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EXHIBIT 10.4
CREDIT AGREEMENT
dated as of
November 24, 1999
among
HMTF Bridge Partners, L.P.,
The Lenders Parties Hereto,
and
[A bank, as defined in Section 3(a)(6)
of the Securities Exchange Act
of 1934, as amended]
as Administrative Agent
$110,000,000.00
TERM LOAN FACILITY
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TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions..............................................................................................1
SECTION 1.1 Defined Terms..........................................................................1
SECTION 1.2 Terms Generally........................................................................9
SECTION 1.3 Accounting Terms; GAAP.................................................................9
ARTICLE 2
Term Loans..............................................................................................10
SECTION 2.1 Term Loans..........................................................................10
SECTION 2.2 Procedure for Term Loan Borrowing...................................................10
SECTION 2.3 Repayment of Loans; Evidence of Debt; etc...........................................10
SECTION 2.4 Termination and Reduction of Commitments............................................11
SECTION 2.5 Prepayments.........................................................................11
SECTION 2.6 Conversion and Continuation Options.................................................12
SECTION 2.7 Minimum Amounts and Maximum Number of Tranches......................................13
SECTION 2.8 Interest............................................................................13
SECTION 2.9 Fees................................................................................13
SECTION 2.10 Inability to Determine Interest Rate................................................14
SECTION 2.11 Pro Rata Treatment and Payments.....................................................14
SECTION 2.12 Requirements of Law.................................................................15
SECTION 2.13 Taxes...............................................................................16
SECTION 2.14 Indemnity...........................................................................17
SECTION 2.15 Change of Lending Office............................................................18
SECTION 2.16 Replacement of Lenders..............................................................18
ARTICLE 3
Representations and Warranties..........................................................................18
SECTION 3.1 Organization; Powers................................................................18
SECTION 3.2 Authorization; Enforceability.......................................................19
SECTION 3.3 Governmental Approvals; No Conflicts................................................19
SECTION 3.4 Compliance with Laws and Agreements.................................................19
SECTION 3.5 Investment and Holding Company Status...............................................19
SECTION 3.6 Material Adverse Effect.............................................................19
SECTION 3.7 No Material Litigation..............................................................19
SECTION 3.8 Disclosure..........................................................................19
SECTION 3.9 Investments.........................................................................20
ARTICLE 4
Conditions Precedent....................................................................................20
SECTION 4.1 ............................................................................................20
(a) Loan Documents............................................................................20
(b) Closing Certificate.......................................................................20
(c) Legal Opinion.............................................................................20
(d) Approvals.................................................................................20
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(e) Fees......................................................................................21
(f) Filings...................................................................................21
SECTION 4.2 Additional Conditions for Each Credit Event.........................................21
(a) Pledge Agreement..........................................................................21
(b) Representations and Warranties............................................................21
(c) No Default................................................................................21
(d) Certificate...............................................................................21
(e) Co-Investment.............................................................................21
(f) Legal Opinion.............................................................................22
(g) Management and Advisory Agreements........................................................22
(h) Investment................................................................................22
ARTICLE 5
Covenants...............................................................................................22
SECTION 5.1 Notices of Material Events..........................................................22
SECTION 5.2 Existence; Conduct of Business......................................................22
SECTION 5.3 Payment of Obligations..............................................................22
SECTION 5.4 Compliance with Laws................................................................23
SECTION 5.5 Use of Proceeds.....................................................................23
SECTION 5.6 Additional Collateral...............................................................23
SECTION 5.7 Financial Reporting.................................................................23
SECTION 5.8 Additional Guarantors...............................................................23
ARTICLE 6
Negative Covenants......................................................................................24
SECTION 6.1 Indebtedness........................................................................24
SECTION 6.2 Liens...............................................................................24
SECTION 6.3 Fundamental Changes.................................................................24
SECTION 6.4 Restricted Payments.................................................................24
SECTION 6.5 Sale of Assets......................................................................24
ARTICLE 7
Events of Default.......................................................................................25
ARTICLE 8
The Administrative Agent................................................................................27
ARTICLE 9
Miscellaneous...........................................................................................28
SECTION 9.1 Notices.............................................................................28
SECTION 9.2 Waivers; Amendments.................................................................29
SECTION 9.3 Expenses; Indemnity; Damage Waiver..................................................29
SECTION 9.4 Successors and Assigns..............................................................30
SECTION 9.5 Survival............................................................................32
SECTION 9.6 Counterparts; Integration; Effectiveness............................................32
SECTION 9.7 Severability........................................................................32
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SECTION 9.8 Right of Setoff.....................................................................32
SECTION 9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS .........................................................................32
SECTION 9.10 WAIVER OF JURY TRIAL................................................................33
SECTION 9.11 Headings............................................................................33
SECTION 9.12 Confidentiality.....................................................................33
SECTION 9.13 Syndication.........................................................................34
SCHEDULE:
Schedule 2.1 -- Commitments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Counsel
Exhibit C -- Form of Closing Certificate
Exhibit D -- Form of Affiliate Guarantee
Exhibit E -- Form of Note
Exhibit F -- Form of Pledge Agreement
Exhibit G -- Form of Xxxxx Muse Letter Agreement
Exhibit H -- Form of Principal Agreement
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CREDIT AGREEMENT, dated as of November 24, 1999, among HMTF Bridge
Partners, L.P., the Lenders parties hereto from time to time and [a bank, as
defined in Section 3(a)(6) of the Securities Exchange Act of 1934, as amended
(the "Bank")], as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR Loans" means Term Loans the rate of interest applicable to which is
based upon the Alternate Base Rate.
"Additional Lenders" has the meaning set forth in Section 9.13.
"Administrative Agent" means [Bank], in its capacity as administrative
agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Guarantees" means the collective reference to each guarantee
agreement executed and delivered by a Guarantor, substantially in the form of
Exhibit D, as the same may be amended, supplemented or otherwise modified from
time to time.
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means a per annum rate equal to (a) 2.50% in the case
of Eurodollar Loans and (b) 1.50% in the case of ABR Loans.
"Assessment Rate" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined in good faith by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
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"Assignee" has the meaning set forth in Section 9.4(b).
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Available Commitment" means, as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment over (b) such Lender's
Credit Exposure.
"Available Excess Investment Commitment Amount" means, as to any Lender at
any time, an amount equal to the excess, if any of (a) such Lender's Investment
Commitment Amount over (b) such Lender's Credit Exposure.
"Base CD Rate" means the sum of (a) the Three Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrower" means HMTF Bridge Partners, L.P., a Delaware limited
partnership.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City or Dallas, Texas are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term Business Day shall also exclude any day on which banks
are not open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including any limited liability company interests in a limited liability
company, any limited or general partnership interests in a partnership, and any
and all warrants, rights or options to purchase any of the foregoing.
"Change in Control" means any of the following events: (a) Xxxxx Muse, its
principals or Affiliates cease to own of record and beneficially a majority of
the economic interests in the Borrower and the power, directly or indirectly, to
vote or direct the voting of Capital Stock having a majority of the power to
direct the management and policies of the Borrower, or (b) Xxxxx Muse, its
principals or Affiliates cease to Control each Guarantor.
["Bank"] means [Bank].
"Closing Date" means November 24, 1999.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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"Co-Investor" means the principals of Xxxxx Muse, their families and
employees of Xxxxx Muse who make an investment in the Borrower with respect to
the Borrower's investment in a New Portfolio Company.
"Co-Investment" means an investment by a Co-Investor in the Borrower in
connection with the Borrower's Investment in a New Portfolio Company in an
amount not less than 2.98% of the Borrower's total Investment in such New
Portfolio Company.
"Commitment" means, as to any Lender, the commitment of such Lender to make
Term Loans hereunder, in an amount so that such Lender's Credit Exposure does
not exceed such Lender's commitment hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.4 and (b) reduced or increased
from time to time as the result of an Assignment and Acceptance. The initial
amount of each Lender's Commitment is set forth on Schedule 2.1, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Control" means the possession of the power, directly or indirectly, to
vote more than 50% of the Capital Stock having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender's Term Loans at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Directly Owned Investment Party" means any Person in which the Borrower
directly makes an Investment which Person directly or indirectly makes the same
Investment (which shall be a Permitted Investment) in a New Portfolio Company.
"dollars" or "$" refers to lawful money of the United States.
"Eurodollar Base Rate" means with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate at
which [Bank] is offered dollar deposits at or about 10:00 A.M., New York, New
York time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"Eurodollar Loans" means Term Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day
(rounded upward to the nearest 1/100th of 1%) equal to (a) the Eurodollar Base
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
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"Eurodollar Tranche" the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Eurodollar Loans shall
originally have been made on the same day).
"Event of Default" has the meaning assigned to such term in Article 7.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" means the fees payable pursuant to Section 2.9.
"Fund I" means Hicks, Muse, Xxxx & Xxxxx Equity Fund, L.P.
"Fund II" means Hicks, Muse, Xxxx & Xxxxx Equity Fund II, L.P.
"Fund III" means Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P.
"Fund IV" means Hicks, Muse, Xxxx & Xxxxx Equity Fund IV, L.P and Hicks,
Muse, Xxxx & Xxxxx Private Fund IV, L.P.
"Funding Fee" has the meaning set forth in Section 2.9(a).
"GAAP" means generally accepted accounting principles in the United States
from time to time.
"Globix Investment" means an Investment in the Series A Convertible
Preferred Stock of Globix Corporation.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
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"Guarantors" means the collective reference to (a) each Affiliate of Xxxxx
Muse that holds carried interests in any New Portfolio Company (except to the
extent that a carried interest is attributable to an investment by any Specified
Fund in such New Portfolio Company) and (b) HM & Co. and each other Affiliate of
Xxxxx Muse that receives fee income (whether in the form of management fees,
transaction fees, investment banking fees, advisory fees or otherwise) from or
in respect of any New Fund, any New Portfolio Company or any Investment Party
(except to the extent that such fee income is attributable to an investment by
any Specified Fund in such New Portfolio Company, with any allocation of such
fee income attributable to Specified Fund(s) and New Fund(s) being made in a
manner equitable to the Lenders hereunder), in each case whether now existing or
subsequently formed.
"Xxxxx Muse" means HMTF Operating, L.P., a Texas limited partnership.
"HM & Co." means Xxxxx, Muse & Co. Partners, L.P., a Texas limited
partnership.
"Xxxxx Muse Letter Agreement" means the Letter Agreement dated as of the
date hereof between Xxxxx Muse and the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit G, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Interest Payment Date" means (a) as to any ABR Loan, the date which is the
Maturity Date, (b) as to any Eurodollar Loan, the last day of the Interest
Period applicable thereto and (c) as to any Term Loan, the date of any repayment
or prepayment made in respect thereof.
"Interest Period" means, as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or four weeks
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or four weeks
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day.
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"Investment" means the collective reference to any direct or indirect
investment in a New Portfolio Company by Borrower consistent with investments
made by, or permitted under, any Specified Fund.
"Investment Commitment Amount" means the amount on the date giving rise to
this calculation, as calculated by the Borrower and the Administrative Agent,
rounded upward to the nearest $500,000.00, that represents (i) the Term Loans
and (ii) all interest and fees previously accrued or which will be payable
pursuant to Sections 2.8 and 2.9 through the Maturity Date assuming no
prepayments pursuant to Section 2.5 prior to the Maturity Date (using for future
periods not covered by existing Interest Periods, the Eurodollar Rate available
on the date of any determination for a one week Interest Period plus the
Applicable Margin). The Investment Commitment Amount of any Lender at any time
shall be its Loan Percentage of the total Investment Commitment Amount.
"Investment Party" means any Person in which the Borrower directly or
indirectly makes an Investment which Person directly or indirectly makes the
same Investment (which shall be a Permitted Investment) in a New Portfolio
Company.
"Investment Term Loan" has the meaning set forth in Section 2.9(a).
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"Library Services Investment" means an Investment in the common stock of
Dynix Corporation.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means the collective reference to this Agreement, the
Affiliate Guarantees, the Pledge Agreement, the Xxxxx Muse Letter Agreement, the
Principal Agreements and the Notes.
"Loan Parties" means the collective reference to the Borrower, the
Guarantors, Xxxxx Muse and any other Person party to a Loan Document.
"Loan Percentage" means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender's Commitment, and, if the
Commitments have terminated, the aggregate outstanding principal amount of the
Term Loans represented by such Lender's Term Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (b) the rights of or benefits available to the Lenders under any
Loan Document.
"Maturity Date" means the earlier of (a) January 15, 2000 and (b) the first
date after the Closing Date on which Xxxxx Muse or any of its Affiliates shall
have entered into a credit facility (a
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"Replacement Credit Facility") for the purpose of providing interim financing
for investments to be made by one or more funds organized by Xxxxx Muse or any
of its Affiliates.
"New Fund" means (a) any investment funds formed after the date hereof and
(other than the Olympus Real Estate Fund III, L.P., any private fund raised in
connection with the Olympus Real Estate Private Fund III, L.P., Hicks, Muse,
Xxxx & Xxxxx Latin America Fund II, L.P., Hicks, Muse, Xxxx & Xxxxx Latin
America Private Fund II, L.P. or any other fund agreed to by the Administrative
Agent) sponsored, advised or managed by Xxxxx Muse or any of its Affiliates or
(b) any other Person which may acquire an Investment in an Investment Party or a
New Portfolio Company or any part thereof.
"New Portfolio Company" means any Person, having as some or all of its
shareholders, partners or members, as the case may be, directly or indirectly,
the Borrower, Affiliates of the Borrower, and, if applicable, one or more
Co-Investors.
"Non-Consenting Lender" has the meaning set forth in Section 2.16.
"Non-Excluded Taxes" has the meaning set forth in Section 2.13(a).
"Non-Funding Lender" has the meaning set forth in Section 2.11.
"Non-U.S. Lender" has the meaning set forth in Section 2.13(b).
"Note" has the meaning set forth in Section 2.3(e).
"Obligations" means the collective reference to the unpaid principal of and
interest on the Term Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent and the Lenders (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement after the maturity of the Term Loans and interest accruing at the then
applicable rate provided in this Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of this Agreement).
"Participant" has the meaning set forth in Section 9.4(e).
"Permitted Investments" means the collective reference to the Globix
Investment, the Library Services Investment, the Teligent Investment and other
Investments of the type as described in Section 4.2(h).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Pledge Agreement" means the Pledge Agreement executed and delivered by the
Borrower, substantially in the form of Exhibit F, as the same may be amended,
supplemented or otherwise modified from time to time.
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"Prime Rate" means the rate of interest per annum publicly announced from
time to time by [Bank] as its prime rate in effect at its principal office in
New York, New York; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to a customer.
"Principal Agreement" means the Principal Agreement executed and delivered
by each principal of Xxxxx Muse, substantially in the form of Exhibit H, as the
same may be amended, supplemented or otherwise modified from time to time.
"Register" has the meaning set forth in Section 9.4(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
partners and advisors of such Person and such Person's Affiliates.
"Replacement Credit Facility" has the meaning set forth in the definition
of "Maturity Date".
"Required Lenders" at any time, Lenders of more than 50% of (a) the
Commitments or (b) if the Commitments have been terminated, the aggregate unpaid
principal amount of the Term Loans.
"Requirement of Law" as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary or any officer holding a
position with similar obligations.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
Capital Stock 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 shares of Capital Stock of such Person or any option, warrant or
other right to acquire any such shares of Capital Stock of such Person.
"Specified Fund" means Fund I, Fund II, Fund III, Fund IV, Olympus Real
Estate Fund I, L.P., Olympus Real Estate Fund II, L.P., Hicks, Muse, Xxxx &
Xxxxx Latin America Fund, L.P., Hicks, Muse, Xxxx & Xxxxx Latin America Private
Fund, L.P., Hicks, Muse, Xxxx & Xxxxx Europe Fund, L.P. and Hicks, Muse, Xxxx &
Xxxxx Europe Private Fund, L.P.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Eurodollar Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans
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shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Teligent Investment" shall mean an Investment in the convertible preferred
stock of Teligent, Inc.
"Term Loans" has the meaning set forth in Section 2.1.
"Three Month Secondary CD Rate" means, for any day, the secondary market
rate for three month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for three
month certificates of deposit of major money center banks in New York City
received at approximately 12:00 noon, New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Ticking Fee" has the meaning set forth in Section 2.9(b).
"Transactions" means the execution, delivery and performance by the Loan
Parties of the Loan Documents, the borrowing of Term Loans and the use of the
proceeds thereof, the grant of the Liens under the Loan Documents and the making
of each Investment.
"Type" as to any Term Loans, its nature as an ABR Loan or a Eurodollar
Loan.
"United States" means the United States of America.
SECTION 1.2 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.3 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time.
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ARTICLE 2
Term Loans
SECTION 2.1 Term Loans. Subject to the terms and conditions hereof, each
Lender severally agrees to make one or more term loans (each, a "Term Loan") to
the Borrower on the Closing Date and on any Business Day thereafter prior to the
Maturity Date in an aggregate principal amount not to exceed such Lender's
Available Commitment. The initial amount of each Lender's Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The Term Loans may
from time to time be (a) Eurodollar Loans or (b) ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.6. Each Term Loan shall be made as part of a borrowing consisting of
Term Loans made by the Lenders ratably in accordance with their respective
Commitments. Amounts repaid or prepaid on account of the Term Loans may not be
reborrowed. The Term Loans shall be made only if the total Investment Commitment
Amounts shall not exceed the total Commitments.
SECTION 2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (including telephonic notice confirmed
in writing) (which notice must be received by the Administrative Agent (a) in
the case of Eurodollar Loans, not later than 11:00 a.m., New York, New York
time, three Business Days before the date of the anticipated borrowing and (b)
in the case of ABR Loans, not later than 12:00 noon, New York, New York time,
one Business Day prior to the date of the anticipated borrowing) requesting that
the Lenders make the Term Loans on such borrowing date and specifying the amount
to be borrowed. The Term Loans made on the Closing Date shall initially be ABR
Loans. Upon receipt of such notice the Administrative Agent shall promptly
notify each Lender thereof. Not later than 11:00 a.m., New York, New York time,
on the relevant borrowing date each Lender shall make available to the
Administrative Agent at its office specified in Section 9.1 an amount in
immediately available funds equal to the Term Loan to be made by such Lender.
The Administrative Agent shall credit the account of the Borrower on the books
of such office of the Administrative Agent with the aggregate of the amounts
made available to the Administrative Agent by the Lenders in immediately
available funds.
SECTION 2.3 Repayment of Loans; Evidence of Debt; etc. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of the Term Loans of
such Lender on the Maturity Date (or such earlier date on which the Term Loans
shall become due and payable pursuant to Article 7).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from the Term Loans of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.4(c), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Term Loans made hereunder, including each Term
Loan evidenced by a Note, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded, absent manifest error;
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provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Term Loans made to the Borrower by such Lender in accordance with
the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative Agent
by any Lender, the Borrower will execute and deliver to such Lender a promissory
note of the Borrower evidencing the Term Loans of such Lender, substantially in
the form of Exhibit E, with appropriate insertions as to date and principal
amount (a "Note").
SECTION 2.4 Termination and Reduction of Commitments. (a) Unless previously
terminated by the Borrower in accordance with this Agreement, the Commitments
shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$1,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.5, the sum of the Credit Exposures would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under Section 2.4(b) at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section 2.4(c)
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
SECTION 2.5 Prepayments. (a) The Borrower may at any time and from time to
time prepay the Term Loans, in whole or in part, without premium or penalty,
upon irrevocable notice (including telephonic notice confirmed in writing)
delivered to the Administrative Agent at least three Business Days prior thereto
in the case of Eurodollar Loans and at least one Business Day prior thereto in
the case of ABR Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each; provided that, if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 2.14. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice, together with accrued
interest thereon, shall be due and payable on the date specified therein;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.4, then such notice of prepayment may be revoked if such notice is revoked in
accordance with Section 2.4.
(b) If any Capital Stock shall be issued by, or any capital contribution
shall be made to, the Borrower or any Investment Party (other than a New
Portfolio Company and other than with respect to any Co-Investment) or if the
Borrower or any Investment Party (other than a New Portfolio Company and other
than ratably with respect to any Co-Investment) receives any Restricted Payment,
100% of the
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net cash proceeds thereof or of such Restricted Payment, in each case received
by the Borrower, shall be applied toward the prepayment in full of the Term
Loans, together with accrued interest thereon. All prepayments made by Borrower
in accordance with this Section 2.5(b) shall result in a pro rata reduction of
the Commitments.
(c) Upon any sale, assignment, conveyance, transfer or other disposition
(in whole or in part) of any interest in the Borrower (other than any sale,
assignment, conveyance, transfer or other disposition to any Co-Investor) or any
interest of the Borrower in any Investment Party or a New Portfolio Company,
100% of the net cash proceeds (taking into account any necessary escrows)
thereof received by the Borrower (less the ratable interest of any Co-Investors)
shall be applied on the date thereof toward the prepayment in full of the Term
Loans, together with accrued interest thereon. All prepayments made by Borrower
in accordance with this Section 2.5(c) shall result in a pro rata reduction of
the Commitments.
(d) The application of any prepayment pursuant to paragraphs (b) or (c) of
this Section 2.5 shall be made first to ABR Loans and second to Eurodollar
Loans. Amounts prepaid on account of the Term Loans may not be reborrowed.
(e) Notwithstanding anything to the contrary contained herein, in the event
that the Borrower would incur costs pursuant to Section 2.14 as a result of any
payment due as a result of any prepayment to be made pursuant to this Section
2.5, the Borrower, at its option, may deposit the amount of such payment with
the Administrative Agent, for the benefit of the Lenders who would have received
such payment, in a cash collateral account until the end of the applicable
Interest Period at which time such payment shall be made. The Borrower hereby
grants to the Administrative Agent, for the benefit of such Lenders, a security
interest in all amounts in which the Borrower has any right, title or interest
which are from time to time on deposit in such cash collateral account and
expressly waives all rights (which rights the Borrower hereby acknowledges and
agrees are vested exclusively in the Administrative Agent) to exercise dominion
or control over any such amounts.
SECTION 2.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that if such conversion of Eurodollar Loans is made
other than on the last day of an Interest Period with respect thereto, then the
Borrower shall pay the Lenders any amounts due pursuant to Section 2.14. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no ABR Loan may be converted into a
Eurodollar Loan when (i) any Event of Default has occurred and is continuing and
(ii) the Administrative Agent or the Required Lenders have determined in its or
their reasonable discretion not to permit such conversions. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their reasonable discretion not to permit such
continuations, and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of
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such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof.
SECTION 2.7 Minimum Amounts and Maximum Number of Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in minimum amounts of
$1,000,000 and incremental amounts of $100,000 in excess thereof and shall be
made pursuant to such elections so that, after giving effect thereto no more
than five Eurodollar Tranches shall be outstanding at any one time.
SECTION 2.8 Interest. (a) Each Eurodollar Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Term Loan, (ii) any
interest payable thereon or (iii) any Fees or any other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), the principal of the Term Loans and any such overdue interest, Fees
or other amount shall bear interest at a rate per annum which is (x) in the case
of principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section 2.8 plus 2% or (y) in the case of any
such overdue interest, Fees or other amount, the rate in effect at such time
pursuant to paragraph (b) of this Section 2.8 plus 2%, in each case from the
date of such non-payment until such overdue principal, interest, Fees or other
amount is paid in full (before as well as after receipt of a judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date and
the Maturity Date, provided that interest accruing pursuant to paragraph (c) of
this Section 2.8 shall be payable from time to time on demand.
(e) Whenever it is calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and, otherwise, interest shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Term
Loan resulting from a change in the Alternate Base Rate shall become effective
as of the opening of business on the day on which such change becomes effective.
The Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of the effective date and the amount of each such change in interest
rate.
(f) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate in respect of any Eurodollar Loan.
SECTION 2.9 Fees. (a) The Borrower agrees to pay to the Administrative
Agent, for the account of each Lender, a funding fee (the "Funding Fee") equal
to 1.0% of each Term Loan made to fund an Investment (and not for the payment of
interest and fees) (each borrowing of such a Term Loan, an "Investment Term
Loan"), payable on the date of the funding of each such Investment Term Loan.
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(b) The Borrower agrees to pay to the Administrative Agent, for the account
of each Lender, a ticking fee (the "Ticking Fee") in the amount of 0.5% per
annum on the average daily amount of the Available Excess Investment Commitment
Amount, which shall be paid by Borrower to the Administrative Agent on the
Maturity Date (or if this Agreement is terminated prior to the Maturity Date,
the date this Agreement is terminated).
SECTION 2.10 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination, in
the absence of manifest error, shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their Term
Loans during such Interest Period, the Administrative Agent shall give telecopy
or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (i) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (ii) any Term Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and
(iii) any outstanding Eurodollar Loans shall be converted to ABR Loans on the
last day of the Interest Period applicable thereto. Until such notice has been
withdrawn by the Administrative Agent (which the Administrative Agent agrees to
do when the circumstances that prompted the delivery of such notice no longer
exist), no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert ABR Loans to Eurodollar Loans.
SECTION 2.11 Pro Rata Treatment and Payments. (a) Each payment (including
each prepayment) by the Borrower on account of principal of and interest on, and
fees with respect to, the Term Loans shall be made pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the
Lenders.
(b) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York,
New York time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's office specified in
Section 9.1, in dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day (except, in the case of Eurodollar Loans, as otherwise
provided in clause (i) of the definition of "Interest Period"). In the case of
any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
(c) Notwithstanding that a Lender (a "Non-Funding Lender") has (x) failed
to make a Term Loan required to be made by it hereunder, and the Administrative
Agent has determined that such Lender is not likely to make such Term Loan or
(y) given notice to the Borrower or the Administrative Agent that it will not
make, or that it has disaffirmed or repudiated any obligation to make, any Term
Loans, in each case, by reason of the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 or otherwise, any payment made on
account of the principal of the Term Loans outstanding shall be made pro rata
according to the respective outstanding principal amounts of such
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Term Loans; and any payment made on account of interest on the Term Loans shall
be made pro rata according to the respective amounts of accrued and unpaid
interest and/or fees due and payable on such Term Loans with respect to which
such payment is being made. The Borrower agrees to give the Administrative Agent
such assistance in making any determination pursuant to this paragraph as the
Administrative Agent may reasonably request. Any such determination by the
Administrative Agent shall be conclusive and binding on the Lenders.
SECTION 2.12 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with respect
to this Agreement or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except Non-Excluded
Taxes covered by Section 2.13, the establishment of a tax based on the net
income of such Lender and changes in the rate of tax on the net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar Rate hereunder;
or
(iii) shall impose on such Lender any other condition; and the result of
any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or
maintaining Eurodollar Loans, or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such increased cost or reduced amount receivable. If the Borrower
notifies the Administrative Agent within five Business Days after any Lender
notifies the Borrower of any increased cost pursuant to the foregoing provisions
of this Section 2.12(a), the Borrower may covert all Eurodollar Loans of such
Lender then outstanding into ABR Loans in accordance with Section 2.6 and shall,
additionally, reimburse such Lender for any cost in accordance with Section
2.14.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower through the Administrative Agent of a
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) A certificate as to any additional amounts payable pursuant to this
Section 2.12 showing in reasonable detail the calculation thereof and certifying
that it is generally charging such costs to other similarly situated borrowers
under similar credit facilities submitted by any Lender to the Borrower through
the Administrative Agent shall be conclusive in the absence of manifest error,
provided that the determination of such amounts shall be made in good faith in a
manner generally consistent with
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such Lender's standard practices. The obligations of the Borrower pursuant to
this Section 2.12 shall survive the termination of this Agreement and the
payment of the Term Loans and all other amounts payable hereunder for a period
of nine months thereafter. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section 2.12, it shall promptly (and in any
event no later than 90 days after such Lender becomes entitled to make such
claim) notify the Borrower through the Administrative Agent of the event by
reason of which it has become so entitled.
SECTION 2.13 Taxes. (a) All payments made by the Borrower under this
Agreement, except as provided in this Section 2.13, shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of this Section, (ii) that are United States withholding taxes
imposed on amounts payable to such Lender at the time the Lender becomes a party
to this Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to Section 2.13(a) or
(iii) that are imposed as a result of an event occurring after the date the
Lender becomes a Lender other than a change in law or regulation or the
introduction of any law or regulation or a change in interpretation or
administration of any law. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section 2.13 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a person within the meaning of
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8BEN, an annual certificate representing, under penalty of perjury, that such
Non-U.S. Lender is not a "bank" for purposes of Section 881(c) of the Code, is
not a 10 percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Borrower and is not a controlled foreign corporation related to
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the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms on or before the expiration or obsolescence and
promptly upon the invalidity of any form previously delivered by such Non-U.S.
Lender and after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the Administrative Agent for filing and
completing such forms. Each Non-U.S. Lender agrees, to the extent legally
entitled to do so, upon reasonable request by the Borrower, to provide to the
Borrower (for the benefit of the Borrower and the Administrative Agent) such
other forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with respect to
payments of interest under this Agreement or the other Loan Documents, provided
that in determining the reasonableness of such a request, such Lender shall be
entitled to consider the cost of complying with such request (to the extent
unreimbursed by the Borrower) that would be imposed on such Lender. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this Section 2.13(b), a Non-U.S. Lender shall not be required to deliver any
form pursuant to this Section 2.13(b) that such Non-U.S. Lender is not legally
able to deliver.
(c) If the Administrative Agent or any Lender receives a refund in respect
of Non-Excluded Taxes paid by the Borrower, which in the good faith judgment of
such Lender is allocable to such payment, it shall promptly pay such refund,
together with any other amounts paid by the Borrower in connection with such
refunded Non-Excluded Taxes, to the Borrower, net of all out-of-pocket expenses
of such Lender incurred in obtaining such refund, provided, however, that the
Borrower agrees to promptly return such refund to the Administrative Agent or
the applicable Lender, as the case may be, if it receives notice from the
Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund.
SECTION 2.14 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss (excluding loss of profit) or expense
which such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, any margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section 2.14, showing in
reasonable detail the calculation thereof, submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder for a period of nine months thereafter.
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SECTION 2.15 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under Section 2.13(a), or if any adoption or change of
the type described in Section 2.12 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its reasonable discretion) to designate a different lending office
if the making of such a designation would reduce or obviate the need for the
Borrower to make payments under Section 2.13(a), or would eliminate or reduce
the effect of any adoption or change described in Section 2.12.
SECTION 2.16 Replacement of Lenders. If, at any time (a) the Borrower
becomes obligated to pay additional amounts described in Sections 2.12 or 2.13
as a result of any conditions described in such Sections, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Lender becomes a "Non-
consenting Lender" (as defined below in this Section 2.16) or (d) any Lender
becomes a Non-Funding Lender, then the Borrower may, on ten Business Days prior
written notice to the Administrative Agent and such Lender, replace such Lender
by causing such Lender to (and such Lender shall) assign pursuant to Section
9.4(b) all of its rights and obligations under this Agreement to a Lender or
other entity selected by the Borrower and reasonably acceptable to the
Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder; provided that (i) the Borrower shall have no right to
replace the Administrative Agent, (ii) neither the Administrative Agent nor any
Lender shall have any obligation to the Borrower to find a replacement Lender or
other such entity, (iii) in the event of replacement of a Non-consenting Lender
or a Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to clause (a) of this Section, in order for the Borrower to be entitled
to replace such a Lender, such replacement must take place no later than 180
days after (A) the date the Non-consenting Lender shall have notified the
Borrower and the Administrative Agent of its failure to agree to any requested
consent, waiver or amendment or (B) the Lender shall have demanded payment of
additional amounts under one of the Sections described in clause (a) of this
Section, as the case may be and (iv) in no event shall the Lender hereby
replaced be required to pay or surrender to such replacement Lender or other
entity any of the fees received by such Lender hereby replaced pursuant to this
Agreement. In the case of a replacement of a Lender to which the Borrower
becomes obligated to pay additional amounts pursuant to clause (a) of this
Section, the Borrower shall pay such additional amounts to such Lender prior to
such Lender being replaced and the payment of such additional amounts shall be a
condition to the replacement of such Lender. In the event that (x) the Borrower
or the Administrative Agent has requested the Lenders to consent to a departure
or waiver of any provisions of the Loan Documents or to agree to any amendment
thereto, (y) the consent, waiver or amendment in question requires the consent
of all Lenders and (z) the Required Lenders have agreed to such consent, waiver
or amendment, then any such Lender who does not agree to such consent, waiver or
amendment shall be deemed a "Non- consenting Lender". The Borrower's right to
replace a Non-Funding Lender pursuant to this Section 2.16 is, and shall be, in
addition to, and not in lieu of, all other rights and remedies available to the
Borrower against such Non-Funding Lender under this Agreement, at law, in
equity, or by statute.
ARTICLE 3
Representations and Warranties
The Borrower represents and warrants to the Lenders, on the Closing Date
and on the date of each borrowing hereunder, that:
SECTION 3.1 Organization; Powers. The Borrower is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation, has all requisite power
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and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.2 Authorization; Enforceability. The Transactions are within the
Borrower's powers and have been duly authorized by all necessary partnership
actions. The Loan Documents have been duly executed and delivered on behalf of
each Loan Party thereto and constitute a legal, valid and binding obligation of
each such party, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.3 Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the organizational or formation documents of any Loan Party
or any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, material agreement or other material instrument
binding upon any Loan Party or its assets, or give rise to a right thereunder to
require any payment to be made by any Loan Party, and (d) will not result in the
creation or imposition of any Lien on any asset of any Loan Party, other than
pursuant to the Loan Documents.
SECTION 3.4 Compliance with Laws and Agreements. Each Loan Party is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.5 Investment and Holding Company Status. The Borrower is not (a)
an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.6 Material Adverse Effect. There has been no development or event
which has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 3.7 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of any Loan Party, threatened by or against any Loan Party or
any Investment Party or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents, any Investment Party or any of
the transactions contemplated hereby or thereby, or (b) which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.8 Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with this
Agreement or any other Loan Document (but excluding all projections and pro
forma financial statements which shall have been prepared in good faith and
based upon reasonable assumptions) contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements herein
or therein not misleading.
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SECTION 3.9 Investments. (a) On and after the date of the making of each
Investment, each applicable Investment Party and each New Portfolio Company in
which such Investment is made will be duly organized or formed, validly existing
and in good standing under the laws of the jurisdiction of its organization or
formation, will have all requisite power and authority to carry out its business
as then conducted and proposed to be conducted and, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, will be qualified to do business in, and in
good standing in, every jurisdiction where such qualification is required. The
making of each Investment (i) will be within the power of Borrower and each
Investment Party and will be duly authorized by all necessary appropriate action
by Borrower and each applicable Investment Party, (ii) will not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as will have been obtained or made and be in
full force and effect, (iii) will not violate any applicable law or regulation
or any organizational document of the Borrower, any applicable Investment Party
and applicable New Portfolio Company or any order of any Governmental Authority,
(iv) will not violate or result in a default under any indenture, material
agreement or material other instrument binding upon the Borrower, the applicable
Investment Party and applicable New Portfolio Company or its assets, or give
rise to a right thereunder to require any payment to be made by the Borrower,
the applicable Investment Party or the applicable New Portfolio Company (other
than payments made simultaneously with such Investment), and (v) will not result
in the creation or imposition of any Lien on any asset of the Borrower, the
applicable Investment Party or New Portfolio Company except Liens under the
Pledge Agreement and Liens on the acquired assets to secure Indebtedness owed to
third party lenders incurred in connection with the making of an Investment in
the assets acquired thereby.
ARTICLE 4
Conditions Precedent
SECTION 4.1 The obligations of the Lenders to make the Term Loans hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.2):
(a) Loan Documents. The Administrative Agent (or its counsel) shall have
received (i) this Agreement, duly executed and delivered by the Borrower, (ii)
an Affiliate Guarantee, duly executed and delivered by each Guarantor in
existence on the Closing Date, (iii) the Pledge Agreement, duly executed and
delivered by the Borrower, together with all documents required to be delivered
thereunder, all certificates representing the Pledge Interests listed on
Schedule I thereto and stock powers endorsed in blank, (iv) the Xxxxx Muse
Letter Agreement, duly executed and delivered by each party thereto, and (v)
each of the Principal Agreements, duly executed and delivered by each party
thereto.
(b) Closing Certificate. The Administrative Agent shall have received, with
a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(c) Legal Opinion. The Administrative Agent shall have received the
executed legal opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Loan
Parties, substantially in the form of Exhibit B.
(d) Approvals. All governmental and third party approvals necessary or, in
the discretion of the Administrative Agent, advisable in connection with the
Transactions shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
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impose adverse conditions on the Borrower's ability to perform its obligations
under the Loan Documents.
(e) Fees. The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the date hereof.
(f) Filings. Any documents (including, without limitation, financing
statements) required to be filed, registered or recorded in order to create, for
the benefit of the Administrative Agent and the Lenders, a perfected, first
priority security interest shall have been properly prepared for filing,
registration or recording in each office in each jurisdiction in which such
filings, registrations and recordations are required to perfect such first
priority security interests created by the Pledge Agreement, and the
Administrative Agent shall be satisfied that such recordings and filings will be
completed promptly after the date hereof.
SECTION 4.2 Additional Conditions for Each Credit Event. The obligation of
each Lender to make Term Loans on the occasion of any borrowing (other than Term
Loans made for the payment of interest and Fees) is subject to the satisfaction
of the following conditions:
(a) Pledge Agreement. The Administrative Agent shall have received from the
Borrower a Pledge Supplement (as defined in the Pledge Agreement) to the Pledge
Agreement signed on behalf of the Borrower together with (i)(x) the stock
certificates, notes or other evidence of ownership representing the Investment
in any New Portfolio Company or Directly Owned Investment Party owned by the
Borrower or to be acquired concurrently with such borrowing or such issuance and
(y) undated stock or transfer powers, executed in blank, for any certificates
representing such Investment, executed and delivered by a Responsible Officer of
the Borrower or (ii) any necessary UCC filings signed on behalf of the Borrower.
(b) Representations and Warranties. The representations and warranties of
the Loan Parties set forth in this Agreement and the Loan Documents shall be
true and correct in all material respects on and as of the date of such
borrowing, except to the extent they relate to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier date.
(c) No Default. At the time of and immediately after giving effect to such
borrowing, no Default or Event of Default shall have occurred and be continuing.
(d) Certificate. With respect to each Term Loan the proceeds of which will
be used to fund an Investment, the Administrative Agent (which shall forward the
same to the Lenders) shall have received a certificate of the Borrower setting
forth in reasonable detail, and to the Borrower's knowledge, information with
respect to the following items: (i) a description of such Investment; (ii) the
total cost of such Investment; (iii) the amount, maturity, source and collateral
security for all debt, equity and other financing for such Investment; and (iv)
the name, form of organization and jurisdiction of organization of the
applicable New Portfolio Company and any Investment Party and the respective
direct ownership interests of the Borrower, each Investment Party and the New
Portfolio Company and their respective subsidiaries. In addition, the
Administrative Agent (which shall forward the same to the Lenders) shall receive
from the Borrower: (i) a copy of all purchase documents relating to the
applicable Investment and (ii) such other information reasonably requested by
the Lenders regarding the applicable Investment, the applicable New Portfolio
Company and the Investment Parties (if any).
(e) Co-Investment. The amount of the borrowing shall not equal more than
97.02% of the Borrower's Investment in a Directly Owned Investment Party or New
Portfolio Company as the case may be, and the Co-Investors shall have made the
Co-Investment.
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(f) Legal Opinion. The Administrative Agent shall have received an executed
legal opinion from the Loan Parties' outside counsel, as to all matters
reasonably requested by Administrative Agent including, without limitation, (a)
Regulation U and (b) perfection of the Administrative Agent's security interest
in the Investment pledged by the Borrower of either the applicable New Portfolio
Company or the applicable Directly Owned Investment Party, as the case may be.
(g) Management and Advisory Agreements. The Administrative Agent shall have
been provided a copy of each management and advisory agreement in respect of the
New Fund or an Investment in a New Portfolio Company on the date of such
borrowing.
(h) Investment. Each Investment shall be reasonably expected by the Loan
Parties to be suitable for purchase by New Fund (the determination of which will
include a determination that the Investment would have been suitable for
purchase by any Specified Fund and is consistent with past investments by the
Specified Funds).
Each borrowing shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(b) and (c) of this Section.
ARTICLE 5
Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated, the Borrower covenants and agrees with the Lenders that:
SECTION 5.1 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any Loan
Party or any Affiliate thereof that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect; and
(c) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.2 Existence; Conduct of Business. The Borrower will do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect (a) its legal existence and (b) the rights, licenses, permits, privileges
and franchises material to the conduct of its business.
SECTION 5.3 Payment of Obligations. The Borrower will pay its material
obligations, including material tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and
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(c) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.4 Compliance with Laws. The Borrower will comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5 Use of Proceeds. The proceeds of the Term Loans will be used
only to finance Permitted Investments in New Portfolio Companies, Investments in
Directly Owned Investment Parties (for the purpose of enabling the relevant
Directly Owned Investment Party to make a Permitted Investment) and the payment
of interest, fees and expenses due hereunder; provided that (a) Term Loans may
not be borrowed for the purpose of making any such Investment if the aggregate
Investment Commitment Amount (after giving effect to such Term Loan) would
exceed the aggregate Commitments and (b) the aggregate principal amount of Term
Loans borrowed in connection with such Investments shall be limited as follows:
(i) approximately $21,000,000 in the case of the Globix Investment, (ii)
approximately $25,000,000 in the case of the Library Services Investment, (iii)
approximately $52,000,000 in the case of the Teligent Investment and (iv)
approximately $12,000,000 in the case of any other Investments. No part of the
proceeds of any Term Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X.
SECTION 5.6 Additional Collateral. With respect to any Investment in a New
Portfolio Company or a Directly Owned Investment Party made by the Borrower
after the Closing Date, the Borrower will promptly (i) execute and deliver to
the Administrative Agent, for the benefit of the Lenders, such Pledge
Supplements to the Pledge Agreement or such other documents as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such New Portfolio Company or such Directly Owned Investment Party
which is owned by the Borrower, (ii) deliver to the Administrative Agent the
stock certificates, notes or other evidence of ownership representing the
Investment in such New Portfolio Company or such Directly Owned Investment Party
owned by the Borrower, together with undated stock or transfer powers, executed
and delivered in blank, for any stock certificates or notes representing such
Investment, by a Responsible Officer of the Borrower, (iii) take all actions
necessary or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements in such jurisdictions as may be required by the
Pledge Agreement or by law or as may be requested by the Administrative Agent
and (iv) if reasonably requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described in clauses
(i), (ii) and (iii) immediately preceding, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
SECTION 5.7 Financial Reporting. The Borrower will provide to the
Administrative Agent, for distribution to the Lenders, each of the financial
statements and related certificates and other business and financial information
distributed to the Borrower or its Affiliates by any New Portfolio Company, as
well as such additional information as the Lenders may reasonably request
hereunder.
SECTION 5.8 Additional Guarantors. Within ten (10) Business Days after the
formation of any Guarantor or the date such entity becomes a Guarantor within
the definition of Guarantor set forth in Section 1.1 hereof, the Borrower shall
cause such Guarantor to execute and deliver to the Administrative Agent an
Affiliate Guarantee substantially in the form of Exhibit D attached hereto.
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ARTICLE 6
Negative Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated, the Borrower covenants and agrees with the Lenders that:
SECTION 6.1 Indebtedness. The Borrower will not, and will not permit any
Investment Party to, create, incur, assume or permit to exist any Indebtedness,
except (a) Indebtedness created hereunder and under the other Loan Documents,
(b) nonconsensual obligations imposed by operation of law, (c) indemnification
obligations arising under the Borrower's constituent documents, and (d)
administrative expenses and taxes.
SECTION 6.2 Liens. The Borrower will not, and will not permit any
Investment Party to, create, incur, assume or permit to exist any Lien (other
than Liens created pursuant to the Pledge Agreement) on any property or asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof other than
(a) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower in accordance with GAAP, (b) Liens
in favor of banking institutions arising as a matter of law and encumbering the
deposits (including the right of setoff) held by such banking institutions in
the ordinary course of business and which are within the general parameters
customary in the banking industry, and (c) attachment and judgement Liens not
constituting an Event of Default.
SECTION 6.3 Fundamental Changes. (a) The Borrower will not, and will not
permit any Investment Party to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve.
(b) The Borrower will not engage in any business other than a business
consistent with its current operations and activities on the date of execution
of this Agreement.
SECTION 6.4 Restricted Payments. The Borrower will not, and will not permit
any Investment Party to, make any Restricted Payments (except that the
Investment Parties may make Restricted Payments to the Borrower to repay Term
Loans and other amounts due hereunder and the Borrower may make Restricted
Payments to a Co-Investor in respect of any Co-Investment amount with proceeds
funded by a Co-Investor).
SECTION 6.5 Sale of Assets. The Borrower shall not and will not permit any
Investment Party to sell, transfer or otherwise dispose of any of its property
other than for cash (yielding net proceeds) representing at least Borrower's or
such Investment Party's cost of such property (including, without limitation,
any interest and fees relating thereto), the net proceeds (less the ratable
interest of any Co-Investors and any necessary escrows) of which (to the extent
attributable to the Investment) are distributed to the Borrower to repay the
Term Loans.
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ARTICLE 7
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Term Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Term Loan or to pay
any Fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under or in connection with this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf of
any Loan Party in or in connection with any Loan Document or any amendment or
modification thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.2(a) or Article 6 or any Guarantor shall
fail to observe or perform any covenant, condition or agreement contained in
Section 10(a)(i) or (d) of its Affiliate Guarantee;
(e) any Loan Party shall fail to observe or perform any covenant, condition
or agreement contained in any Loan Document (other than those specified in
clause (a), (b), (c), (d) or (g) of this Article), and such failure shall
continue unremedied for a period of 30 days;
(f) any Loan Party, Investment Party, or any New Portfolio Company shall
(i) default in making any payment of any principal of or interest on any
Indebtedness (including any Guarantee, but excluding the Term Loans and
Guarantees pursuant to the Affiliate Guarantees) beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee) to become payable; provided that a default, event or
condition described in clause (i) or (ii) of this paragraph (f) shall not at any
time constitute an Event of Default under this Agreement unless, at such time,
one or more defaults, events or conditions (without duplication as to the same
item of Indebtedness) of the type described in clauses (i) and (ii) of this
paragraph (f) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $500,000 in
the case of the Borrower or $10,000,000 in the case of any New Portfolio
Company, Investment Party or any other Loan Party; or
(g) (i) any Loan Party, Investment Party, or any New Portfolio Company
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or
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seeking reorganization, windingup, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Loan Party, Investment
Party or any New Portfolio Company shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Loan
Party, Investment Party or any New Portfolio Company, any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Loan Party, Investment Party or any New
Portfolio Company any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) any Loan
Party shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) any Loan Party, Investment Party or any New Portfolio
Company shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(h) one or more judgments or decrees shall be entered against any Loan
Party, Investment Party or New Portfolio Company involving in the aggregate a
liability (not paid or fully covered by insurance as to which the relevant
insurance company has not denied coverage) of $500,000 or more in the case of
the Borrower and $10,000,000 or more in the case of any New Portfolio Company,
Investment Party or any other Loan Party, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
(i) any Loan Document shall, at any time, cease to be in full force and
effect (unless released by the Administrative Agent at the direction of the
Required Lenders or as otherwise permitted under this Agreement or the other
Loan Documents) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Loan Party; or
(j) any Person constituting a "Guarantor" shall not be a party to an
Affiliate Guarantee within ten Business Days after such Person has been
organized or formed;
(k) a Change in Control shall occur; or
(l) any Investment Party shall fail to distribute any payment made to it on
account of any Investment (net of reasonable expenses and reasonably required
escrows);
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, declare the Term Loans
then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable) and the Commitments to be terminated, and thereupon the
principal of the Term Loans so declared to be due and payable, together with
accrued interest thereon and all other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (g) of this Article, the principal of the Term Loans then outstanding,
together with accrued interest thereon and all other obligations of the Borrower
accrued hereunder, shall automatically become due and payable and the
Commitments shall be automatically terminated, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; and at any
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time thereafter during the continuance of such event, the Administrative Agent
may exercise all of its rights and remedies under the Pledge Agreement in
accordance with all applicable laws.
ARTICLE 8
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any Loan Party or any Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 4 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The
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Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which successor shall be approved by the Borrower (which
approval shall not be unreasonably withheld or delayed). If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank
reasonably acceptable to the Borrower. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. Any fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.3 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE 9
Miscellaneous
SECTION 9.1 Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows:
(a) if to the Borrower, to it c/o HMTF Operating, Inc., 000 Xxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxxx X. Xxxxxx, Xx. (Telecopy
No. 214-740-7313);
(b) if to the Administrative Agent, to [Bank]; and
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(c) if to any Lender, to it at its address (or telecopy number) set forth
in an administrative questionnaire delivered to the Administrative Agent and as
otherwise notified in writing to the Borrower.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.2 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Term Loan
shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither any Loan Document nor any provision thereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Required Lenders and each affected Loan Party; provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the amount of, or extend any
scheduled date for payment of, any principal or interest in respect of the Term
Loans, without the written consent of each Lender directly affected thereby,
(iii) change any of the provisions of this Section or the definition of
"Required Lenders" without the written consent of each Lender, (iv) release any
Loan Party from its obligations under the Loan Documents without the written
consent of each Lender (except upon payment in full in cash of the Obligations)
or (v) release all or substantially all of the collateral (except as expressly
provided in the Loan Documents) under the Affiliate Guarantees and the Pledge
Agreement (provided that a partial release of collateral thereunder shall
require the consent of the Required Lenders); provided, further, that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay
or cause to be paid (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the administration
of this Agreement or any amendments, modifications or waivers of the provisions
hereof and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including in connection with any workout, restructuring or
negotiations in respect thereof, the reasonable fees and disbursements of
counsel to the Administrative Agent and after the occurrence and during the
continuance of an Event of Default a single counsel to the Lenders collectively.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
reasonable the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the
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execution or delivery of the Loan Documents or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their respective
obligations under the Loan Documents or the consummation of the Transactions or
any other transactions contemplated by the Loan Documents, (ii) any Term Loan or
the use of the proceeds therefrom, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or, in the case of any
indemnified liabilities arising out of this Agreement or the other Loan
Documents, from the material breach by any such Indemnitee of this Agreement or
the other Loan Documents, as the case may be; provided that, for purpose of
clarity, no provision of this paragraph (b) shall be deemed to negate Section
9.3(a)(ii) to the extent that it provides that after the occurrence and during
the continuance of an Event of Default, the Lenders shall be reimbursed for a
single counsel.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent, each Lender severally agrees to pay to
the Administrative Agent such Lender's Loan Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Term Loan or the use of the proceeds thereof.
(e) The agreements in this Section 9.3 shall survive repayment of the Loans
and all other amounts payable hereunder.
SECTION 9.4 Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent 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 and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees a portion of its rights
and obligations under this Agreement (an "Assignee"); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower (such consent not to be unreasonably withheld) and the
Administrative Agent (the consent of the Administrative Agent may be withheld in
its sole discretion) must give their prior written consent to such assignment,
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment and Term Loans, the amount of the Term Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) the parties to each assignment
shall
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execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $4,000 (provided, however, if
the Borrower requests the replacement of any Lender pursuant to Section 2.16
hereof, the Borrower shall pay such processing and recordation fee, which shall
be funded with the proceeds of the Term Loans), and (iv) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire; provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (g) of Article 7 has occurred and is continuing. Upon
acceptance and recording pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.3). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York, New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Term Loans whether or not evidenced by a Note owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. Any
assignment of any Loan whether or not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all or
part of a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled".
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed administrative
questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower but with the
consent of the Administrative Agent (the consent of the Administrative Agent may
be withheld in its sole discretion) sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Term 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 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
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provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.12,
2.13 and 2.14 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section; provided that,
in the case of Section 2.13, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.5 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Term
Loans, regardless of any investigation made by any such other party or on its
behalf.
SECTION 9.6 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts and by facsimile (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate agreements with respect to Fees constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof.
SECTION 9.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.8 Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender is hereby authorized at any time and from time to
time, 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 and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
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(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.1. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each Lender agrees to keep information
obtained by it pursuant hereto and the other Loan Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents or affiliates
who are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender on a non-confidential basis from any source or such information that is
in the public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order
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or process (provided that notice of such requirement or order shall be promptly
furnished to the Borrower unless such notice is legally prohibited) or requested
or required by bank, securities or investment company regulations or auditors or
any administrative body or commission to whose jurisdiction such Lender may be
subject, (d) to actual or prospective assignees or Participants who agree to be
bound by the provisions of this Section 9.12, (e) to the extent required in
connection with any litigation between any Loan Party and any Lender with
respect to the Term Loans or this Agreement and the other Loan Documents or (f)
with the Borrower's prior written consent. The agreements in this Section 9.12
shall survive repayment of the Term Loans and all other amounts payable
hereunder. Each of the parties hereto (each, a "Document Party") agrees to keep
confidential this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby; provided that nothing herein shall prevent any
Document Party from disclosing such information (a) to any other Document Party
or any Affiliate of any Document Party, or any officer, director, employee,
agent, or advisor of any Document Party or Affiliate of any Document Party, (b)
to any other Person if reasonably incidental to the administration of the credit
facility provided herein, (c) as required by any law, rule, or regulation, (d)
upon the order of any court or administrative agency, (e) upon the request or
demand of any regulatory agency or authority, (f) to any New Portfolio Company
(or prospective New Portfolio Company) or any officer, director, employee,
agent, or advisor of any Document Party or Affiliate of such New Portfolio
Company in connection with a proposed Investment by the Borrower in such New
Portfolio Company, (g) in connection with any litigation to which such Document
Party or any of its Affiliates may be a party, or (h) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Loan Document.
SECTION 9.13 Syndication. The Borrower agrees that the Administrative Agent
has the right to syndicate the Commitments and the Term Loans at any time or
from time to time to a group of financial institutions (the "Additional
Lenders") identified by the Administrative Agent in consultation with the
Borrower, if the Administrative Agent and its affiliates determine to syndicate
the Commitments and the Term Loans. The Borrower agrees to actively assist the
Administrative Agent and its affiliates in completing a syndication satisfactory
to the Administrative Agent and the Borrower, including (a) using commercially
reasonable efforts to ensure that the syndication efforts benefit materially
from the Borrower's lending and equity relationships, (b) direct contact between
the Borrower and any Additional Lenders, (c) furnishing, or, as the
Administrative Agent may request, assisting in the preparation of, information,
projections and marketing materials to be used in connection with the
syndication and (d) the hosting, with the Administrative Agent and its
affiliates, of one or more meetings of any Additional Lenders. The
Administrative Agent and its affiliates would manage all aspects of the
syndication, in consultation with the Borrower, including decisions as to the
selection of institutions to be approached and when they will be approached,
when their commitments will be accepted, which institutions will participate,
the allocations of the commitments among any Additional Lenders and the amount
and distribution of fees among any Additional Lenders. The Borrower acknowledges
that the information the Borrower may be asked to furnish to the Administrative
Agent and its affiliates and to any Additional Lenders may include sensitive
competitive information, and the Administrative Agent and its affiliates agree
to take appropriate and customary confidentiality precautions with respect
thereto.
39
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
HMTF BRIDGE PARTNERS, L.P., a Delaware limited
partnership
By: HMTF BRIDGE PARTNERS, LLC, a
Texas limited liability company
/s/ Xxxxxx X. Xxx
-----------------------------------------
Xxxxxx X. Xxx
Chief Financial Officer
Address for Notices:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: (000) 000-0000
40
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[Bank],
as Administrative Agent and as a Lender
By: /s/ [Bank]
-------------------------------------
Name: [Bank]
Title: Vice President
41
SCHEDULE 2.1
==================================================================
LENDER COMMITMENT
------------------------------------------------------------------
[Bank] $110,000,000.00
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TOTAL COMMITMENTS $110,000,000.00
==================================================================
