credit Loans to
be borrowed, and (D) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Revolving Credit
Loan in a Loan Notice, then the applicable Revolving Credit Loans shall be made
as Base Rate Loans. If the Revolving Credit Borrower requests a Borrowing of
Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(ii) Following receipt of a Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Revolving Credit
Commitment Percentage of the applicable Revolving Credit Loans. Each Lender
shall make the amount of its Revolving Credit Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in SECTION 5.02 (and, if such Revolving Credit Borrowing is the initial Credit
Extension, SECTION 5.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (A) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (B) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; PROVIDED,
HOWEVER, that if, on the date the Loan Notice with respect to such Revolving
Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Revolving Credit Borrowing shall be applied, FIRST, to
the payment in full of any such L/C Borrowings and SECOND, to the Borrower as
provided above.
(iii) The Administrative Agent shall promptly notify the Borrower
and the Lenders of the interest rate applicable to any Interest Period for
Revolving Credit Loans bearing interest based upon the Eurodollar Rate upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
At any time that Revolving Credit Loans bearing interest based upon the Base
Rate are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(iv) During the existence of a Default, no Loans may be requested
as Eurodollar Rate Loans without the consent of the Required Lenders.
2.02 CONVERSIONS AND CONTINUATIONS OF REVOLVING CREDIT LOANS.
(a) The Borrower shall have the option to convert Revolving Credit Loans
(other than Swing Line Loans) from one Type to the other and to continue
Eurodollar Rate Loans. Each conversion of Revolving Credit Loans from one Type
to the other, and each continuation of Eurodollar Rate Loans shall be made upon
the Borrower's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by
32
the Administrative Agent not later than 11:00 a.m. three Business Days prior to
the requested date of any conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Loans; PROVIDED,
HOWEVER, that if the Borrower wishes to convert to or continue Eurodollar Rate
Loans having an Interest Period other than one, two, three or six months in
duration as provided in the definition of "Interest Period", (i) the applicable
notice must be received by the Administrative Agent not later than 11:00 a.m.
four Business Days prior to the requested date of such conversion or
continuation, whereupon the Administrative Agent shall give prompt notice to the
Lenders of such request and determine whether the requested Interest Period is
available to all of them and (ii) not later than 11:00 a.m., three Business Days
before the requested date of such conversion or continuation, the Administrative
Agent shall notify the Borrower (which notice may be by telephone) whether or
not the requested Interest Period is available to all of the Lenders. Each
telephonic notice by the Borrower pursuant to this SECTION 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a conversion of Revolving Credit Loans from one Type to the other, or
a continuation of Eurodollar Rate Loans, (ii) the requested date of the
conversion or continuation (which shall be a Business Day), (iii) the principal
amount of Revolving Credit Loans to be converted or continued, (iv) the Type of
Revolving Credit Loans to which existing Revolving Credit Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to give a timely notice requesting a
conversion or continuation of Eurodollar Rate Loans, then the applicable
Eurodollar Rate Loans shall be converted to Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a conversion to or continuation of Eurodollar
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender. If no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Revolving Credit
Loans may be converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders.
2.03 LETTERS OF CREDIT.
(a) LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this SECTION 2.03, (1)
33
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower and to amend or renew Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of the Borrower; PROVIDED that the
L/C Issuer shall not be obligated to make any L/C Credit Extension with respect
to any Letter of Credit, and no Lender shall be obligated to participate in any
Letter of Credit if as of the date of such L/C Credit Extension, (x) the
Revolving Credit Outstandings would exceed the Borrowing Limit, (y) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, PLUS
such Lender's Revolving Credit Commitment Percentage of the Outstanding Amount
of all L/C Obligations, PLUS such Lender's Revolving Credit Commitment
Percentage of the Outstanding Amount of all Swing Line Loans would exceed such
Lender's Revolving Credit Commitment, or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to SECTION 2.03(b)(iii), the expiry date of
such requested Letter of Credit would occur more than twelve months after the
date of issuance or last renewal, unless the Required Lenders have approved such
expiry date;
(C) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless all the Lenders
have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer as such policies are consistently applied to
all similarly situated customers of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than
$100,000, in the case of a commercial Letter of Credit, or $500,000, in the case
of a standby Letter of Credit.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its
34
amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
(b) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT;
AUTO-RENEWAL LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application must be received by the L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least two Business
Days (or such later date and time as the L/C Issuer may agree in a particular
instance in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the L/C Issuer will provide
the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of
confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C Issuer's
usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such Lender's
Revolving Credit Commitment Percentage TIMES the amount of such Letter of
Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions (each,
an "AUTO-RENEWAL LETTER OF CREDIT"); PROVIDED that any such Auto-Renewal Letter
of Credit must permit the L/C Issuer to prevent any such renewal at least once
in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the "NONRENEWAL NOTICE DATE") in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrower shall not be required
35
to make a specific request to the L/C Issuer for any such renewal. Once an
Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the renewal of
such Letter of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; PROVIDED, HOWEVER, that the L/C Issuer shall not permit
any such renewal if (A) the L/C Issuer has determined that it would have no
obligation at such time to issue such Letter of Credit in its renewed form under
the terms hereof (by reason of the provisions of SECTION 2.03(a)(ii) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is two Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such renewal or (2) from the Administrative Agent, any
Lender or the Borrower that one or more of the applicable conditions specified
in SECTION 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and
the Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify
the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the L/C Issuer under a Letter of Credit (each such
date, an "HONOR DATE"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount of such
Lender's Revolving Credit Commitment Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in
SECTION 2.01 for the principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Revolving Credit Commitments and the
conditions set forth in SECTION 5.02 (other than the delivery of a Loan Notice).
Any notice given by the L/C Issuer or the Administrative Agent pursuant to this
SECTION 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; PROVIDED that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to SECTION 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent's Office in an amount equal to its Revolving Credit Commitment Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of SECTION 2.03(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Revolving Credit Loan bearing interest at the
Base Rate to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the L/C Issuer.
36
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in SECTION 5.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Lender's
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to SECTION 2.03(c)(ii) shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this SECTION 2.03.
(iv) Until each Lender funds its Revolving Credit Loan or L/C
Advance pursuant to this SECTION 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such Lender's
Revolving Credit Commitment Percentage of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Credit Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this SECTION 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
PROVIDED, HOWEVER, that each Lender's obligation to make Revolving Credit Loans
pursuant to this SECTION 2.03(c) is subject to the conditions set forth in
SECTION 5.02 (other than delivery by the Borrower of a Loan Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this SECTION 2.03(c) by the time
specified in SECTION 2.03(c)(ii), the L/C Issuer shall be entitled to recover
from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to time in
effect. A certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with SECTION 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Revolving Credit Commitment Percentage thereof (appropriately
adjusted, in the case of interest
37
payments, to reflect the period of time during which such Lender's L/C Advance
was outstanding) in the same funds as those received by the Administrative
Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to SECTION 2.03(c)(i) is required to be
returned under any of the circumstances described in SECTION 12.06 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its Revolving Credit Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that the Borrower may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C
38
Issuer. The Borrower shall be conclusively deemed to have waived any such claim
against the L/C Issuer and its correspondents unless such notice is given as
aforesaid.
(f) ROLE OF L/C ISSUER. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of bad faith, gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit
Application. The Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
PROVIDED, HOWEVER, that this assumption is not intended to, and shall not,
preclude the Borrower's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of SECTION 2.03(e);
PROVIDED, HOWEVER, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer's bad faith,
willful misconduct or gross negligence or the L/C Issuer's willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer 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 the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest
39
in all such cash, deposit accounts and all balances therein and all proceeds of
the foregoing. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America.
(h) APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each commercial Letter of Credit.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Revolving Credit
Commitment Percentage a Letter of Credit Fee for each Letter of Credit equal to
the Applicable Rate times the daily maximum amount available to be drawn under
such Letter of Credit (whether or not such maximum amount is then in effect
under such Letter of Credit). The Letter of Credit Fees shall be computed on a
quarterly basis in arrears. The Letter of Credit Fees shall be due and payable
on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. If there is
any change in the Applicable Rate during any quarter, the daily maximum amount
of each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.
(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit in the amounts and at the
times specified in the Fee Letter. In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in effect.
Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.
(k) CONFLICT WITH LETTER OF CREDIT APPLICATION. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 SWING LINE LOANS.
(a) THE SWING LINE. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "SWING
LINE LOAN") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Revolving Credit Commitment Percentage of
the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender's
Revolving Credit
40
Commitment; PROVIDED, HOWEVER, that after giving effect to any Swing Line Loan,
(i) the Revolving Credit Outstandings shall not exceed the Borrowing Limit, and
(ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any
Lender, PLUS such Lender's Revolving Credit Commitment Percentage of the
Outstanding Amount of all L/C Obligations, PLUS such Lender's Revolving Credit
Commitment Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender's Revolving Credit Commitment, and PROVIDED, FURTHER,
that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this SECTION
2.04, prepay under SECTION 2.05, and reborrow under this SECTION 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Revolving Credit Commitment Percentage TIMES the amount of such Swing
Line Loan.
(b) BORROWING PROCEDURES. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of SECTION 2.04(a), or (B) that one or more of the
applicable conditions specified in ARTICLE V is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) REFINANCING OF SWING LINE LOANS.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender
make a Revolving Credit Loan bearing interest at the Base Rate in an amount
equal to such Lender's Revolving Credit Commitment Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of SECTION 2.01, without regard to the minimum
and multiples specified therein
41
for the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in
SECTION 5.02. The Swing Line Lender shall furnish the Borrower with a copy of
the applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Revolving
Credit Commitment Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
SECTION 2.04(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Revolving Credit Loan bearing interest at the Base Rate to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Revolving Credit Borrowing in accordance with SECTION 2.04(c)(i), the
request for Revolving Credit Loans bearing interest at the Base Rate submitted
by the Swing Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Lenders fund its risk participation in
the relevant Swing Line Loan and each Lender's payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to SECTION 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by
such Lender pursuant to the foregoing provisions of this SECTION 2.04(c) by the
time specified in SECTION 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing
Line Lender at a rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Credit Loans or
to purchase and fund risk participations in Swing Line Loans pursuant to this
SECTION 2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; PROVIDED, HOWEVER, that each
Lender's obligation to make Revolving Credit Loans pursuant to this SECTION
2.04(c) is subject to the conditions set forth in SECTION 5.02. No such funding
of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Revolving Credit Commitment Percentage of such
payment (appropriately adjusted, in the case of interest
42
payments, to reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the Swing Line
Lender.
(ii) If any payment received by the Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in SECTION 12.06
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Lender shall pay to the Swing Line Lender its Revolving
Credit Commitment Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line
Lender.
(e) INTEREST FOR ACCOUNT OF SWING LINE LENDER. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Revolving Credit Loan bearing interest at the
Base Rate or risk participation pursuant to this SECTION 2.04 to refinance such
Lender's Revolving Credit Commitment Percentage of any Swing Line Loan, interest
in respect of such Revolving Credit Commitment Percentage shall be solely for
the account of the Swing Line Lender.
(f) PAYMENTS DIRECTLY TO SWING LINE LENDER. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower may,
upon notice to the Administrative Agent, at any time or from time to time,
voluntarily prepay Revolving Credit Loans in whole or in part without premium or
penalty; PROVIDED that (i) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; and
(iii) any prepayment of Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Revolving Credit Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such
Lender's Revolving Credit Commitment Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest thereon, together with any additional amounts required
pursuant to SECTION 4.05. Each such prepayment shall be applied to the Revolving
Credit Loans of the Lenders in accordance with their respective Revolving Credit
Commitment Percentages.
(b) VOLUNTARY PREPAYMENTS OF SWING LINE LOANS. The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty;
43
PROVIDED that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $100,000 or,
if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) PREPAYMENTS OF EXCESS EXTENSIONS OF CREDIT. If for any reason the
Revolving Credit Outstandings at any time exceed the Borrowing Limit then in
effect, the Borrower shall immediately prepay Revolving Credit Loans and/or
Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; PROVIDED, HOWEVER, that the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this SECTION
2.05(c) unless, after the prepayment in full of the Revolving Credit Loans and
Swing Line Loans, the Revolving Credit Outstandings exceed the Borrowing Limit
then in effect.
(d) MANDATORY PREPAYMENTS OF REVOLVING CREDIT LOANS.
(i) ASSET SALE PROCEEDS. No later than one hundred eighty (180)
days following the receipt by any Loan Party, the Borrower shall make mandatory
principal prepayments of the Revolving Credit Loans in the manner set forth in
SECTION 2.05(d)(iii) below in amounts equal to one hundred percent (100%) of the
aggregate Net Cash Proceeds from the Disposition or series of related
Dispositions of assets by any Loan Party permitted pursuant to SECTION 8.05(k)
AND (l) (the "DISPOSITION PROCEEDS"); PROVIDED that any prepayment required
pursuant to this SECTION 2.05(d)(i) with respect to any Disposition Proceeds of
less than $5,000,000 (any such amounts, the "DEFERRED PROCEEDS") may be deferred
until such time as the aggregate amount of all such Deferred Proceeds that have
not previously been reinvested or applied to prepay Revolving Credit Loans
equals or exceeds $5,000,000, PROVIDED, FURTHER, if the Borrower shall deliver
to the Administrative Agent an officer's certificate to the effect that the
Borrower and the Subsidiaries intend to apply Disposition Proceeds within 180
days after receipt of such Disposition Proceeds, to make Permitted Acquisitions
or to acquire real property, equipment or other assets to be used in the
business of the Borrower and the Subsidiaries, and certifying that no Default or
Event of Default has occurred and is continuing, then no prepayment shall be
required pursuant to this paragraph in respect of such event except to the
extent that any Disposition Proceeds have not been so applied at the end of such
180-day period, at which time a prepayment shall be required in an amount equal
to such Disposition Proceeds that have not been so applied. Notwithstanding any
of the foregoing to the contrary, upon and during the continuance of a Default
under SECTION 10.1(a) and upon notice from the Administrative Agent, all
Disposition Proceeds received by any Loan Party shall be applied to make
prepayments of the Loans, such prepayments to be made within the later to occur
of three (3) Business Days after the date of receipt of Disposition Proceeds of
any such transaction and the occurrence of any such Default.
(ii) INSURANCE AND CONDEMNATION PROCEEDS. No later than one
hundred eighty (180) days following the date of receipt by any Loan Party of any
Net Cash Proceeds under any of the insurance policies maintained pursuant to
SECTION 7.07 or from any condemnation proceeding (the "INSURANCE AND
CONDEMNATION PROCEEDS") which have not been reinvested as of such date in
similar replacement assets (unless such Insurance and Condemnation Proceeds have
44
been committed to be reinvested within such one hundred eighty (180) day period
and are thereafter actually reinvested within two hundred seventy (270) days
after receipt thereof), the Borrower shall make mandatory principal prepayments
of the Revolving Credit Loans in the manner set forth in SECTION 2.05(d)(iii)
below in amounts equal to one hundred percent (100%) of the aggregate amount of
such Insurance and Condemnation Proceeds received by any Loan Party.
Notwithstanding any of the foregoing to the contrary, upon and during the
continuance of a Default under SECTION 10.1(a) and upon notice from the
Administrative Agent, all Insurance and Condemnation Proceeds received by any
Loan Party shall be applied to make prepayments of the Loans, such prepayments
to be made within three (3) Business Days after the date of receipt of such
Insurance and Condemnation Proceeds.
(iii) NOTICE; MANNER OF PAYMENT. Upon the occurrence of any event
triggering the prepayment requirement under SECTIONS 2.05(d)(i) and 2.05(d)(ii),
the Borrower shall promptly give written notice to the Administrative Agent and
upon receipt of such notice, the Administrative Agent shall promptly so notify
the Lenders. Each prepayment under this SECTION 2.05(d) shall be applied to
repay the outstanding principal amount of the Revolving Credit Loans, without a
corresponding reduction in the Revolving Credit Commitments. Each prepayment
shall be accompanied by any amount required to be paid pursuant to SECTION 4.05
hereof.
2.06 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS.
The Borrower may, upon notice to the Administrative Agent, voluntarily
terminate the Revolving Credit Commitments, or from time to time, voluntarily
permanently reduce the Revolving Credit Commitments; PROVIDED that (i) any such
notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $1,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate
or reduce the Revolving Credit Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the Revolving Credit Outstandings would
exceed the Revolving Credit Commitments, and (iv) if, after giving effect to any
reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Revolving Credit Commitments,
such Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Revolving Credit Commitments. Any reduction of
the Revolving Credit Commitments shall be applied to the Revolving Credit
Commitment of each Lender according to its Revolving Credit Commitment
Percentage. All Commitment Fees accrued until the effective date of any
termination of the Revolving Credit Commitments shall be paid on the effective
date of such termination.
2.07 REPAYMENT OF LOANS.
(a) REPAYMENT OF REVOLVING CREDIT LOANS. The Borrower shall repay to the
Lenders on the Revolving Credit Maturity Date the aggregate principal amount of
Revolving Credit Loans outstanding on such date.
45
(b) REPAYMENT OF SWING LINE LOANS. The Borrower shall repay each Swing
Line Loan on the earlier to occur of (i) the date that is five Business Days
after such Swing Line Loan is made and (ii) the Revolving Credit Maturity Date.
ARTICLE III.
GENERAL LOAN PROVISIONS
3.01 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period PLUS the Applicable Rate; (ii) each Base Rate Loan
(other than Swing Line Loans) shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate PLUS the Applicable Rate; and (iii) each Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate PLUS the Applicable
Rate.
(b) If any amount payable by the Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
3.02 FEES.
In addition to certain fees described in subsections (i) and (j) of SECTION
2.03:
(a) COMMITMENT FEE. The Borrower shall pay to the Administrative Agent,
for the account of each Lender in accordance with its Revolving Credit
Commitment Percentage, a commitment fee (the "COMMITMENT FEE") equal to the
Applicable Rate TIMES the actual daily amount by which the Revolving Credit
Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit
Loans and (ii) the Outstanding Amount of L/C Obligations. The Commitment Fee
shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in ARTICLE V is not met, and shall be
due and payable quarterly in arrears on the last Business Day of each calendar
quarter, commencing with the first such date to occur after the Closing Date,
and on the Revolving Credit Maturity Date. The Commitment Fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by
46
the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) OTHER FEES.
(i) The Borrower shall pay to the Arranger and the
Administrative Agent, for their own respective accounts, fees in the amounts and
at the times separately agreed upon (including, without limitation, those fees
required to be paid by the Borrower pursuant to the terms of the Fee Letter).
Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
3.03 COMPUTATION OF INTEREST AND FEES.
All computations of interest for Base Rate Loans, when the Base Rate is
determined by Bank of America's "prime rate," shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, PROVIDED that any Loan that is repaid on the same day on which it is
made shall, subject to SECTION 3.05(a), bear interest for one day.
3.04 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit
47
and Swing Line Loans. In the event of any conflict between the accounts and
records maintained by the Administrative Agent and the accounts and records of
any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
3.05 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Revolving Credit Commitment Percentage (or other applicable
share as provided herein), of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately available
funds, together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent in
immediately available funds at the Federal Funds Rate from time to time in
effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period from
the date such amount was made available by the Administrative Agent to the
Borrower to the date such amount is recovered by the Administrative Agent (the
"COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from
time to time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower, and
48
the Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing (which amount shall be
credited to the Borrower's next quarterly interest payment pursuant to SECTION
3.01) Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Revolving Credit Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this ARTICLE III, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in ARTICLE V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
3.06 SHARING OF PAYMENTS.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations or
Swing Line Loans held by them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them;
PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in SECTION 12.06 (including pursuant to any settlement entered into by
the purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid
49
or payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to SECTION 12.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
3.07 SECURITY.
(a) The Obligations shall be secured as provided in the Security
Documents.
(b) Holdings and the Borrower hereby (i) reaffirm all of their
respective covenants, representations, warranties and other obligations set
forth in each Security Document executed prior to the Closing Date in connection
with the Existing Credit Agreement and (ii) acknowledge, represent and agree
that such covenants, representations, warranties and other obligations remain in
full force and effect and secure the Obligations.
(c) Holdings, the Borrower, the Administrative Agent and the Lenders
hereby agree to amend the Security Documents in the manner set forth in the
Reaffirmation Agreement.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, EXCLUDING, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the United States or by the jurisdiction (or any political
subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "TAXES"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay
50
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt or other evidence of payment thereof reasonably satisfactory to the
Administrative Agent.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "OTHER TAXES").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such amount (in addition to, but not in duplication of, any amounts the
Borrower is required to deduct or pay pursuant to other provisions of this
Section 4.01) that the Administrative Agent or such Lender specifies to the
Borrower is necessary to be received by the Administrative Agent or such Lender
in order for the Administrative Agent's or such Lender's after-tax yield under
the Loan Documents (taking into account all Taxes and Other Taxes, as well as
any taxes imposed on or measured by net income) to be the same as such after-tax
yield would have been if such Taxes or Other Taxes had not been imposed. To the
extent reasonably requested by the Borrower, the Administrative Agent or such
Lender, as the case may be, shall provide documentation and other evidence to
the Borrower supporting the amount specified by the Administrative Agent or such
Lender in the previous sentence.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for, from and against (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under SECTION 4.01(c) and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. Payment under this subsection (d) shall be made within 30 days after
the date the Lender or the Administrative Agent makes a demand therefor.
(e) Each Lender agrees, upon the request of the Borrower, to use
reasonable efforts (consistent with its internal policies and with legal and
regulatory restrictions) to avoid or minimize amounts which might otherwise be
payable pursuant to this Section 4.01 if such efforts or actions will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
4.02 ILLEGALITY.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the
51
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
4.03 INABILITY TO DETERMINE RATES.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Base Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Revolving Credit Borrowing of Base Rate Loans in the amount specified therein.
4.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which SECTION
4.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States, or any foreign jurisdiction, or
any political subdivision of either thereof under the Laws of which such Lender
is organized or has its Lending Office, and (iii) reserve requirements utilized
in the determination of the Eurodollar Rate), then from time to time upon demand
of such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction; PROVIDED that the Borrower
shall not be required to compensate a Lender pursuant to this SECTION 4.04(a)
for any increased costs or reductions incurred more than 180 days prior to the
date such Lender notifies the Borrower of such change in Law or interpretation
of Law and of such Lender's intention to claim compensation therefor.
52
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction; PROVIDED that the Borrower shall not be required
to compensate a Lender pursuant to this SECTION 4.04(b) for any reductions in
the rate of return suffered or incurred more than 180 days prior to the date
such Lender notifies the Borrower of such introduction, change or interpretation
of, or compliance with, Law regarding capital adequacy and of such Lender's
intention to claim compensation therefor.
4.05 FUNDING LOSSES.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to SECTION 12.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this SECTION 4.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
4.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this ARTICLE IV and setting forth in reasonable detail the
basis for, and computation of, the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of
53
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under SECTION 4.01
or 4.04, the Borrower may replace such Lender in accordance with SECTION 12.16.
4.07 SURVIVAL.
All of the Borrower's obligations under this ARTICLE IV shall survive
termination of the Revolving Credit Commitments and repayment of all other
Obligations hereunder.
ARTICLE V.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 CONDITIONS OF INITIAL CREDIT EXTENSION.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) GENERAL LOAN DOCUMENTS, CERTIFICATES AND OPINIONS. The
Administrative Agent's receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance reasonably satisfactory to the Administrative Agent and its legal
counsel:
(i) PRIMARY LOAN DOCUMENTS. Executed counterparts of this
Agreement, the Security Documents, the Guaranty Agreement and any other
applicable Loan Documents (to the extent not previously delivered under the
Existing Credit Agreement), sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) NOTES. A Note executed by the Borrower in favor of each
Lender that has requested a Note by giving written notice to the Administrative
Agent prior to the Closing Date;
(iii) GENERAL CERTIFICATES. A certificate of the secretary or
assistant secretary of each Loan Party certifying as to the incumbency and
genuineness of the signature of each officer of each Loan Party executing Loan
Documents to which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles or certificate of incorporation or
formation of each Loan Party and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction of
incorporation or formation, (B) the bylaws or other governing document of each
Loan Party as in effect on the date of such certifications, (C) resolutions duly
adopted by the board of directors or other governing body of each Loan Party
authorizing the borrowings contemplated hereunder and the execution, delivery
and performance of the Loan Documents to which it is a party and (D)
certificates as of a recent date of the good standing of each Loan Party under
the laws of its jurisdiction of organization and, to the extent requested by the
Administrative Agent, each other jurisdiction where each Loan Party is qualified
to do business and a certificate, if available, of the relevant taxing
54
authorities of such jurisdictions certifying that such Loan Party has filed
required tax returns and owes no delinquent taxes; PROVIDED that, with respect
to items (A) and (B) noted herein, such Loan Party shall not be required to
deliver the documents noted therein if such Loan Party certifies that the
articles or certificate of incorporation or formation of such Loan Party and all
amendments thereto and the bylaws or other governing document of such Loan Party
and all amendments thereto which were delivered to the Administrative Agent in
connection with the Existing Credit Agreement have not been repealed, revoked,
rescinded or further amended in any respect and that each remains in full force
and effect as of the Closing Date.
(iv) OFFICER'S CERTIFICATE. A certificate of a Responsible
Officer of each of Holdings and the Borrower certifying (A) that the conditions
specified in SECTIONS 5.01 and 5.02 (solely with respect to each item or
condition set forth therein which is required to be delivered by, obtained by,
paid by, received by or represented and warranted by Holdings, the Borrower or
any Subsidiary thereof) have been satisfied, (B) that since December 31, 2002,
there has been no change, occurrence or development that has had or could be
reasonably expected to have a Material Adverse Effect and (C) that no actions,
suits, investigations or proceedings are pending or threatened in any court or
before any arbitrator or Governmental Authority that purport (1) to materially
and adversely affect the Loan Parties or (2) to affect any transaction
contemplated by this Agreement or the ability of the Loan Parties or any other
obligor under the Loan Documents to perform their respective obligations under
the Loan Documents;
(v) OPINION OF COUNSEL. A favorable opinion of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to such matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) BORROWING BASE CERTIFICATE. A Borrowing Base Certificate as
of May 31, 2003;
(vii) ACCOUNTS RECEIVABLE AGING REPORT. An accounts receivable
aging report listing all Accounts of the Borrower and its Subsidiaries as of May
31, 2003 which report shall include the amount and age of each Account Debtor
and such other information as the Administrative Agent may require, all in form
and substance reasonably satisfactory to the Administrative Agent;
(viii) FIELD AUDIT. A field audit with respect to all Accounts of
the Borrower and its Subsidiaries in form and substance reasonably satisfactory
to the Administrative Agent, which field audit was completed on June 12, 2003;
and
(ix) OTHER DOCUMENTATION. Such other assurances, certificates,
documents, consents or opinions (including a copy of the opinion issued to the
holders of the Senior Unsecured Notes that provides that the Administrative
Agent, the L/C Issuer, the Swing Line Lender and the Lenders may rely on certain
aspects of such opinion), as the Administrative Agent, the L/C Issuer, the Swing
Line Lender or the Required Lenders reasonably may require.
55
(b) COLLATERAL.
(i) FILINGS AND RECORDINGS. All filings and recordations that
are necessary to perfect the security interests of the Lenders in the collateral
described in the Security Documents (including, without limitation, Assignment
Agreements and Notices of Assignment executed by the applicable Loan Party (but
not the United States or any applicable agency, department or instrumentality
thereof) with respect to each Material Government Contract existing as of the
Closing Date) shall have been received by the Administrative Agent (to the
extent not previously delivered under the Existing Credit Agreement and subject
to confirmation that filings continue to be effective) and the Administrative
Agent shall have received evidence satisfactory thereto that upon such filings
and recordations such security interests constitute valid and perfected first
priority Liens therein.
(ii) PLEDGED COLLATERAL. The Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
capital stock or other ownership interests pledged pursuant to the Security
Documents, together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof and (B) each original
promissory note pledged pursuant to the Security Documents (to the extent not
previously received in connection with the closings of the Existing Credit
Agreement).
(iii) LIEN SEARCH. The Administrative Agent shall have received
the results of a Lien search made against each Loan Party under the UCC as in
effect in its jurisdiction of organization, indicating among other things that
its assets are free and clear of any Lien except for Liens permitted hereunder,
in each case, to the extent necessary to confirm and update the results of the
Lien searches conducted by the Administrative Agent in connection with the
closing of the Existing Credit Agreement.
(iv) HAZARD AND LIABILITY INSURANCE. The Administrative Agent
shall have received certificates of insurance, evidence of payment of all
insurance premiums for the current policy year of each, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
(c) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent and the
Lenders shall have received (A) the audited consolidated balance sheet of
Holdings and its Subsidiaries and the related consolidated statements of income
or operations, shareholders' equity and cash flows for the Fiscal Year ended
December 31, 2002 (the "AUDITED FINANCIAL STATEMENTS"), (B) the unaudited
consolidated balance sheet of Holdings and its Subsidiaries and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the Fiscal Quarter ended March 31, 2003 (the "UNAUDITED QUARTERLY
FINANCIAL STATEMENTS"), (C) the unaudited consolidated balance sheet of Holdings
and its Subsidiaries and the related consolidated statements of income or
operations for the calendar months ended April 30, 2002 and May 31, 2002 (the
"UNAUDITED MONTHLY FINANCIAL STATEMENTS") and (D) the PRO FORMA financial
statements of Holdings and its Subsidiaries after giving effect to the Senior
Unsecured Note Issuance and the other transactions contemplated by this
Agreement (the "PRO FORMA FINANCIAL STATEMENTS"), all in
56
form and substance satisfactory to the Administrative Agent and the Lenders and
prepared in accordance with GAAP. As of June 25, 2003, the Lenders have received
all such financial statements.
(ii) FINANCIAL FORECASTS. The Administrative Agent shall have
received financial forecasts with respect to Holdings and its Subsidiaries
prepared by a Responsible Officer of each of Holdings and the Borrower, each in
form satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements on a quarterly basis for the first year
following the Closing Date and on an annual basis for each year thereafter
during the term of this Agreement.
(iii) FINANCIAL CONDITION CERTIFICATE. Holdings and the Borrower
shall have delivered to the Administrative Agent a certificate, in form and
substance reasonably satisfactory to the Administrative Agent, and certified as
accurate by a Responsible Officer of each of Holdings and the Borrower, that (A)
attached thereto are calculations evidencing compliance, as determined on a PRO
FORMA basis as of May 31, 2003 and after giving effect to the Senior Unsecured
Note Issuance and the other transactions contemplated by this Agreement, with
the covenants contained in SECTIONS 8.18 and 8.19, (B) the PRO FORMA financial
statements delivered pursuant to SECTION 5.01(c)(i) and the forecasts delivered
pursuant to SECTION 5.01(c)(ii) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions are believed to be reasonable in
light of then existing conditions, it being understood that forecasts are
subject to inherent uncertainties and (C) after giving effect to the
transactions contemplated by the Senior Unsecured Note Issuance and the other
transactions contemplated by this Agreement, Holdings, the Borrower and the
other Guarantors, taken as a whole, are Solvent.
(iv) FEES. The Borrower shall have paid (i) all fees and expenses
required to be paid on or before the Closing Date and (ii) all Attorney Costs of
the Administrative Agent to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(v) SENIOR SUBORDINATED NOTES. The Administrative Agent shall
have received evidence, in form and substance reasonably satisfactory thereto,
that (A) the Senior Subordinated Notes have been, or concurrently with the
Closing Date are being, repaid in full and terminated and (B) the Senior
Subordinated Note Agreement and the Senior Subordinated Guaranty Agreement have
been, or concurrently with the Closing Date are being, terminated (other than
any indemnification obligations and expense reimbursement obligations that
expressly survive the termination of the Senior Subordinated Note Agreement and
Senior Subordinated Guaranty Agreement) and the Administrative Agent shall have
received a pay-off letter in form and substance reasonably satisfactory thereto
evidencing such repayment and termination.
(vi) OTHER FINANCIAL INFORMATION. The Administrative Agent shall
have received any updates or modifications to the financial information
previously provided thereto by Holdings and the Borrower, as reasonably
requested by the Administrative Agent.
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(d) SENIOR UNSECURED NOTES.
(i) SENIOR UNSECURED NOTE ISSUANCE. The Borrower shall have
received, on or prior to the Closing Date, net cash proceeds from the issuance
of the Senior Unsecured Notes in an aggregate amount equal to at least
$120,000,000 (collectively, the "SENIOR UNSECURED NOTE ISSUANCE"), which net
cash proceeds shall be used to repay (i) the outstanding principal amount of the
Term Loan under the Existing Credit Agreement and (ii) all outstanding
obligations under the Senior Subordinated Note Agreement, such Senior Unsecured
Note Issuance to be on terms and conditions reasonably satisfactory to the
Administrative Agent.
(ii) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of the
Senior Unsecured Note Documents or the consummation of the transactions
contemplated thereby, or which, in the Administrative Agent's reasonable
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and the other Loan Documents.
(iii) OTHER DOCUMENTS. The Administrative Agent shall have
received any Senior Unsecured Note Documents requested thereby, and each Senior
Unsecured Note Document shall be in form and substance reasonably satisfactory
to the Administrative Agent.
(e) MISCELLANEOUS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. The Loan Parties
shall have received all material governmental, shareholder and third party
consents and approvals necessary (as determined in the reasonable discretion of
the Administrative Agent) in connection with the transactions contemplated by
this Agreement and the other Loan Documents and the other transactions
contemplated hereby (including, without limitation, the Senior Unsecured Note
Issuance) and no action has been taken by any Person that could reasonably be
expected restrain, prevent or impose any material adverse conditions on any of
the Loan Parties or such other transactions or that could seek or threaten any
of the foregoing, and no law or regulation shall be applicable which in the
reasonable judgment of the Administrative Agent could reasonably be expected to
have such effect.
(ii) LOAN NOTICE. The Administrative Agent shall have received a
Loan Notice, as applicable, from the Borrower in accordance with SECTION 2.01(b)
and SECTION 2.02(b).
(iii) PROFESSIONAL SERVICES AGREEMENT. The Administrative Agent
shall have received (to the extent not previously delivered under the Existing
Credit Agreement and still in full force and effect) the written acknowledgement
by the parties to the Professional Services Agreement of the restrictions set
forth in SECTION 8.10 and that such restrictions do not constitute a breach of
the Professional Services Agreement.
(iv) OTHER DOCUMENTS. All opinions, certificates and other
instruments, and all proceedings in connection with the transactions
contemplated by the Transaction Documents, shall be reasonably satisfactory in
form and substance to the Administrative Agent. The Administrative
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Agent shall have received copies of all other documents, certificates and
instruments reasonably requested thereby, with respect to the transactions
contemplated by the Transaction Documents.
(f) AMENDMENT AND RESTATEMENT. On the Closing Date, this Agreement shall
amend and restate the Existing Credit Agreement in its entirety, except as
provided in this SECTION 5.01(f). On the Closing Date, (i) all outstanding
Revolving Credit Loans under the Existing Credit Agreement (the "EXISTING
REVOLVING CREDIT LOANS") made by any Existing Lender who is not a Lender
hereunder shall be repaid in full and the commitments and other obligations and
rights (except as expressly set forth in the Existing Credit Agreement) of such
Existing Lender shall be terminated, (b) all Existing Revolving Credit Loans not
being repaid under item (a) above, shall be, from and after the Closing Date,
Revolving Credit Loans hereunder and the Administrative Agent shall make such
transfers of funds as are necessary in order that the outstanding balance of
such Revolving Credit Loans, together with any Revolving Credit Loans funded
hereunder on the Closing Date, reflect the Revolving Credit Commitments of the
Lenders hereunder, (c) all outstanding Letters of Credit under the Existing
Credit Agreement (collectively, the "EXISTING LETTERS OF CREDIT") shall be, from
and after the Closing Date, Letters of Credit hereunder, (d) all accrued but
unpaid interest due on the Existing Revolving Credit Loans to the Closing Date
shall be paid in cash in full on the Closing Date, (e) all accrued but unpaid
fees under the Existing Credit Agreement owing to the Administrative Agent and
the Existing Lenders under the Existing Credit Agreement to the Closing Date
shall be paid in cash in full on the Closing Date, and (f) all outstanding
promissory notes issued by the Borrower to the Existing Lenders under the
Existing Credit Agreement shall be deemed canceled and the originally executed
copies thereof shall be promptly returned to the Administrative Agent who shall
forward such notes to the Borrower.
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS.
The obligation of each Lender to honor any Request for Credit Extension is
subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in ARTICLE VI and each other Loan Document that are subject
to materiality or Material Adverse Effect qualifications shall be true and
correct in all respects and the representations and warranties of the Borrower
and each other Loan Party contained in ARTICLE VI and each other Loan Document
that are not subject to materiality or Material Adverse Effect qualifications
shall be true and correct in all material respects, in each case, on and as of
the date of such Credit Extension both before and after giving effect to such
proposed Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date, and except that for purposes of this
SECTION 5.02, the representations and warranties contained in clauses (i) and
(ii) of subsection (a) of SECTION 6.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
SECTION 7.01.
(b) No Default or Event of Default shall exist, or would result from
such proposed Credit Extension.
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(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) The Administrative Agent shall have received each additional
document, instrument, legal opinion or other item reasonably requested by it.
Each Request for Credit Extension submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in SECTIONS
5.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Holdings and the Borrower represent and warrant to the Administrative Agent
and the Lenders that:
6.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Holdings and each of its Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized or formed, validly existing and, and
except as set forth on SCHEDULE 6.01, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations, consents
and approvals to (i) own its assets and carry on its business as now being
conducted and hereafter proposed to be conducted and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, except,
in each case, where the failure to have all such licenses, authorizations,
consents and approvals could not reasonably be expected to have a Material
Adverse Effect, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license, except where the failure to qualify, be licensed and be in good
standing could not reasonably be expected to have a Material Adverse Effect and
(d) is in compliance with all Laws, except where the failure to comply could not
reasonably be expected to have a Material Adverse Effect. The jurisdictions in
which Holdings and each of its Subsidiaries is organized and qualified to do
business as of the Closing Date are described on SCHEDULE 6.01.
6.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, (i) any Contractual Obligation to which such Person is a party
or (ii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject; or (c)
violate any Law (except in the case of clauses (b) or (c) where such conflict,
breach, contravention or violation could not reasonably be expected to have a
Material Adverse Effect).
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6.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
(a) No approval, consent, exemption, authorization, or other action by,
or notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document except (i) as may be required by Laws affecting the offering and sale
of securities generally, (ii) filings with the United States Copyright Office
and/or the United States Patent and Trademark Office, (iii) filings under the
UCC and/or the Assignment of Claims Act and (iv) those notices, consents and
authorizations which have been obtained prior to the Closing Date.
(b) Holdings and each of its Subsidiaries (i) has all Governmental
Approvals required by any applicable Law for it to conduct its business, each of
which is in full force and effect, is final and not subject to review on appeal
and is not the subject of any pending or, to the best of its knowledge,
threatened attack by direct or collateral proceeding, (ii) is in compliance with
each Governmental Approval applicable to it and in compliance with all other
applicable Laws relating to it or any of its respective properties and (iii) has
timely filed all material reports, documents and other materials required to be
filed by it under all applicable Laws with any Governmental Authority and has
retained all material records and documents required to be retained by it under
applicable Law (except, in each case, where the failure to do so could not
reasonably be expected to have a Material Adverse Effect).
6.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto. This Agreement constitutes, and each other Loan Document when
so delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws which affect the enforcement of creditors' rights in general
and the availability of equitable remedies.
6.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) (i) The Audited Financial Statements (A) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, (B) fairly present in all material
respects the financial condition of Holdings and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (C) show all indebtedness and
other liabilities, direct or contingent, of Holdings and its Subsidiaries as of
the date thereof, including, without limitation, liabilities for taxes,
commitments and Indebtedness, in each case, with respect to this clause (C), to
the extent required to be disclosed under GAAP.
(ii) The Unaudited Quarterly Financial Statements and the
Unaudited Monthly Financial Statements (A) were prepared in accordance with GAAP
consistently applied
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throughout the periods covered thereby, except as otherwise expressly noted
therein, (B) fairly present in all material respects the financial condition of
Holdings and its Subsidiaries as of the dates thereof and their results of
operations for the periods covered thereby in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise expressly
noted therein, and (C) show all indebtedness and other liabilities, direct or
contingent, of Holdings and its Subsidiaries as of the dates thereof, including,
without limitation, liabilities for taxes, commitments and Indebtedness, in each
case, with respect to this clause (C), to the extent required to be disclosed
under GAAP, subject, in the case of clauses (A) and (B), to the absence of
footnotes and to normal year-end audit adjustments.
(b) The Pro Forma Financial Statements (A) were prepared in accordance
with GAAP, (B) fairly present in all material respects the PRO FORMA financial
condition of Holdings and its Subsidiaries as of the Closing Date, and (C) show
all PRO FORMA indebtedness and other liabilities, direct or contingent, of
Holdings and its Subsidiaries as of the Closing Date, including, without
limitation, liabilities for taxes, commitments and Indebtedness, in each case,
with respect to this clause (C), to the extent to be disclosed under GAAP,
subject, in the case of clauses (A) and (B), to the absence of footnotes and to
normal year-end audit adjustments.
(c) SCHEDULE 6.05 sets forth all material Indebtedness of Holdings and
its Subsidiaries as of the Closing Date.
(d) Since December 31, 2002, there has been no event or circumstance,
either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
(e) As of the Closing Date (after giving effect to the Senior Unsecured
Note Issuance and the other transactions contemplated by this Agreement) and
after giving effect to each Credit Extension made hereunder, Holdings and each
of its Subsidiaries will be Solvent.
6.06 LITIGATION.
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of any Loan Party after due and diligent investigation, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Holdings or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby or (b) either individually or in the aggregate, if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
6.07 NO DEFAULT.
Neither Holdings nor any of its Subsidiaries is in default under or with
respect to any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default
or an Event of Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other
Loan Document.
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6.08 OWNERSHIP OF PROPERTY; LIENS.
Holdings and each of its Subsidiaries has good record and marketable title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, and legal title to all of its
personal property and assets, including, but not limited to, those reflected on
the balance sheets of Holdings and its Subsidiaries delivered pursuant to
SECTION 7.01, except those which have been disposed of by Holdings or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder. The
property of Holdings and its Subsidiaries is subject to no Liens, other than
Liens permitted by SECTION 8.01.
6.09 ENVIRONMENTAL COMPLIANCE.
(a) The properties owned, leased or operated by Holdings and each of its
Subsidiaries now or in the past do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which
(i) constitute or constituted a violation of applicable Environmental Laws or
(ii) could give rise to liability under applicable Environmental Laws, except
where, in the case of clauses (i) or (ii), such violation or liability could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(b) Holdings and each of its Subsidiaries and such properties and all
operations conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
reasonably be expected to interfere with the continued operation of such
properties or impair the fair saleable value thereof, except for any such
noncompliance or contamination that could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
(c) Neither Holdings nor any of its Subsidiaries has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters, Hazardous Materials, or compliance
with Environmental Laws, nor does Holdings or any of its Subsidiaries have
knowledge or reason to believe that any such notice will be received or is being
threatened, except where such violation, alleged violation, non-compliance,
liability or potential liability which is the subject of such notice could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(d) Hazardous Materials have not been transported or disposed of to or
from the properties owned, leased or operated by Holdings and its Subsidiaries
in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability under, Environmental Laws, nor have any
Hazardous Materials been generated, treated, stored or disposed of at, on or
under any of such properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Laws, except where such violation or liability could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
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(e) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which Holdings and its Subsidiaries are or will be named as
a potentially responsible party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to Holdings or any of its Subsidiaries or such properties or such
operations, except where such proceeding, action, decree, order or other
requirement could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; and
(f) There has been no release, or to the best of Holdings' and the
Borrower's knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by Holdings or any of its Subsidiaries, now
or in the past, in violation of or in amounts or in a manner that could
reasonably expected to give rise to liability under Environmental Laws, except
where such violation or liability could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
6.10 INSURANCE.
The properties of Holdings and each of its Subsidiaries are insured with
financially sound and reputable insurance companies which are not Affiliates of
Holdings or the Borrower (unless such insurance is provided on an arms-length
basis), in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Holdings and such Subsidiaries operates.
6.11 TAXES.
Holdings and each of its Subsidiaries have filed all Federal, state and
other material tax returns and reports required to be filed, and have paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. Such tax returns and
reports accurately reflect in all material respects all liability for taxes of
Holdings and its Subsidiaries for the periods covered thereby. There is no
ongoing audit or examination or, to the knowledge of the Borrower, other
investigation by any Governmental Authority of the tax liability of Holdings and
its Subsidiaries and no Governmental Authority has asserted any Lien or other
claim against any Holdings or any of its Subsidiaries with respect to unpaid
taxes which has not been discharged or resolved, in each case, except as could
not reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of Holdings and its Subsidiaries in respect
of federal, state, local and other taxes for the Fiscal Year 2002 and Fiscal
Years occurring thereafter, are in the judgment of Holdings and the Borrower
adequate, and Holdings and the Borrower do not anticipate any material amount of
additional taxes or assessments for any of such prior years. There is no
proposed tax assessment against Holdings or any of its Subsidiaries that would,
if made, reasonably be expected to have a Material Adverse Effect.
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6.12 ERISA COMPLIANCE.
(a) As of the Closing Date, neither the Borrower nor any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Pension Plans or
Multiemployer Plans other than those identified on SCHEDULE 6.12(a).
(b) Except as could not reasonably be expected to have a Material
Adverse Effect, (i) each Plan is in compliance with the applicable provisions of
ERISA, the Code and other Federal or state Laws and (ii) each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. Furthermore, the Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(c) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(d) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; (v) except as disclosed
on SCHEDULE 6.12(d), neither the Borrower nor any ERISA Affiliate has engaged in
a transaction that could be subject to Sections 4069 or 4212(c) of ERISA; and
(vi) except as could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any ERISA Affiliate has engaged in a nonexempt
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code.
6.13 SUBSIDIARIES.
As of the Closing Date, Holdings has no Subsidiaries other than those
specifically disclosed in Part (a) of SCHEDULE 6.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of SCHEDULE 6.13. As of the Closing Date, the
capitalization of Holdings and its Subsidiaries consists of the number of
shares, authorized, issued and outstanding, of such classes and series, with or
without par value, described on SCHEDULE 6.13. Except as described on SCHEDULE
6.13, as of the Closing Date, all outstanding shares have been duly authorized
and validly issued and are fully paid and nonassessable and not subject to any
preemptive or similar rights. The shareholders of the
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Subsidiaries of Holdings and the number of shares owned by each as of the
Closing Date are described on SCHEDULE 6.13. As of the Closing Date, there are
no outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of Holdings or its Subsidiaries, except as described
on SCHEDULE 6.13.
6.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) Neither Holdings nor any of its Subsidiaries is engaged, principally
or as one of its important activities, in the business of "purchasing" or
"carrying" any "margin stock" (as each such term is defined or used in
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock or for
any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X issued by the FRB.
(b) Neither Holdings nor any of its Subsidiaries or any Person
Controlling Holdings or any of its Subsidiaries (i) is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940, as amended, and the Borrower is not an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company," as
such terms are defined under the Investment Company Act of 1940, as amended.
6.15 DISCLOSURE.
The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which Holdings or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No financial statement, material report, material
certificate or other material information furnished (whether in writing or
orally) by or on behalf of Holdings or any of its Subsidiaries to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that, with respect to projected financial
information, pro forma financial information, estimated financial information
and other projected or estimated information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
6.16 COMPLIANCE WITH LAWS.
Holdings and each of its Subsidiaries is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its
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properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.17 INTELLECTUAL PROPERTY; LICENSES, ETC.
Holdings and each of its Subsidiaries own, or possess the right to use, all
of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, "IP RIGHTS") that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of any other
Person, except as could not reasonably be expected to have a Material Adverse
Effect. To the best knowledge of Holdings and the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by Holdings or any of its
Subsidiaries infringes in any material respect upon any IP Rights held by any
other Person. Except as specifically disclosed in SCHEDULE 6.17, to the best
knowledge of the Holdings and the Borrower (except in each case with respect to
the following clauses (i) and (ii) as could not reasonably be expected to have a
Material Adverse Effect): (i) no event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation or termination of
any material IP Rights, and (ii) neither Holdings nor any of its Subsidiaries is
liable to any Person for infringement under applicable Law with respect to any
such IP Rights as a result of its business operations.
6.18 EMPLOYEE RELATIONS.
Holdings and each of its Subsidiaries has not had a material level of
employee attrition in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees except as set forth on SCHEDULE 6.18. Holdings
and the Borrower know of no pending, threatened or contemplated strikes, work
stoppage or other collective labor disputes involving its respective employees
or those of its respective Subsidiaries that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
6.19 MATERIAL GOVERNMENT CONTRACTS.
SCHEDULE 6.19 sets forth a complete and accurate list of all Material
Government Contracts of Holdings and its Subsidiaries in effect as of the
Closing Date (except for classified Material Government Contracts which may not
be disclosed to third parties pursuant to the express written terms thereof).
Other than as set forth in SCHEDULE 6.19, each such Material Government Contract
in existence on the Closing Date is, and after giving effect to the consummation
of the transactions contemplated by the Loan Documents will be in full force and
effect as of the Closing Date in accordance with the terms thereof. Holdings and
its Subsidiaries have made available for review by the Administrative Agent a
true and complete copy of each Material Government Contract required to be
listed on SCHEDULE 6.19 (except for classified Material Government Contracts
which may not be disclosed to third parties pursuant to the express written
terms thereof). As of the Closing Date, neither Holdings nor any of its
Subsidiaries (nor, to the knowledge of Holdings and the Borrower, any other
party thereto) is in
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breach of or in default under any Material Government Contract, except where
such breach or default could not reasonably be expected to have a Material
Adverse Effect.
6.20 BURDENSOME PROVISIONS.
Neither Holdings nor any of its Subsidiaries is a party to any indenture,
agreement, lease or other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or applicable Law which is so unusual or
burdensome as in the foreseeable future could be reasonably expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries presently
anticipates that future expenditures needed to meet the provisions of any
statutes, orders, rules or regulations of a Governmental Authority will be so
burdensome as to have a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries is party to any agreement or instrument or otherwise subject to any
restriction or encumbrance that restricts or limits its ability to make dividend
payments or other distributions in respect of its capital stock to Holdings, the
Borrower or any Subsidiary or to transfer any of its assets or properties to
Holdings, the Borrower or any other Subsidiary in each case other than as
permitted by SECTION 8.11.
6.21 TAX SHELTER REGULATIONS.
The Borrower does not intend to treat the Loans and/or Letters of Credit as
being a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4). In the event the Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Administrative
Agent thereof. If the Borrower so notifies the Administrative Agent, the
Borrower acknowledges that one or more of the Lenders may treat its Loans and/or
its interest in Swing Line Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
6.22 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment hereunder,
any Loan or other Obligation (other than contingent indemnity obligations)
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, Holdings and the Borrower shall, and shall cause each of
their Subsidiaries to:
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7.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent (for further delivery by the
Administrative Agent to each Lender), in form and detail reasonably satisfactory
to the Administrative Agent and the Required Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, but in any event
within 90 days after the end of each Fiscal Year of Holdings, a consolidated
balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal
Year, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available, but in any
event within 45 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of Holdings, a consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such Fiscal Quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
Fiscal Quarter and for the portion of Holdings' Fiscal Year then ended, setting
forth in each case in comparative form the figures for the corresponding Fiscal
Quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, all in reasonable detail and certified by a Responsible
Officer of Holdings as fairly presenting in all material respects the financial
condition, results of operations, shareholders' equity and cash flows of
Holdings and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.
(c) ANNUAL BUSINESS PLAN AND FINANCIAL PROJECTIONS. Beginning for Fiscal
Year 2004, as soon as practicable and in any event within thirty (30) days after
the beginning of each Fiscal Year, a business plan of Holdings and its
Subsidiaries for the ensuing twelve (12) calendar months, such plan to be
prepared in accordance with GAAP and to include, on a quarterly basis, the
following: a quarterly operating and capital budget, a projected income
statement, statement of cash flows and balance sheet and a report containing
management's discussion and analysis of such projections, accompanied by a
certificate from the chief financial officer of Holdings to the effect that, to
the best of such officer's knowledge, such projections are good faith estimates
(utilizing reasonable assumptions made in light of then existing circumstances)
of the financial condition and operations of Holdings and its Subsidiaries for
such period (it being understood that projections are subject to inherent
uncertainties).
As to any information referred to in this SECTION 7.01 and contained in
materials furnished pursuant to SECTION 7.02(f), the Borrower shall not be
separately required to furnish such information under clause (a) or (b) above,
but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in subsections (a) and (b)
above at the times specified therein.
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7.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent (for further delivery by the
Administrative Agent to each Lender), in form and detail reasonably satisfactory
to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred
to in SECTION 7.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default existing
under SECTION 8.18 of this Agreement or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred
to in SECTION 7.01(a) and SECTION 7.01(b), a duly completed Compliance
Certificate signed by a Responsible Officer of each of Holdings and the
Borrower;
(c) as soon as available, but in any event within twenty (20) days after
the end of each calendar month (and, upon the occurrence and during the
continuation of a Default, on a more frequent basis if requested by the
Administrative Agent), a duly completed Borrowing Base Certificate signed by a
Responsible Officer of each of Holdings and the Borrower as of the last Business
Day of such month;
(d) as soon as available, but in any event within twenty (20) days after
the end of each calendar month (and, upon the occurrence and during the
continuation of a Default, on a more frequent basis if requested by the
Administrative Agent), an accounts receivable aging report listing all Accounts
of the Borrower and its Subsidiaries as of the last Business Day of such month
which report shall include the amount and age of each Account and such other
information as the Administrative Agent may reasonably require, all in form and
substance reasonably satisfactory to the Administrative Agent. Within thirty
(30) days upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of a Default or Event of Default, the
Borrower shall provide the name and mailing address of each Account Debtor to
the Administrative Agent;
(e) promptly upon the receipt thereof, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of Holdings by
independent accountants in connection with the accounts or books of Holdings or
any Subsidiary, or any audit of any of them;
(f) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of Holdings generally, and copies of all annual, regular, periodic
and special reports and registration statements which Holdings may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(g) promptly after the Borrower has notified the Administrative Agent of
any intention by the Borrower to treat the Loans and/or Letters of Credit as
being a "reportable
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transaction" (within the meaning of Treasury Regulation Section 1.6011-4), a
duly completed copy of IRS Form 8886 or any successor form;
(h) promptly, such additional information regarding the business,
financial or corporate affairs of Holdings or any Subsidiary, or compliance with
the terms of the Loan Documents, as the Administrative Agent may from time to
time reasonably request; and
(i) within twenty (20) days after the end of each Fiscal Quarter (and,
upon the occurrence and during the continuation of a Default, on a more frequent
basis if requested by the Administrative Agent), a list of (A) all Material
Government Contracts which have (i) been completed or have lapsed, expired or
terminated or (ii) been entered into (except for classified Material Government
Contracts which may not be disclosed to third parties pursuant to the express
written terms thereof) or (B) all Federal Governmental Prime Contracts, and
where applicable delivery and task orders under any Federal Governmental Prime
Contract, which have become Material Government Contracts (except for classified
Material Government Contracts which may not be disclosed to third parties
pursuant to the express written terms thereof), in each case, since the most
recent list provided by the Borrower and signed by a Responsible Officer of the
Borrower.
Documents required to be delivered pursuant to SECTION 7.01(a) or (b) or
SECTION 7.02(c), (d) or (f) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
Holdings posts such documents, or provides a link thereto on Holdings' website
on the Internet at the website address listed on SCHEDULE 12.02; or (ii) on
which such documents are posted on Holdings' behalf on another relevant website,
if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent) or attached to an email sent to Administrative Agent's email address;
PROVIDED that: (i) Holdings shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests Holdings to deliver such paper
copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) Holdings shall notify (which may be
by facsimile or electronic mail) the Administrative Agent and each Lender of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (I.E., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance Holdings and the
Borrower shall be required to provide paper copies of the Compliance
Certificates and Borrowing Base Certificates required by SECTION 7.02(b) and
SECTION 7.02(c) to the Administrative Agent and each of the Lenders. Except for
such Compliance Certificates and Borrowing Base Certificates, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by Holdings and the Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.
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7.03 NOTICES.
Promptly, upon knowledge thereof, notify the Administrative Agent and each
Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including the commencement of, or any
material development in, any litigation or proceeding affecting Holdings or any
of its Subsidiaries, including pursuant to any applicable Environmental Laws
which if determined adversely could reasonably be expected to result in a
Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by Holdings or any of its Subsidiaries; and
(f) of any of the events described in SECTION 2.05(d).
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of each of Holdings and the Borrower setting forth details
of the occurrence referred to therein and stating what action Holdings and the
Borrower has taken and proposes to take with respect thereto. The Borrower shall
use reasonable efforts to ensure that each notice pursuant to SECTION 7.03(a)
shall describe with particularity any and all provisions of this Agreement and
any other Loan Document that have been breached.
7.04 PAYMENT OF OBLIGATIONS.
Pay and discharge as the same shall become due and payable, (a) all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by Holdings or such Subsidiary; and
(b) all lawful claims which, if unpaid, would by law become a Lien upon its
property.
7.05 PRESERVATION OF EXISTENCE, ETC.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by SECTION 8.04 or SECTION 8.05;
(b) take all commercially reasonable actions required to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its issued patents and registered trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
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7.06 MAINTENANCE OF PROPERTIES.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and casualty excepted; (b) make all necessary
repairs thereto and renewals and replacements thereof except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect; and
(c) use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 MAINTENANCE OF INSURANCE.
In addition to the specific insurance requirements of the Security
Documents, maintain with financially sound and reputable insurance companies
reasonably acceptable to the Administrative Agent and the Required Lenders not
Affiliates of Holdings or the Borrower (unless such insurance is provided on an
arms-length basis), insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons and
providing for not less than 30 days' prior notice to the Administrative Agent of
termination, lapse or cancellation of such insurance and deliver to the
Administrative Agent upon its request a detailed list of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
7.08 COMPLIANCE WITH LAWS.
Comply in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or
property, (except in such instances in which such requirement of Law or order,
writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted), and maintain in full force and effect all
Governmental Approvals applicable to it or to its business or property, except
where the failure to so comply or maintain such Governmental Approval could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
7.09 ENVIRONMENTAL LAWS
In addition to and without limiting the generality of SECTION 7.08, (a)
comply with, and ensure such compliance by all tenants and subtenants with all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants, if any, obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except where the failure to
do so could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws,
except where the failure to conduct or complete such actions, or comply with
such orders or directions, could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, and (c) defend, indemnify and
hold harmless the Administrative Agent and the
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Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the presence of Hazardous Materials, or the violation of,
noncompliance with or liability under any Environmental Laws applicable to the
operations of Holdings or any such Subsidiary, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor.
7.10 COMPLIANCE WITH ERISA.
In addition to and without limiting the generality of SECTION 7.08, (a)
except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply
with all material applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Plans, (ii) not take
any action or fail to take action the result of which could be a liability to
the PBGC or to a Multiemployer Plan, (iii) not participate in any prohibited
transaction that could result in any civil penalty under ERISA or tax under the
Code and (iv) operate each Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code and (b) furnish to the Administrative
Agent upon the Administrative Agent's request such information about any Plan as
may be reasonably requested by the Administrative Agent.
7.11 COMPLIANCE WITH AGREEMENTS.
Comply in all respects with each term, condition and provision of all
leases, agreements and other instruments entered into in the conduct of its
business including, without limitation, all Material Government Contracts and
any other Contractual Obligation, in each case, the failure to comply with which
could reasonably be expected to have a Material Adverse Effect; PROVIDED, that
Holdings or any such Subsidiary may contest any such lease, agreement or other
instrument in good faith through applicable proceedings so long as adequate
reserves are maintained in accordance with GAAP.
7.12 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of
Holdings or such Subsidiary, as the case may be and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over Holdings or such
Subsidiary, as the case may be, except where the failure to comply could not
reasonably be expected to have a Material Adverse Effect.
7.13 INSPECTION RIGHTS.
Except (a) with respect to information and records which Holdings, the
Borrower and their Subsidiaries may not under applicable Law disseminate or
disclose to the Administrative
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Agent and the Lenders and (b) with respect to non-financial information and
records which Holdings, the Borrower and their Subsidiaries may not disseminate
or disclose (i) due to the express terms of a confidentiality agreement executed
on an arms-length basis with a third party (after taking into account the
confidentiality provisions of this Agreement and the other Loan Documents) or
(ii) the disclosure of which would waive attorney-client privilege or
attorney-work product privilege, permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to Holdings
(including, without limitation, the right to conduct up to two (2) field audits
and examinations of the books, records, accounts, inventory and other assets of
Holdings, the Borrower and their Subsidiaries in any calendar year). So long as
no Default or Event of Default has occurred and is continuing, only the two (2)
semi-annual field audits and examinations referred to above shall be at the
expense of Holdings and the Borrower. Upon the occurrence and during the
continuation of a Default or Event of Default, the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of Holdings and the Borrower at any
time during normal business hours and without advance notice.
7.14 USE OF PROCEEDS.
Use the proceeds of the Credit Extensions (a) for general corporate
purposes, (b) to refinance existing Indebtedness of the Loan Parties, including
Indebtedness outstanding under the Existing Credit Agreement, (c) to finance
future Permitted Acquisitions, (d) to pay transaction costs in connection with
this Agreement and the Senior Unsecured Note Indenture, (e) to pay residual
expenses in connection with the Attempted Spring 2003 IPO and (f) the other
purposes described herein, and not in contravention of any Law or of any Loan
Document.
7.15 ADDITIONAL SUBSIDIARIES.
(a) ADDITIONAL DOMESTIC SUBSIDIARIES. Notify the Administrative Agent at
the time that any Person becomes a Domestic Subsidiary of the Borrower, and
promptly thereafter (and in any event within 30 days), cause such Person to (i)
become a Subsidiary Guarantor by executing and delivering to the Administrative
Agent a counterpart of the Subsidiary Guaranty Agreement or such other document
as the Administrative Agent shall deem appropriate for such purpose, (ii)
deliver to the Administrative Agent a duly executed Joinder Agreement and comply
with the terms of each Security Document, (iii) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of SECTION
5.01(a) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability of
the documentation referred to in clauses (i) and (ii)) and (iv) deliver to the
Administrative Agent such other documents and closing certificates as may be
reasonably requested by the Administrative Agent, all in form, content and scope
reasonably satisfactory to the Administrative Agent.
(b) ADDITIONAL FOREIGN SUBSIDIARIES. Notify the Administrative Agent at
the time that any Person becomes a Foreign Subsidiary of the Borrower, and
promptly thereafter (and in any
75
event within 30 days), cause (i) the applicable Loan Party to deliver to the
Administrative Agent a supplement to the Security Documents pledging sixty-five
percent (65%) of the total outstanding ownership interest or capital stock of
such new Foreign Subsidiary and a consent thereto executed by such new Foreign
Subsidiary (including, without limitation, if applicable, original stock
certificates (or the equivalent thereof pursuant to the Applicable Laws and
practices of any relevant foreign jurisdiction) evidencing the capital stock of
such new Foreign Subsidiary, together with an appropriate undated stock power
for each certificate duly executed in blank by the registered owner thereof),
(ii) such Person to deliver to the Administrative Agent documents of the types
referred to in clauses (iii) and (iv) of SECTION 5.01(a) and favorable opinions
of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clauses (i) and (ii)), and (iii) such Person to deliver to the Administrative
Agent such other documents and closing certificates as may be reasonably
requested by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent; PROVIDED that if any Foreign
Subsidiary Guarantees any Indebtedness of Holdings or any Domestic Subsidiary
thereof (including, without limitation, the Indebtedness evidenced by the Senior
Unsecured Notes), Holdings and its Subsidiaries shall cause such Foreign
Subsidiary to (A) become a Subsidiary Guarantor by executing and delivering to
the Administrative Agent a counterpart of the Subsidiary Guaranty Agreement or
such other document as the Administrative Agent shall deem appropriate for such
purpose, (B) to the extent not already required to be delivered under this
subsection (b), deliver to the Administrative Agent a duly executed Joinder
Agreement and comply with the terms of each Security Document and (C) deliver to
the Administrative Agent such other documents and closing certificates as may be
reasonably requested by the Administrative Agent, all in form, content and scope
reasonably satisfactory to the Administrative Agent
7.16 PROCEEDS OF EQUITY OR INDEBTEDNESS; ESCROW AND INDEMNIFICATION
PAYMENTS.
(a) Within three (3) days after the date of receipt by Holdings of the
Net Equity Proceeds from the offering of equity securities of Holdings or the
issuance of Indebtedness by Holdings, Holdings shall promptly contribute such
Net Equity Proceeds to the Borrower as equity (unless Holdings is permitted to
use such proceeds to fund transactions permitted pursuant to this Agreement
(including SECTIONS 8.06(c), 8.06(d), 8.10, 8.15(b)(ii) and 8.15(b)(iii)).
(b) Within three (3) days after the date of receipt by Holdings of (i)
any indemnification payment made pursuant to the Acquisition Agreement and the
other Acquisition Documents or (ii) any payment or distribution under the Escrow
Agreement (as defined in the Acquisition Agreement), Holdings shall promptly
contribute any such payment or distribution to the Borrower as equity.
7.17 FURTHER ASSURANCES.
Make, execute and deliver all such additional and further acts, things,
deeds and instruments as the Administrative Agent or the Required Lenders
(through the Administrative Agent) may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
assure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes, the Letters of Credit and the other Loan Documents.
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ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Credit Commitment hereunder,
any Loan or other Obligation (other than contingent indemnity obligations)
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, Holdings and the Borrower shall not, nor permit any of their
Subsidiaries to:
8.01 LIENS.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on SCHEDULE 8.01 and
any renewals or extensions thereof, PROVIDED that the property covered thereby
is not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by SECTION 8.03(d);
(c) Liens for taxes, assessments, charges or other government levies not
yet due and payable or which are being contested in good faith and by
appropriate proceedings diligently conducted, and for which adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) pledges or deposits to secure the performance of bids, tenders,
trade contracts, liability to insurance carriers (including self-insurance) and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds, contractual
or warranty obligations and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under SECTION 10.01(h) or securing appeal or other surety
bonds related to such judgments;
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(i) Liens securing Indebtedness permitted under SECTION 8.03(g);
PROVIDED that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and all improvements and accessions
in respect thereof and assets affixed or appurtenant thereto and (ii) the
principal amount of Indebtedness secured thereby does not exceed the cost or
fair market value, whichever is lower, of the property being acquired on the
date of acquisition;
(j) any interest or title of a lessor, sublicensor, or licensor under
any lease or license entered into in the ordinary course of business and
covering only the assets so leased or licensed;
(k) licenses, sublicenses, leases or subleases granted to third Persons
in the ordinary course of business not interfering in any material respect with
the business of the Holdings or its Subsidiaries;
(l) (i) contractual or statutory Liens of landlords, to the extent
relating to the property and assets relating to any lease agreements with such
landlord, (ii) contractual Liens of suppliers (including sellers of goods), to
the extent limited to property or assets (excluding Accounts and payment
intangibles) relating to such contract, and (iii) contractual or statutory liens
of governmental customers, to the extent limited to property or assets
(excluding Accounts and payment intangibles) relating to such contract;
(m) rights of setoff or bankers' liens upon deposits of cash in favor of
banks or other financial institutions; PROVIDED such bank or other financial
institution has executed and delivered a deposit account control agreement with
respect to such deposits pursuant to the Collateral Agreement;
(n) Liens arising from precautionary UCC financing statements regarding
operating leases or consignments;
(o) Liens on property or assets (excluding Accounts and payment
intangibles) of the Borrower and its Subsidiaries acquired pursuant to a
Permitted Acquisition, or on property or assets (excluding Accounts and payment
intangibles) of any Subsidiary of the Borrower which are in existence at the
time that such Subsidiary of the Borrower is acquired pursuant to a Permitted
Acquisition (PROVIDED that such Liens (i) are not incurred in connection with,
or in anticipation of, such Permitted Acquisition, (ii) are not "blanket" or all
asset Liens, and (iii) do not attach to any other property or assets of the
Borrower and its Subsidiaries other than improvements and accessions in respect
thereof and assets affixed or appurtenant thereto);
(p) Liens in favor of governmental bodies to secure advance or progress
payments pursuant to any contract or statute;
(q) Liens on the assets of a Foreign Subsidiary securing Indebtedness of
such Foreign Subsidiary; and
(r) customary restrictions imposed on the transfer of copyrighted or
patented materials or other intellectual property and customary provisions in
agreements that restrict the assignment of such agreements or any rights
thereunder.
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8.02 INVESTMENTS.
Make any Investments, except:
(a) Investments held by the Holdings, Borrower and its Subsidiaries in
the form of cash equivalents or short-term marketable securities;
(b) advances to officers, directors and employees of the Borrower and
its Subsidiaries in an aggregate amount not to exceed $500,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of Holdings in the Borrower, Investments of the Borrower
in any Subsidiary Guarantor and Investments of any Subsidiary in a Subsidiary
Guarantor;
(d) Investments by the Borrower and its Subsidiaries consisting of
extensions of credit in the nature of accounts receivable or notes receivable
arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(e) Guarantees by the Borrower and its Subsidiaries permitted by SECTION
8.03;
(f) Investments by the Borrower or any Subsidiary thereof in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person (each, a "PERMITTED ACQUISITION"); PROVIDED that:
(i) the Person to be acquired shall be a going concern, engaged
in a business, or the assets to be acquired shall be used in a business
which is similar or complimentary to the line of business of the Borrower
and its Subsidiaries as required pursuant to SECTION 8.08;
(ii) the Borrower or such Subsidiary (unless the Person to be
acquired complies with SECTION 7.15), as applicable, shall be the surviving
Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such
proposed acquisition to the Administrative Agent (for delivery by the
Administrative Agent to the Lenders) and the Lenders, which notice shall
include the proposed closing date of such proposed acquisition, not less
than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative
Agent copies of (A) the Permitted Acquisition Documents, which shall be in
form and substance reasonably satisfactory to the Administrative Agent and
shall be delivered to the Administrative Agent promptly upon the
finalization thereof, and (B) the Permitted Acquisition Diligence
Information, which shall be in form and substance reasonably
79
satisfactory to the Administrative Agent, not less than ten (10) calendar
days prior to the proposed closing date of such proposed acquisition;
(v) the Borrower shall have certified on or before the closing
date of such proposed acquisition, in writing and in a form reasonably
acceptable to the Administrative Agent and the Lenders, that such proposed
acquisition has been approved by the board of directors or equivalent
governing body of the Person to be acquired;
(v) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed
acquisition;
(vi) the Borrower shall comply with SECTION 7.15;
(vii) the Borrower shall have delivered to the Administrative
Agent (for delivery by the Administrative Agent to the Lenders) and the
Lenders a Compliance Certificate dated as of the closing date of such
proposed acquisition demonstrating, in form and substance reasonably
satisfactory thereto, PRO FORMA compliance with each covenant contained in
SECTION 8.18 and SECTION 8.19 (both before and after giving effect to such
proposed acquisition);
(viii) the Borrower shall have at least $5,000,000 in availability
under the Borrowing Limit after giving effect to such proposed acquisition;
(ix) the Person to be acquired is not subject to material pending
litigation which could reasonably be expected to have a Material Adverse
Effect; and
(x) the Borrower shall have obtained the prior written consent
of the Administrative Agent and the Required Lenders prior to the
consummation of such proposed acquisition if (A) prior to the closing and
funding of an IPO, (1) the aggregate purchase price of such acquisition or
series of related acquisitions (including, without limitation, all cash
payments, Indebtedness and other obligations assumed, earn out payments
(valued at an amount to be agreed upon between the Borrower and the
Administrative Agent), seller financing or deferred payments, but excluding
working capital adjustments in an aggregate amount not to exceed ten
percent (10%) of the aggregate purchase price of such acquisition) exceeds
$10,000,000 or (2) the aggregate purchase price of all acquisitions
(including, without limitation, all cash payments, Indebtedness and other
obligations assumed, earn out payments (valued at an amount to be agreed
upon between the Borrower and the Administrative Agent), seller financing
or deferred payments, but excluding working capital adjustments in an
aggregate amount not to exceed ten percent (10%) of the aggregate purchase
price of such acquisition) consummated during the term of this Agreement
(including, without limitation, such proposed acquisition) exceeds
$30,000,000 and (B) after the closing and funding of an IPO, (1) the
aggregate purchase price of such acquisition or series of related
acquisitions (including, without limitation, all cash payments,
Indebtedness and other obligations assumed, earn out payments (valued at an
amount to be agreed upon between the Borrower and the Administrative
Agent), seller financing or deferred payments, but excluding working
capital adjustments in an aggregate amount not to exceed ten percent
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(10%) of the aggregate purchase price of such acquisition) exceeds
$15,000,000 or (2) the aggregate purchase price of all acquisitions
(including, without limitation, all cash payments, Indebtedness and other
obligations assumed, earn out payments (valued at an amount to be agreed
upon between the Borrower and the Administrative Agent), seller financing
or deferred payments, but excluding working capital adjustments in an
aggregate amount not to exceed ten percent (10%) of the aggregate purchase
price of such acquisition) consummated during the term of this Agreement
(including, without limitation, such proposed acquisition and all
acquisitions consummated prior to the closing and funding of an IPO)
exceeds $40,000,000;
(g) loans by the Borrower and its Subsidiaries to officers, directors
and employees of Borrower and its Subsidiaries to facilitate their purchase of
stock or options in Holdings;
(h) intercompany loans by the Borrower and its Subsidiaries to Holdings
to the extent such amount could also be made as a distribution permitted under
SECTION 8.06(c);
(i) intercompany loans made by the Borrower to Subsidiary Guarantors,
among Subsidiary Guarantors or to the Borrower from its Subsidiaries;
(j) Investments by the Borrower and its Subsidiaries received in
connection with the bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with, customers and suppliers;
(k) Investments arising as a result of the Borrower or its Subsidiaries
entering into Swap Agreements permitted pursuant to SECTION 8.03(f);
(l) Investments by the Borrower and its Subsidiaries constituting
endorsements for collection or deposit in the ordinary course of business;
(m) Investments by the Borrower and its Subsidiaries in deposit accounts
opened in the ordinary course of business; PROVIDED that the applicable
depository bank or other financial institution has executed and delivered a
deposit account control agreement with respect to such deposit accounts pursuant
to the Collateral Agreement;
(n) Investments by the Borrower and its Subsidiaries consisting of
accounts receivable, payments or other credits and other Investments and
extensions of credit arising in the ordinary course of business and consistent
with past practices (including, and without limitation, endorsement of
negotiable instruments);
(o) Investments by the Borrower and its Subsidiaries in the form of
promissory notes acquired in connection with Dispositions permitted pursuant to
SECTION 8.05 (PROVIDED that (i) the aggregate outstanding amount of all such
Investments shall not exceed $1,000,000 at any one time and (ii) any such
Investment shall be due and payable within twenty-four (24) months of the date
of execution of such Investment);
(p) any acquisition of assets to the extent acquired or made in
exchange, directly or indirectly, for the issuance of equity interests of
Holdings; PROVIDED that (i) the aggregate purchase price of all such
acquisitions to the extent made in exchange, directly or indirectly, for
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the issuance of equity interests of Holdings shall not exceed $10,000,000 during
any Fiscal Year and (ii) each of the conditions set forth in SECTION 8.02(f)(i)
through 8.02(f)(ix) shall have been satisfied with respect to such acquisition;
and
(q) other Investments by the Borrower and its Subsidiaries not exceeding
$2,000,000 in the aggregate in any Fiscal Year of the Borrower.
8.03 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) (i) Indebtedness under the Senior Unsecured Notes in an
aggregate principal amount not to exceed $125,000,000;
(ii) Indebtedness up to $25,000,000 principal amount of
Indebtedness issued on terms substantially similar to the Senior Unsecured Notes
except that the principal amount, final maturity date (which shall be no earlier
than six months after the Revolving Credit Maturity Date), interest rate,
redemption premiums and other pricing terms may be different; PROVIDED that (A)
no Default or Event of Default exists and is continuing at the time of the
incurrence of such Indebtedness or would be caused thereby and (B) the covenants
and events of default of such additional senior unsecured Indebtedness are not
substantially more restrictive than those contained in the Senior Unsecured Note
Agreement, and
(iii) Indebtedness of the Borrower used to refinance, refund,
renew or extend either of the above in clause (i) or (ii) or in this clause
(iii); PROVIDED that (A) no Default or Event of Default exists and is continuing
at the time of such refinancing, refunding, renewal or extension above or would
be caused thereby, (B) the terms and conditions of the replacement notes and the
documents evidencing such refinancing, refunding, renewal or extension shall be
in form and substance no more restrictive than this Agreement as reasonably
agreed by the Administrative Agent and (C) the principal amount of the
replacement notes shall not exceed the principal amount of the above on the date
of such refinancing plus an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection
with such refinancing and by an amount equal to any existing commitments
unutilized thereunder;
(c) (i) Subordinated Indebtedness of Holdings or the Borrower in an
aggregate principal amount not to exceed $10,000,000 so long as (A) such
Subordinated Indebtedness shall be on terms and conditions (including, without
limitation, subordination terms) as are reasonably satisfactory to the Required
Lenders and (B) both before and after the issuance of such Subordinated
Indebtedness (1) no Default or Event of Default has occurred and is continuing
and (2) Holdings and its Subsidiaries are in pro forma compliance with each of
the covenants set forth in SECTIONS 8.18 (which, in the case of clause (2)
above, shall be evidenced by an officer's compliance certificate, in form and
substance reasonably satisfactory to the Administrative Agent, delivered to the
Administrative Agent prior to the issuance of such Subordinated Indebtedness),
and (ii) any refinancing, refundings, renewals and extensions thereof so long as
(A) the principal amount of such Subordinated Indebtedness is not increased at
the time of such
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refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder and (B) such refinancing,
refunding, renewal or extension shall be on terms and conditions (including,
without limitation, subordination terms) as are reasonably satisfactory to the
Required Lenders;
(d) Indebtedness of the Borrower and its Subsidiaries outstanding on the
date hereof and not otherwise permitted under this SECTION 8.03 and listed on
SCHEDULE 8.03 and any refinancings, refundings, renewals or extensions thereof;
PROVIDED that (i) the principal amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder and (ii) any
refinancing, refunding, renewal or extension of any Subordinated Indebtedness
shall be (A) on subordination terms at least as favorable to the Lenders, (B) no
more restrictive on the Borrower and its Subsidiaries than the Subordinated
Indebtedness being refinanced, refunded, renewed or extended and (C) in an
amount not less than the amount outstanding at the time of such refinancing,
refunding, renewal or extension;
(e) Guarantees by Holdings, the Borrower and its Subsidiaries in respect
of Indebtedness otherwise permitted hereunder of the Borrower and its
Subsidiaries or in respect of ordinary course obligations (other than
Indebtedness) incurred in the ordinary course of business;
(f) obligations (contingent or otherwise) of the Borrower and its
Subsidiaries existing or arising under any Swap Contract; PROVIDED that (i) such
obligations are (or were) entered into by such Person pursuant to this Agreement
or in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or taking
a "market view;" and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;
(g) Indebtedness of the Borrower and its Subsidiaries in respect of
capital leases and purchase money obligations for fixed or Capital Assets within
the limitations set forth in SECTION 8.01(i) (i) which is outstanding on the
date hereof and listed on SCHEDULE 8.03 and any refinancings, refundings,
renewals or extensions thereof or (ii) which is incurred after the date hereof
(other than as contemplated in clause (i)); PROVIDED, HOWEVER, that the
aggregate principal amount of all such Indebtedness which is incurred pursuant
to this clause (ii) shall not at any one time outstanding exceed $15,000,000;
(h) Indebtedness of the Borrower and its Subsidiaries in the form of
intercompany loans permitted in SECTION 8.02(h) and (i);
(i) Indebtedness consisting of promissory notes issued by Holdings and
its Subsidiaries to current or former officers, directors and employees or their
spouses or estates of Holdings or its Subsidiaries to purchase or redeem capital
stock or options of Holdings; PROVIDED
83
that any such promissory note is subordinated to the Obligations under this
Agreement on terms and conditions reasonably acceptable to the Administrative
Agent;
(j) Indebtedness acquired or assumed by Borrower and its Subsidiaries in
connection with any Permitted Acquisition;
(k) Indebtedness of the Borrower and its Subsidiaries under performance
bonds, surety bonds, statutory obligations or appeal bonds or with respect to
workers' compensation claims or other bonds permitted under SECTION 8.01(e) or
SECTION 8.01(f);
(l) the accrual of interest, the accretion or amortization of original
issue discount or the payment of interest on any Indebtedness of the Borrower
and its Subsidiaries in the form of additional Indebtedness with the same terms;
(m) Indebtedness of Holdings and its Subsidiaries that may be deemed to
exist under the Acquisition Agreement as a result of Holdings' obligation to pay
working capital adjustments thereunder;
(n) Indebtedness incurred by Holdings and its Subsidiaries arising from
agreements providing for indemnification, escrows, earn-outs, adjustment of
purchase price or similar obligations, or from guarantees or letters of credit,
surety bonds or performance bonds securing the performance of Holdings and its
Subsidiaries pursuant to agreements in connection with acquisitions or
dispositions of any business, assets or Subsidiary, in each case solely to the
extent permitted hereunder;
(o) unsecured Indebtedness incurred in the ordinary course of business
to finance insurance premiums, in an aggregate amount not to exceed $1,500,000
outstanding at any one time; and
(p) Indebtedness of any Foreign Subsidiary to fund non-U.S. operations
in an aggregate principal amount not to exceed $2,000,000 outstanding at any one
time; PROVIDED that such Indebtedness shall be non-recourse to Holdings, the
Borrower and their Domestic Subsidiaries;
(q) unsecured Indebtedness of the Borrower and its Subsidiaries in an
aggregate principal amount not to exceed $500,000 outstanding at any one time.
8.04 FUNDAMENTAL CHANGES.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:
(a) any Subsidiary of the Borrower may merge with (i) the Borrower
(PROVIDED that the Borrower shall be the continuing or surviving Person), or
(ii) any one or more other Subsidiaries of the Borrower (PROVIDED that when any
Subsidiary Guarantor is merging with
84
another Subsidiary of the Borrower, the Subsidiary Guarantor shall be the
continuing or surviving Person unless such other Subsidiary becomes a Subsidiary
Guarantor);
(b) any Subsidiary of the Borrower may Dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) to the Borrower or
to another Subsidiary of the Borrower; PROVIDED that if the transferor in such a
transaction is a Subsidiary Guarantor, then the transferee must either be the
Borrower or a Subsidiary Guarantor which has satisfied all relevant requirements
of SECTION 7.15;
(c) mergers or consolidations of Subsidiaries of the Borrower in
connection with Permitted Acquisitions; and
(d) Subsidiaries of the Borrower may engage in transactions permitted
pursuant to Section 8.05.
8.05 DISPOSITIONS.
Make any Disposition or enter into any agreement to make any Disposition,
except:
(a) Dispositions by the Borrower and its Subsidiaries of damaged,
obsolete, unusable or worn out property, whether now owned or hereafter
acquired, or surplus equipment acquired in connection with the Acquisition,
which such surplus equipment is no longer necessary to the conduct of the
operations of the Borrower and its Subsidiaries as a result of the consolidation
of operations following the Acquisition, in each case, in the ordinary course of
business;
(b) Dispositions by the Borrower and its Subsidiaries of (i) inventory
in the ordinary course of business and (ii) equipment procured on behalf of a
customer in the ordinary course of business and pursuant to a (A) purchase
order, (B) written contract or (C) other express agreement;
(c) Dispositions by the Borrower and its Subsidiaries of equipment or
real property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the proceeds
of such Disposition are reasonably promptly applied to the purchase price of
such replacement property within one hundred and eighty (180) days after receipt
thereof, or have been committed to be reinvested within such one hundred eighty
(180) day period and are thereafter actually reinvested within two hundred
seventy (270) days after the receipt thereof;
(d) Dispositions by any Subsidiary of the Borrower of property to the
Borrower or to any other Subsidiary of the Borrower which has satisfied any
relevant requirements of SECTION 7.15; PROVIDED that if the transferor of such
property is a Guarantor, the transferee thereof must either be the Borrower or a
Subsidiary Guarantor;
(e) Dispositions by the Borrower and its Subsidiaries permitted by
SECTION 8.04;
(f) licenses of IP Rights by the Borrower and its Subsidiaries in the
ordinary course of business;
85
(g) Dispositions by the Borrower and its Subsidiaries not to exceed
$5,000,000 in the aggregate during the term of this Agreement;
(h) sales or discounts of receivables by the Borrower and its
Subsidiaries in the ordinary course of business;
(i) the lease or license of real or personal property by the Borrower
and its Subsidiaries in the ordinary course of business;
(j) Dispositions by the Borrower and its Subsidiaries consisting of
leases and subleases of real property solely to the extent that such real
property is not necessary for the normal conduct of operations of the Borrower
and its Subsidiaries; and
(k) Dispositions by the Borrower or any Subsidiary thereof, of assets
acquired in connection with any Permitted Acquisition that the Borrower or such
Subsidiary intended to sell at the time of such Permitted Acquisition; PROVIDED
(i) such assets were identified in writing to the Administrative Agent at the
time of such Permitted Acquisition and (ii) the aggregate fair market value of
such assets does NOT exceed fifteen percent (15%) of the aggregate purchase
price paid in connection with such Permitted Acquisition (including, without
limitation, all cash payments, Indebtedness and other obligations assumed,
earn-out payments (valued at an amount to be agreed upon between the Borrower
and the Administrative Agent), seller financing, deferred payments or equity
issued) and (iii) the Net Cash Proceeds from each such Disposition shall be
subject to SECTION 2.05(d);
(l) other Dispositions of property by the Borrower and its Subsidiaries
in the ordinary course of business (i) in an aggregate amount not to exceed
$5,000,000 during the term hereof or (ii) as otherwise permitted by the Required
Lenders; PROVIDED that the Net Cash Proceeds from each such Disposition shall be
subject to SECTION 2.05(d); PROVIDED FURTHER that the Dollar limit set forth in
the foregoing clause (i) of this SECTION 8.05(l) shall be automatically
increased Dollar-for-Dollar by the amount of any permanent reduction of the
Revolving Credit Commitment pursuant to SECTION 2.06.
PROVIDED, HOWEVER, that any Disposition pursuant to clauses (a) through (c) and
(f) through (l) shall be for fair market value.
8.06 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that as long as no
Default or Event of Default is continuing or would result therefrom:
(a) (i) each Domestic Subsidiary of the Borrower may make Restricted
Payments to the Borrower and to wholly-owned Domestic Subsidiaries (and, in the
case of a Restricted Payment by a non-wholly-owned Domestic Subsidiary, to the
Borrower and any Domestic Subsidiary of the Borrower and to each other owner of
capital stock or other equity interests of such Domestic Subsidiary of the
Borrower on a PRO RATA basis based on their relative ownership interests) and
(ii) each Foreign Subsidiary of the Borrower may make Restricted Payments to the
Borrower and to wholly-owned Subsidiaries (and, in the case of a Restricted
Payment by a non-
86
wholly-owned Foreign Subsidiary, to the Borrower and any Subsidiary of the
Borrower and to each other owner of capital stock or other equity interests of
such Foreign Subsidiary of the Borrower on a PRO RATA basis based on their
relative ownership interests);
(b) the Borrower and each Subsidiary of the Borrower may declare and
make dividend payments or other distributions payable solely in the common stock
or other common equity interests of such Person;
(c) the Borrower may declare and make (and each Subsidiary of the
Borrower may declare and make to enable the Borrower to do the same) dividend
payments to Holdings so that Holdings may:
(i) pay corporate operating (including, without limitation,
directors fees and expenses) and overhead expenses in the ordinary course of
business;
(ii) pay any taxes which are due and payable in the ordinary
course of business by the Loan Parties as part of the consolidated group;
(iii) pay indemnification claims made by an officer or director or
shareholder of Holdings;
(iv) purchase capital stock or options from present or former
employees, officers, directors or consultants of Holdings or its Subsidiaries or
their respective estates, spouses or family members upon the death, disability
or termination of employment of such employee, officer, director or consultant,
or make payments with respect to Indebtedness used to repurchase such capital
stock or options (PROVIDED that the aggregate amount of payments under this
clause (iv) shall not exceed $2,500,000 in any Fiscal Year PLUS (A) proceeds of
key-man life insurance maintained by Holdings on the life of the Person with
respect to whom such repurchase is made, (B) notes permitted to be issued
pursuant to SECTION 8.03(i) and (C) equity proceeds not subject to any
prepayment requirements and which have not previously funded any repurchase
pursuant to this SECTION 8.06(c)(iv); PROVIDED FURTHER that (i) the cancellation
of debt shall not constitute a redemption and (ii) the consideration for the
purchase of capital stock or options pursuant to this clause (iv) may include
the issuance of another equity security);
(v) pay fees due and owning under the Professional Services
Agreement, subject to the restrictions set forth in SECTION 8.10;
(vi) redeem its Class B Preferred Stock in accordance with, and
as permitted under, SECTION 8.06(d);
(vii) make regularly scheduled payments of accrued interest on,
and "Liquidated Damages" (as defined in the Senior Unsecured Note Indenture)
payable in respect of, the Senior Unsecured Notes to the extent permitted by
SECTION 8.15(b)(ii);
(viii) make Permitted Note Repurchases as described in clauses (1)
and (3) of the definition thereof to the extent permitted by SECTION
8.15(b)(iii); and
87
(ix) make payments pursuant to the Acquisition Agreement or any
other agreement relating to a Permitted Acquisition in the nature of working
capital adjustments (including similar purchase price adjustments based on net
worth), indemnification obligations and earn-out payments;
(d) Holdings may redeem its Class B Preferred Stock, so long as (i)
immediately prior to and after giving effect to any such redemption, (A) no
Default or Event of Default has occurred and is continuing, (B) Holdings and its
Subsidiaries are in pro forma compliance with each of the covenants set forth in
SECTIONS 8.18 and 8.19 and (C) the Consolidated Total Leverage Ratio is less
than 3.25 to 1.00 (which, in the case of clauses (B) and (C) above, shall be
evidenced by an officer's compliance certificate, in form and substance
reasonably satisfactory to the Administrative Agent, delivered to the
Administrative Agent prior to such redemption by Holdings and the Borrower),
(ii) such redemption is made pursuant to, and in accordance with, the terms of a
stock redemption program approved by (or other specific authorization of) the
board of directors of Holdings and (iii) such redemption is permitted under
applicable Laws;
(e) Subsidiaries of the Borrower may make dividends or other
distributions to the Borrower or to another Subsidiary Guarantor;
(f) Holdings may purchase, repurchase, defease, acquire or retire for
value the capital stock of Holdings or options, warrants or other rights to
acquire such capital stock solely in exchange for, or out of the proceeds of the
sale of (so long as such purchase, repurchase, redemption, defeasance,
acquisition or retirement is consummated within thirty (30) days of such sale),
capital stock (other than Disqualified Stock) of Holdings or options, warrants
or other rights to acquire such capital stock;
(g) repurchases of capital stock of Holdings deemed to occur upon
exercise of options or warrants solely to the extent that shares of such capital
stock represent a portion of the exercise price of such options or warrants; and
(h) the making of cash payments in lieu of the issuance of fractional
shares in connection with the exercise of warrants, options or other securities
convertible into or exchangeable for equity interests of the Borrower or
Holdings.
8.07 LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL STOCK.
Issue, sell or otherwise dispose of any class or series of capital stock
that, by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of an event or passage of time would
be, (a) convertible or exchangeable into Indebtedness or (b) required to be
redeemed or repurchased, including at the option of the holder, in whole or in
part, or has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due (unless such redemption or repurchase is
contingent (unless such contingency has been satisfied) and is not required
prior to the date that is six (6) months after the Revolving Credit Maturity
Date) (it being acknowledged that redemptions permitted under Section 8.06(d)
shall not be deemed a sale or disposition of capital stock).
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8.08 CHANGE IN NATURE OF BUSINESS.
(a) With respect to the Borrower and its Subsidiaries, engage in any
material line of business substantially different from those lines of business
conducted by Holdings, the Borrower and their Subsidiaries on the date hereof or
any business substantially complementary related or incidental thereto.
(b) With respect to Holdings, engage in any business, operations or
activities other than holding the capital stock of the Borrower and the
employment of senior management (which senior management may perform management
functions on behalf of Holdings and its Subsidiaries in the ordinary course of
business, including corporate development, acquisition planning, strategic
planning, client development, due diligence activities and accounting
functions).
8.09 ACCOUNTING CHANGES; ORGANIZATIONAL DOCUMENTS.
(a) Change its Fiscal Year end, or make any change in its accounting
treatment and reporting practices except as required (or, with the consent of
the Administrative Agent, which shall not be unreasonably withheld, permitted)
by GAAP; or
(b) Amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational documents) or amend, modify or change
its bylaws (or other similar documents) in any manner adverse in any respect to
the rights or interests of the Lenders.
8.10 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction of any kind with any Affiliate of Holdings or
the Borrower, whether or not in the ordinary course of business, other than (a)
on fair and reasonable terms substantially as favorable to Holdings, the
Borrower or such Subsidiary as would be obtainable by Holdings, the Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
Person other than an Affiliate, (b) the transactions entered into pursuant to
the Equity Purchase Agreement, the Senior Management Agreements and the
Transitional Services Agreement), (c) transactions otherwise permitted hereunder
(including Restricted Payments permitted pursuant to SECTION 8.06, Investments
by or in Affiliates permitted pursuant to SECTION 8.02, and Indebtedness with
Affiliates permitted pursuant to SECTION 8.03), (d) customary indemnities to
present and former officers and directors, (e) transactions between or among the
Borrower and the Subsidiary Guarantors; (f) loans or advances to officers,
directors or employees in the ordinary course of business of the Borrower or the
Subsidiary Guarantors or guarantees in respect thereof or otherwise made on
their behalf (including payment on such guarantees) otherwise permitted under
this Agreement; (g) tax sharing agreements among Holdings, the Borrower and
Subsidiaries; and (h) payments to the Sponsor, pursuant to the Professional
Services Agreement, consisting of (i) a management fee not to exceed $300,000
per year, (ii) a placement fee not to exceed one percent (1%) of any equity
raised by Holdings after the Closing Date and (iii) out-of-pocket fees and
expenses in connection with the performance of its obligations under the
Professional Services Agreement and in connection with any financing of
Holdings; PROVIDED, that no Default shall have occurred and be continuing or
would result from the making of any such payment, it being understood that any
such fees not paid as a result
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of this proviso (herein the "BLOCKED FEES") and expenses may, notwithstanding
any such Default, continue to accrue, and may be payable, subject to the
provisions of this SECTION 8.10, upon the cure or waiver of any such Default.
8.11 BURDENSOME AGREEMENTS.
Enter into any Contractual Obligation (other than this Agreement or any
other Loan Document) that (a) limits the ability (i) of any Subsidiary of the
Borrower (A) to make Restricted Payments to the Borrower or any Subsidiary
Guarantor or (B) to otherwise transfer property (other than limitations
applicable under SECTION 8.03(g) with respect to the Capital Asset which is the
subject of such Indebtedness) to the Borrower or any Subsidiary Guarantor, (ii)
of Holdings or any Subsidiary to Guarantee the Indebtedness of the Borrower or
(iii) of Holdings or any Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person; PROVIDED, HOWEVER, that this clause (iii)
shall not prohibit any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under SECTION 8.03(g) solely to the extent any
such negative pledge relates to the property financed by or the subject of such
Indebtedness; (b) contains covenants more restrictive than the provisions of
Articles VII and VIII; or (c) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person, except in the case of the foregoing subclauses (a)(i)(B) and
(a)(iii) for any such limitations, restrictions or requirements: (1) in the
Equity Purchase Agreement, (2) with respect to any Subsidiary acquired pursuant
to a Permitted Acquisition, those existing on the date of such Permitted
Acquisition, (3) customary provisions in leases and other agreements restricting
assignment, (4) customary provisions with customers restricting transfers of
property; (5) imposed by Law, (6) imposed by Permitted Liens, (7) in connection
with Indebtedness permitted by SECTION 8.03(b)(ii), SECTION 8.03(b)(iii), or
SECTION 8.03(c), (8) in connection with industrial revenue bonds and operating
leases that impose encumbrances or restrictions on the property so acquired or
covered thereby, (9) on cash or other deposits or net worth required by
customers under contracts entered into in the ordinary course of business, (10)
which are customary in connection with the sale of a Subsidiary or an asset
pending such sale, (11) in joint venture or similar arrangements if such
provisions only apply to the Person that is the subject thereof, and (12) as set
forth in the Senior Unsecured Note Documents, the Other Permitted Indebtedness
or Subordinated Indebtedness.
8.12 USE OF PROCEEDS.
Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
8.13 IMPAIRMENT OF SECURITY INTERESTS.
Take or omit to take any action, which might or would have the result of
materially impairing the security interests in favor of the Administrative Agent
with respect to the Collateral or grant to any Person (other than the
Administrative Agent for the benefit of itself and the Lenders pursuant to the
Security Documents) any interest whatsoever in the Collateral, except for Liens
permitted under SECTION 8.01 and Dispositions permitted under SECTION 8.05.
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8.14 AMENDMENTS, PAYMENTS AND PREPAYMENTS OF SUBORDINATED INDEBTEDNESS.
(a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Subordinated Indebtedness.
(b) Cancel, forgive, make any payment or prepayment on, or redeem or
acquire for value (including, without limitation, (i) by way of depositing with
any trustee with respect thereto money or securities before due for the purpose
of paying when due and (ii) at the maturity thereof) any Subordinated
Indebtedness, except:
(A) refinancings, refundings, renewals, extensions or exchange
of any Subordinated Indebtedness permitted by SECTION 8.03(c)(ii); and
(B) the payment of regularly scheduled interest (it being
acknowledged that with respect to this clause (B), interest payments that may be
paid in cash, paid in kind or capitalized, in each case at the option of the
Borrower, shall be deemed to be regularly scheduled payments of interest) and
customary liquidated damages for failure to timely provide registered
securities, in each case as and when due in respect of Subordinated Indebtedness
incurred in compliance with SECTION 8.03(c), other than, in the case of this
clause (B), any such payments, purchases or other acquisitions of Subordinated
Indebtedness prohibited by the subordination provisions thereof.
8.15 AMENDMENTS, PAYMENTS AND PREPAYMENTS OF SENIOR UNSECURED NOTES.
(a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Senior Unsecured Notes in any respect which would
materially adversely affect the rights or interests of the Administrative Agent
and Lenders hereunder.
(b) Purchase, defease, make any payment or prepayment on (including,
without limitation, any sinking fund payment), or redeem or acquire for value
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due), the Senior Unsecured Notes (including making any offer to do any of the
foregoing), other than (i) refinancing, refundings, renewals, extensions or
exchanges of the Senior Unsecured Notes pursuant to SECTION 8.03(b), (ii)
regularly scheduled payments of accrued interest on, and "Liquidated Damages"
(as defined in the Senior Unsecured Note Indenture) payable in respect of, the
Senior Unsecured Notes, and (iii) Permitted Note Repurchases.
8.16 ACQUISITION DOCUMENTS.
Amend, modify, waive or supplement (or permit the modification, amendment,
waiver or supplementation of) any of the terms or provisions of the Acquisition
Documents in any respect which would materially adversely affect the rights or
interests of the Administrative Agent and Lenders hereunder.
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8.17 EQUITY PURCHASE AGREEMENT.
Amend, modify, waive or supplement (or permit the modification, amendment,
waiver or supplementation of) any of the terms or provisions of the Equity
Purchase Agreement in any respect which would materially adversely affect the
rights or interests of the Administrative Agent and Lenders hereunder.
8.18 FINANCIAL COVENANTS.
(a) CONSOLIDATED TOTAL LEVERAGE RATIO. Permit the Consolidated Total
Leverage Ratio at any time during any period of four (4) consecutive Fiscal
Quarters set forth below to be greater than the ratio set forth below opposite
such period:
Maximum Consolidated Total
Four Fiscal Quarters Ending Leverage Ratio
-------------------------------------------------------------------------------------
Closing Date through and including December 31, 2004 3.75 to 1.00
January 1, 2005 and thereafter 3.50 to 1.00
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio at any time during any period of four (4)
consecutive Fiscal Quarters set forth below to be less than the ratio set forth
below opposite such period:
Minimum Consolidated Fixed
Four Fiscal Quarters Ending Charge Coverage Ratio
-------------------------------------------------------------------------------------
Closing Date through and including December 31, 2003 1.25 to 1.00
January 1, 2004 and thereafter 1.75 to 1.00
(c) MINIMUM NET WORTH. Permit Consolidated Net Worth at any time to be
less than the sum of (i) $89,000,000, PLUS (ii) an amount equal to 50% of
Consolidated Net Income (to the extent positive) after the Closing Date PLUS
(iii) an amount equal to 100% of the amount of all equity issuances after the
Closing Date appearing on the balance sheet of Holdings and its Subsidiaries (as
determined in accordance with GAAP) LESS (iv) an amount equal to the reduction
on the balance sheet of Holdings and its Subsidiaries (as determined in
accordance with GAAP) resulting from any redemptions of Class B Preferred Stock
permitted hereunder after the Closing Date.
8.19 CAPITAL EXPENDITURES.
Make or become legally obligated to make any Capital Expenditures
(excluding normal replacements and maintenance which are properly charged to
current operations), except for Capital Expenditures in the ordinary course of
business not exceeding, in the aggregate for
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Holdings and it Subsidiaries during any Fiscal Year, $10,000,000; PROVIDED that
all Capital Expenditures incurred in the ordinary course of business for the
purpose of maintaining or replacing existing Capital Assets shall not exceed
$2,500,000 in the aggregate for Holdings and its Subsidiaries during any Fiscal
Year; PROVIDED FURTHER that so long as no Default has occurred and is continuing
or would result from such expenditure, any portion of any amount set forth
above, if not expended in the Fiscal Year for which it is permitted above, may
be carried over for expenditure in the next following Fiscal Year; PROVIDED,
FURTHER, that the Borrower may make Capital Expenditures of up to $3,000,000 in
connection with the upgrade and reimplementation of the Oracle ERP System and
such amounts shall not count towards the amounts set forth above.
ARTICLE IX.
GUARANTY OF HOLDINGS
9.01 GUARANTY OF OBLIGATIONS.
Holdings hereby unconditionally guarantees to the Administrative Agent for
the ratable benefit of the Administrative Agent and the Lenders, and their
respective successors, endorsees, transferees and assigns, the prompt payment
and performance of all Obligations of the Borrower, whether primary or secondary
(whether by way of endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished (except by
payment thereof) or hereafter increased or incurred, whether or not recovery may
be or hereafter become barred by the statute of limitations, whether enforceable
or unenforceable as against the Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with the Administrative Agent or any Lender
or acquired by the Administrative Agent or any Lender through assignment,
endorsement or otherwise, whether matured or unmatured, whether joint or
several, as and when the same become due and payable (whether at maturity or
earlier, by reason of acceleration, mandatory repayment or otherwise), in
accordance with the terms of any such instruments evidencing any such
obligations, including all renewals, extensions or modifications thereof (all
Obligations of the Borrower, including all of the foregoing, being hereinafter
collectively referred to as the "GUARANTEED OBLIGATIONS").
9.02 NATURE OF GUARANTY.
(a) Holdings agrees that this Parent Guaranty is a continuing,
unconditional guaranty of payment and performance and not of collection, and
that its obligations under this Parent Guaranty shall be primary, absolute and
unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement or any other Loan
Document or any other agreement, document or instrument to which Holdings,
the Borrower, any Subsidiary thereof or any Affiliate thereof is or may
become a party;
(ii) the absence of any action to enforce this Parent Guaranty,
this Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any
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Lender with respect to any of the provisions of this Parent Guaranty, this
Agreement or any other Loan Document;
(iii) the existence, value or condition of, or failure to perfect
its Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or
guaranty);
(iv) any structural change in, restructuring of or similar change
of Holdings, the Borrower or any of their Subsidiaries; or
(v) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by Holdings that its obligations under this Parent Guaranty
shall not be discharged until the final and indefeasible payment and
performance, in full, of the Guaranteed Obligations (other than contingent
indemnity obligations) and the termination of the Revolving Credit Commitments.
(b) Holdings represents, warrants and agrees that its obligations under
this Parent Guaranty are not and shall not be subject to any counterclaims,
offsets or defenses of any kind against the Administrative Agent, the Lenders or
the Borrower whether now existing or which may arise in the future.
(c) Holdings hereby agrees and acknowledges that the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Parent Guaranty, and all dealings between Holdings, the Borrower and
any of the Subsidiary Guarantors, on the one hand, and the Administrative Agent
and the Lenders, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this Parent Guaranty.
9.03 WAIVERS.
To the extent permitted by law, Holdings expressly waives all of the
following rights and defenses (and agrees not to take advantage of or assert any
such right or defense):
(a) rights it may now or in the future have under any statute, or at law
or in equity, or otherwise, to compel the Administrative Agent or any Lender to
proceed in respect of the Guaranteed Obligations against the Borrower or any
other Person or against any security for or other guaranty of the payment and
performance of the Guaranteed Obligations before proceeding against, or as a
condition to proceeding against, Holdings;
(b) any defense based upon the failure of the Administrative Agent or
any Lender to commence an action in respect of the Guaranteed Obligations
against Holdings, the Borrower, any Subsidiary Guarantor, any other guarantor or
any other Person or any security for the payment and performance of the
Guaranteed Obligations;
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(c) any right to insist upon, plead or in any manner whatever claim or
take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by Holdings of its obligations under, or the enforcement by the
Administrative Agent or the Lenders of, this Parent Guaranty;
(d) any right of diligence, presentment, demand, protest and notice
(except as specifically required herein) of whatever kind or nature with respect
to any of the Guaranteed Obligations and waives, to the extent permitted by law,
the benefit of all provisions of law which are or might be in conflict with the
terms of this Parent Guaranty; and
(e) any and all right to notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by the Administrative Agent or any Lender upon, or acceptance of, this Parent
Guaranty.
Holdings agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with any of the
foregoing waivers shall be null and void and may be ignored by the
Administrative Agent or such Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Parent Guaranty for
the reason that such pleading or introduction would be at variance with the
written terms of this Parent Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by this Agreement and
the other Loan Documents and, but for this Parent Guaranty and such waivers, the
Administrative Agent and Lenders would decline to enter into this Agreement and
the other Loan Documents.
9.04 MODIFICATION OF LOAN DOCUMENTS, ETC.
Neither the Administrative Agent nor any Lender shall incur any liability
to Holdings as a result of any of the following, and none of the following shall
impair or release this Parent Guaranty or any of the obligations of Holdings
under this Parent Guaranty:
(a) any change or extension of the manner, place or terms of payment of,
or renewal or alteration of all or any portion of, the Guaranteed Obligations;
(b) any action under or in respect of this Agreement or the other Loan
Documents in the exercise of any remedy, power or privilege contained herein or
therein or available to any of them at law, in equity or otherwise, or waiver or
refrain from exercising any such remedies, powers or privileges;
(c) any amendment or modification, in any manner whatsoever, of this
Agreement or the other Loan Documents;
(d) any extension or waiver of the time for performance by Holdings, the
Borrower, any Subsidiary Guarantor or any other Person of, or compliance with,
any term, covenant or agreement on its part to be performed or observed under
this Agreement or any other Loan Document, or waiver of such performance or
compliance or consent to a failure of, or departure from, such performance or
compliance;
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(e) any taking and holding of security or collateral for the payment of
the Guaranteed Obligations or any sale, exchange, release, disposal of, or other
dealing with, any property pledged, mortgaged or conveyed, or in which the
Administrative Agent or any Lender has been granted a Lien, to secure any
Indebtedness of Holdings, the Borrower, any Subsidiary Guaranty or any other
Person to the Administrative Agent or any Lender;
(f) any release of any Person who may be liable in any manner for the
payment of any amounts owed by Holdings, the Borrower, any Subsidiary Guarantor
or any other Person to the Administrative Agent or any Lender;
(g) any modification or termination of the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of Holdings,
the Borrower, any Subsidiary Guarantor or any other Person are subordinated to
the claims of the Administrative Agent or any Lender; or
(h) any application of any sums by whomever paid or however realized to
any amounts owing by Holdings, the Borrower, any Subsidiary Guarantor or any
other Person to the Administrative Agent or any Lender on account of the
Guaranteed Obligations in such manner as the Administrative Agent or any Lender
shall determine in its reasonable discretion.
9.05 DEMAND BY ADMINISTRATIVE AGENT.
In addition to the terms set forth in this ARTICLE IX, and in no manner
imposing any limitation on such terms, if all or any portion of the then
outstanding Guaranteed Obligations under this Agreement are declared to be
immediately due and payable, then Holdings shall, upon demand in writing
therefor by the Administrative Agent to Holdings, pay all or such portion of the
outstanding Guaranteed Obligations then declared due and payable.
Notwithstanding the foregoing, Holdings agrees that, in the event of the
dissolution or insolvency of Holdings, the Borrower or any Subsidiary Guarantor,
or the inability or failure of Holdings, the Borrower or any Subsidiary
Guarantor to pay debts as they become due, or an assignment by Holdings, the
Borrower or any Subsidiary Guarantor for the benefit of creditors, or the
commencement of any case or proceeding in respect of Holdings, the Borrower or
any Subsidiary Guarantor under bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Guaranteed Obligations may not
then be due and payable, Holdings will pay to the Administrative Agent, for the
ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, forthwith the full amount which would be payable
hereunder by Holdings if all such Guaranteed Obligations were then due and
payable.
9.06 REMEDIES.
Upon the occurrence and during the continuance of any Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, enforce
against Holdings its obligations and liabilities hereunder and exercise such
other rights and remedies as may be available to the Administrative Agent
hereunder, under the other Loan Documents or otherwise.
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9.07 REINSTATEMENT.
Holdings agrees that, if any payment made by the Borrower or any other
Person applied to the Guaranteed Obligations is at any time annulled, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid, or the proceeds of any Collateral are
required to be returned by the Administrative Agent or any Lender to the
Borrower, its estate, trustee, receiver or any other Person, including, without
limitation, Holdings or any Subsidiary Guarantor, under any applicable Law or
equitable cause, then, to the extent of such payment or repayment, Holdings'
liability hereunder (and any Lien or Collateral securing such liability) shall
be and remain in full force and effect, as fully as if such payment had never
been made, and, if prior thereto, this Parent Guaranty shall have been canceled
or surrendered (and if any Lien or Collateral securing Holdings' liability
hereunder shall have been released or terminated by virtue of such cancellation
or surrender), this Parent Guaranty (and such Lien or Collateral) shall be
reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect the
obligations of Holdings in respect of the amount of such payment (or any Lien or
Collateral securing such obligation).
9.08 PAYMENTS.
Payments by Holdings shall be made to the Administrative Agent, to be
credited and applied upon the Guaranteed Obligations, in immediately available
Dollars to an account designated by the Administrative Agent or at the
Administrative Agent's Office or at any other address that may be specified in
writing from time to time by the Administrative Agent.
9.09 NO SUBROGATION.
Until all amounts owing to the Administrative Agent and the Lenders on
account of the Guaranteed Obligations are paid in full and the Revolving Credit
Commitments are terminated, Holdings hereby waives any claims or other rights
which it may now or hereafter acquire against the Borrower that arise from the
existence or performance of Holdings' obligations under this Parent Guaranty,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, any right to participate in any claim or remedy of
the Administrative Agent or the Lenders against the Borrower or any Collateral
which the Administrative Agent or the Lenders now have or may hereafter acquire,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise, including
without limitation, the right to take or receive from the Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to Holdings on account of such rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by
Holdings in trust for the Administrative Agent, segregated from other funds of
Holdings, and shall, forthwith upon receipt by Holdings, be turned over to the
Administrative Agent in the exact form received by Holdings (duly indorsed by
Holdings to the Administrative Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as set forth herein.
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ARTICLE X.
EVENTS OF DEFAULT AND REMEDIES
10.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) NON-PAYMENT. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three (3) days after the same becomes due,
any interest on any Loan or on any L/C Obligation, or any Commitment Fee or
other fee due hereunder, or (iii) within five (5) days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or
(b) SPECIFIC COVENANTS. The Borrower or any other Loan Party fails to
perform or observe any term, covenant or agreement contained in any of SECTION
7.01, SECTION 7.02, SECTION 7.03, SECTION 7.05, SECTION 7.10, SECTION 7.12,
SECTION 7.13, SECTION 7.15 or SECTION 7.16 or ARTICLE VIII; or
(c) OTHER DEFAULTS. The Borrower or any other Loan Party fails to
perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty (30) days after written notice
thereof has been given to the Borrower by the Administrative Agent; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be materially
incorrect or materially misleading when made or deemed made; or
(e) CROSS-DEFAULT.
(i) Holdings, the Borrower or any Subsidiary (A) fails after all
applicable grace periods to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount, or
(B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; PROVIDED, HOWEVER, in no event shall a repurchase,
prepayment, defeasance or redemption or an offer to do any of the foregoing
which is (A) required in connection with asset sales under the Senior Unsecured
Note Documents or
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other Indebtedness permitted to be incurred pursuant to SECTION 8.03 and (B)
expressly permitted by this Agreement, constitute an Event of Default under this
Agreement; or
(ii) There occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which Holdings, the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by Holdings, the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(iii) Holdings, the Borrower or any Subsidiary shall default in
the payment when due, or in the performance or observance, of any material
obligation or material condition of any Contractual Obligation the result of
which could reasonably be expected to have a Material Adverse Effect, unless,
but only as long as, the existence of any such default is being contested by
Holdings, the Borrower or any such Subsidiary in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of Holdings, the Borrower or any such Subsidiary to the extent
required by GAAP; or
(f) INSOLVENCY PROCEEDINGS, ETC. Holdings, the Borrower or any
Subsidiary institutes or consents to the institution of any proceeding under any
Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) Holdings, the Borrower or
any Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) JUDGMENTS. There is entered against Holdings, the Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not paid or
covered by indemnification or independent third-party insurance as to which the
insurer does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 30 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or
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(i) ENVIRONMENTAL. Holdings, the Borrower or any Subsidiary shall incur
any Environmental Liability and such liability would reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
(j) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) Holdings, the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold
Amount; or
(k) INVALIDITY OF LOAN DOCUMENTS. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; and
(l) CHANGE OF CONTROL. There occurs any Change of Control.
10.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable Law;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall
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automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
10.03 APPLICATION OF FUNDS.
After the exercise of remedies provided for in SECTION 10.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to SECTION 10.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under ARTICLE IV) payable to the Administrative Agent in its capacity as
such;
SECOND, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under ARTICLE IV), ratably
among them in proportion to the amounts described in this clause SECOND payable
to them;
THIRD, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause THIRD payable
to them;
FOURTH, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause FOURTH held by
them;
FIFTH, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;
SIXTH, to payment of that portion of the Obligations constituting
termination payments due in respect of a Swap Contract with any with any Person
that is a Lender or an Affiliate thereof at the time such Swap Contract was
executed, ratably among the Lenders in proportion to the respective amounts
described in this clause SIXTH held by them; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to SECTION 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause FIFTH above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
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ARTICLE XI.
ADMINISTRATIVE AGENT
11.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this ARTICLE X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this ARTICLE X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
11.02 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
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11.03 LIABILITY OF ADMINISTRATIVE AGENT.
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
11.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in SECTION 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
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11.05 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default."
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent shall take such action with respect to such
Default as may be directed by the Required Lenders in accordance with ARTICLE X;
PROVIDED, HOWEVER, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable or in the best interest of the Lenders.
11.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
11.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each Agent-Related
Person for, from and against any and all Indemnified
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Liabilities incurred by it; PROVIDED, HOWEVER, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; PROVIDED, HOWEVER, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower and
the other Loan Parties. The undertaking in this Section shall survive
termination of the Revolving Credit Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.
11.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
11.09 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders and the Borrower; PROVIDED that any such resignation by
Bank of America shall also constitute its resignation as L/C Issuer and Swing
Line Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the
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retiring Administrative Agent, L/C Issuer and Swing Line Lender and the
respective terms "Administrative Agent," "L/C Issuer" and "Swing Line Lender"
shall mean such successor administrative agent, Letter of Credit issuer and
swing line lender, the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated and the retiring L/C Issuer's
and Swing Line Lender's rights, powers and duties as such shall be terminated,
without any other or further act or deed on the part of such retiring L/C Issuer
or Swing Line Lender or any other Lender, other than the obligation of the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE XI and SECTION 12.04 and
SECTION 12.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders in consultation with the Borrower appoint a successor agent as
provided for above.
11.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under SECTION 2.03(i) and SECTION 2.03(j), SECTION
3.02 and SECTION 12.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent
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and its agents and counsel, and any other amounts due the Administrative Agent
under SECTION 3.02 and SECTION 12.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
11.11 COLLATERAL AND GUARANTY MATTERS.
(a) The Lenders irrevocably authorize the Administrative Agent to, and
the Administrative Agent shall:
(i) release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Revolving Credit Commitments and payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is sold or otherwise
disposed of, or to be sold or otherwise disposed of, as part of or in
connection with any sale or other disposition permitted hereunder or under
any other Loan Document, or (iii) subject to SECTION 12.01, if approved,
authorized or ratified in writing by the Required Lenders; and
(ii) release any Subsidiary Guarantor from its obligations under
the Subsidiary Guaranty Agreement if such Person ceases to be a Subsidiary
as a result of a transaction permitted hereunder.
(b) The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to subordinate any Lien on any property granted to
or held by the Administrative Agent under any Loan Document to the holder of any
Lien on such property that is permitted by SECTION 8.01(i).
(c) Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's obligation (as
provided in subsection (a) above) and authority (as provided in subsection (b)
above) to release or subordinate its interest in particular types or items of
property, or to release any Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty Agreement pursuant to this SECTION 11.11.
11.12 OTHER AGENTS; ARRANGERS AND MANAGERS.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of
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the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE XII.
MISCELLANEOUS
12.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; PROVIDED, HOWEVER, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in SECTION 5.01(a) without the written
consent of each Lender;
(b) extend or increase the Revolving Credit Commitment of any Lender (or
reinstate any Commitment terminated pursuant to SECTION 10.02) without the
written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this SECTION 12.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; PROVIDED, HOWEVER, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;
(e) change SECTION 3.06 or SECTION 10.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
(g) release Holdings from its obligations under the Parent Guaranty
without the written consent of each Lender;
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(h) release any Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty Agreement without the written consent of each Lender except
to the extent pursuant to a transaction permitted under SECTION 8.04 or 8.05; or
(i) release all or a material portion of the Collateral or release any
Security Document (other than asset sales permitted pursuant to SECTION 8.05 and
as otherwise specifically permitted or contemplated in this Agreement or the
applicable Security Document) without the written consent of each Lender;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Revolving Credit Commitment of such Lender may not be increased
or extended without the consent of such Lender.
12.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) GENERAL. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to Holdings, the Borrower, the Administrative Agent, the
L/C Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
SCHEDULE 12.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail,
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four Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; PROVIDED, HOWEVER, that
notices and other communications to the Administrative Agent, the L/C Issuer and
the Swing Line Lender pursuant to ARTICLE II shall not be effective until
actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; PROVIDED, HOWEVER, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in SECTION 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
effective for any other purpose.
(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower
shall indemnify each Agent-Related Person and each Lender for, from and against
all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
12.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.04 ATTORNEY COSTS, EXPENSES AND TAXES.
Each of Holdings and the Borrower agrees (a) to pay or reimburse the
Administrative Agent for all reasonable out-of-pocket costs and all reasonable
out-of-pocket expenses incurred in connection with the development, preparation,
negotiation, execution, filing, recording and
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insurance of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all reasonable
out-of-pocket costs and reasonable out-of-pocket expenses incurred in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such
reasonable out-of-pocket costs and reasonable out-of-pocket expenses incurred
during any "workout" or restructuring in respect of the Obligations and during
any legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. All amounts
due under this SECTION 12.04 shall be payable within thirty Business Days after
demand therefor. The agreements in this Section shall survive the termination of
the Revolving Credit Commitments and repayment of all other Obligations.
12.05 INDEMNIFICATION.
Whether or not the transactions contemplated hereby are consummated, each
of Holdings and the Borrower shall indemnify and hold harmless each
Agent-Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"INDEMNITEES") for, from and against any and all actual liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, reasonable out-of-pocket costs, expenses and disbursements (including,
without limitation, Attorney Costs) of any kind or nature whatsoever which may
at any time be imposed on, incurred by or asserted against any such Indemnitee
in any way relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby (PROVIDED that each of Holdings and the
Borrower shall not be obligated to reimburse any Lender (other than the
Administrative Agent) for legal fees and expenses incurred prior to the Closing
Date in connection with the negotiation and closing of the Loan Documents), (b)
any Revolving Credit Commitment, Loan or Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (c) any actual or alleged presence or release of Hazardous Materials
on or from any property currently or formerly owned or operated by Holdings, the
Borrower or any Subsidiary, or any Environmental Liability related in any way to
Holdings, the Borrower or any Subsidiary, or (d) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; PROVIDED that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities,
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obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted primarily from
the bad faith, gross negligence or willful misconduct of such Indemnitee or any
of its Affiliates or any of their respective directors, officers, employees,
advisors or agents. No Indemnitee shall be liable for any damages arising from
the use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in connection with
this Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date). All amounts due under this SECTION 12.05
shall be payable within thirty Business Days after demand therefor. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the Revolving Credit
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
12.06 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of Holdings, the Borrower or
any Subsidiary is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
12.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Holdings and the Borrower may not assign or
otherwise transfer any of their respective rights or obligations hereunder
without the prior written consent of each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) or (i) of this
SECTION 12.07 (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
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(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); PROVIDED that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender's Revolving
Credit Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as
defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Revolving Credit Commitment (which for this purpose
includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Revolving Credit Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Revolving Credit Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender unless the Person
that is the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of SECTION 4.01, SECTION 4.04, SECTION 4.05,
SECTION 12.04 and SECTION 12.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. To the extent requested by the Borrower following any such assignment,
the Assigning Lender agrees to return any such replaced Note to the Borrower for
cancellation or notation of assignment. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving Credit
Commitments of, and principal amounts of the Loans and L/C Obligations 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
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Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or Holdings, the Borrower or any of their
Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and/or the Loans (including such
Lender's participations in L/C Obligations and/or Swing Line Loans) owing to
it); PROVIDED that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to SECTION 12.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of SECTION 4.01, SECTION 4.04
and SECTION 4.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
SECTION 12.09 as though it were a Lender, PROVIDED such Participant agrees to be
subject to SECTION 3.06 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under SECTION 4.01 or 4.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of SECTION 4.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with SECTION 12.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i)
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the Administrative Agent, the L/C Issuer and the Swing Line Lender, and
(ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
PROVIDED that notwithstanding the foregoing, "Eligible Assignee" shall not
include Holdings, the Borrower or any of their Affiliates or Subsidiaries.
"FUND" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"APPROVED FUND" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, PROVIDED that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
SECTION 12.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Revolving Credit Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon 30 days' notice
to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days'
notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; PROVIDED, HOWEVER, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer,
it shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Revolving Credit Loans
bearing interest at the Base Rate or fund risk participations in Unreimbursed
Amounts pursuant to SECTION 2.03(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Revolving Credit Loans or fund risk participations in
outstanding Swing Line Loans pursuant to SECTION 2.04(c).
12.08 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its
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Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential in accordance
with the terms hereof); (b) to the extent requested by any regulatory authority
(provided that to the extent practical, such Person being requested or required
to disclose such information shall provide advance notice to the Borrower
(however, such Person shall have no liability for any failure to provide such
notice)); (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process (provided that to the extent practical, such
Person being requested or required to disclose such information shall provide
advance notice to the Borrower (however, such Person shall have no such
liability for any failure to provide such notice)); (d) to any other party to
this Agreement; (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section prior to disclosure, to (i) any
Eligible Assignee of or Participant in, or any prospective Eligible Assignee of
or Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Loan Parties; (g) with the prior written consent of the Borrower; (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than the Borrower;
or (i) to the National Association of Insurance Commissioners or any other
similar organization. In addition, the Administrative Agent and the Lenders may
disclose the existence of this Agreement and information about this Agreement to
market data collectors, similar service providers to the lending industry, and
service providers to the Administrative Agent and the Lenders in connection with
the administration and management of this Agreement, the other Loan Documents,
the Revolving Credit Commitments, and the Credit Extensions. For the purposes of
this Section, "INFORMATION" means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party; PROVIDED that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information; PROVIDED that such degree of care is no less than a
reasonable degree of care. Notwithstanding anything herein to the contrary or
any other agreement or understanding, "Information" shall not include, and
Holdings, the Borrower, the Administrative Agent and each Lender may disclose
(and each of their respective employees, representatives and other agents) to
any and all Persons, without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to Holdings, the Borrower, the Administrative
Agent or such Lender relating to such tax treatment and tax structure; PROVIDED
that with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other
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information, this sentence shall only apply to such portions of the document or
similar item that relate to the tax treatment or tax structure of the Loans,
Letters of Credit and transactions contemplated hereby.
12.09 SET-OFF.
In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender
is authorized at any time and from time to time, without prior notice to
Holdings, the Borrower or any other Loan Party, any such notice being waived by
Holdings and the Borrower (on their own behalf and on behalf of each Loan Party)
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Administrative Agent
or such Lender shall have made demand under this Agreement or any other Loan
Document and although such Obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off and application.
12.10 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"MAXIMUM RATE"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
12.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
12.12 INTEGRATION.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; PROVIDED that the inclusion of supplemental rights or remedies in
favor
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of the Administrative Agent or the Lenders in any other Loan Document shall not
be deemed a conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
12.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
12.14 SEVERABILITY.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
12.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "FOREIGN LENDER") shall deliver to
the Administrative Agent and the Borrower, on or prior to the Closing Date (or,
with respect to an assignment of an interest herein, on or prior to the
effective date of such assignment), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the Borrower pursuant to this Agreement) or
such other evidence satisfactory to the Borrower and the Administrative Agent
that such Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent and the Borrower such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower and
the Administrative Agent of any available exemption from or reduction of, United
States
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withholding taxes in respect of all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the case
of a typical participation by such Lender), shall deliver to the Administrative
Agent on the date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies
of the forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under SECTION 4.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this SECTION 12.15(a) or (B) if such Lender shall have failed
to satisfy the foregoing provisions of this SECTION 12.15(a); PROVIDED that if
such Lender shall have satisfied the requirement of this SECTION 12.15(a) on the
date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this SECTION
12.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to SECTION 4.01 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower is not required to pay
additional amounts under this SECTION 12.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails
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to deliver such forms, then the Administrative Agent may, notwithstanding
SECTION 4.01, withhold from any interest payment to such Lender an amount
equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Borrower or the
Administrative Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Lender, such Lender shall indemnify the Administrative Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Revolving Credit
Commitments, repayment of all other Obligations hereunder and the resignation of
the Administrative Agent.
12.16 REPLACEMENT OF LENDERS.
Under any circumstances set forth herein providing that the Borrower shall
have the right to replace a Lender as a party to this Agreement, the Borrower
may, upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Revolving Credit Commitment (with
the assignment fee to be paid by the Borrower in such instance) pursuant to
SECTION 12.07(b) to one or more other Lenders or Eligible Assignees procured by
the Borrower; PROVIDED, HOWEVER, that if the Borrower elects to exercise such
right with respect to any Lender pursuant to SECTION 4.06(b), it shall be
obligated to replace all Lenders that have made similar requests for
compensation pursuant to SECTION 4.01 or 4.04. The Borrower shall (x) pay in
full all principal, interest, fees and other amounts owing to such Lender
through the date of replacement (including any amounts payable pursuant to
SECTION 4.05), (y) provide appropriate assurances and indemnities (which may
include letters of credit) to the L/C Issuer and the Swing Line Lender as each
may reasonably require with respect to any continuing obligation to fund
participation interests in any L/C Obligations or any Swing Line Loans then
outstanding, and (z) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Revolving Credit Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.
12.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE (INCLUDING
NEW YORK GENERAL OBLIGATION LAW
SECTION 5-1401); PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN THE BOROUGH OF MANHATTAN,
NEW YORK OR OF THE UNITED STATES DISTRICT
COURTS OF SUCH STATE SITTING IN THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND
120
DELIVERY OF THIS AGREEMENT, HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. HOLDINGS, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
12.18 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
12.19 REPAYMENT OF THE SENIOR SUBORDINATED NOTES.
The Administrative Agent and the Lenders hereby agree and acknowledge that,
on the Closing Date, (a) the Borrower may repay in full in cash the Senior
Subordinated Notes and the obligations thereunder and (b) the holders of the
Senior Subordinated Notes may accept such repayment (which repayment is required
pursuant to SECTION 5.01(c)(v)). The parties hereto agree that the holders of
the Senior Subordinated Notes are intended beneficiaries of this SECTION 12.19.
12.20 ENTIRE AGREEMENT.
This Agreement and the other Loan Documents represent the final agreement
among the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements among the parties.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
DIGITALNET, INC.,
as the Borrower
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Treasurer, Chief Financial Officer
and Secretary
DIGITALNET HOLDINGS, INC.,
as a Guarantor
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Treasurer, Chief Financial Officer
and Secretary
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Agency Officer, Assistant
Vice President
BANK OF AMERICA, N.A.,
as Lender, L/C Issuer and Swing Line Lender
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
MADISON CAPITAL FUNDING LLC,
as Syndication Agent and Lender
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Managing Director
SOVEREIGN BANK, as Lender
By: /s/ Xxx X. Massimo
---------------------------------------
Name: Xxx X. Massimo
Title: Vice President
XXXXXXX XXXXX BANK, FSB,
as Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
