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[Published CUSIP Number: ________________]
CREDIT AGREEMENT
Dated as of October 25, 2004
among
GTECH CORPORATION,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
CALYON NEW YORK BRANCH
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers,
CALYON NEW YORK BRANCH,
KEYBANK NATIONAL ASSOCIATION,
THE BANK OF NOVA SCOTIA,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Syndication Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Book Manager
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ARTICLE I
Definitions and Accounting Terms
1.1. Definitions...........................................................1
1.2. Rules of Interpretation..............................................24
1.3. Rounding.............................................................25
1.4. Times of Day.........................................................25
1.5. Letter of Credit Amounts.............................................25
1.6. Exchange Rates; Currency Equivalents.................................26
1.7. Additional Alternative Currencies....................................26
1.8. Change of Currency...................................................26
ARTICLE II
The Credit Facilities
2.1. Revolving Loans......................................................27
2.2. Use of Proceeds......................................................29
2.3. Notes................................................................29
2.4. Swing Line...........................................................30
ARTICLE III
Letters of Credit
3.1. Letters of Credit....................................................31
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options................................................40
4.2. Conversions and Elections of Subsequent Interest Periods.............41
4.3. Payment of Interest..................................................41
4.4. Prepayments..........................................................42
4.5. Payments Generally; Administrative Agent's Clawback..................42
4.6. Fees.................................................................43
4.7. Pro Rata Payments....................................................44
4.8. Computation of Rates and Fees........................................45
4.9. Sharing of Payments by Lenders.......................................45
4.10. Deficiency Advances; Failure to Purchase Lender Participations.......46
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return....................................46
5.2. Limitation on Types of Loans.........................................48
5.3. Illegality...........................................................48
5.4. Treatment of Affected Loans..........................................49
5.5. Compensation.........................................................49
5.6. Taxes................................................................50
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance........................................52
6.2. Conditions of Revolving Loans and Letter of Credit...................55
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority...........................................56
7.2. Loan Documents.......................................................57
7.3. Solvency.............................................................57
7.4. Material Subsidiaries and Stockholders...............................57
7.5. Compliance with Laws.................................................57
7.6. Financial Condition..................................................58
7.7. Title to Properties..................................................58
7.8. Taxes................................................................58
7.9. Other Agreements.....................................................59
7.10. Litigation...........................................................59
7.11. Margin Stock.........................................................59
7.12. Regulated Company....................................................59
7.13. Patents, Etc.........................................................59
7.14. No Untrue Statement..................................................60
7.15. No Consents, Etc.....................................................60
7.16. Employee Benefit Plans...............................................60
7.17. No Default...........................................................61
7.18. Environmental Laws...................................................61
7.19. Employment Matters...................................................62
7.20. RICO; Foreign Corrupt Practices Act..................................62
7.21. Foreign Assets Control Regulations, Etc..............................62
7.22. Insurance............................................................62
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc...............................................63
8.2. Maintain Properties..................................................65
8.3. Existence, Qualification, Etc........................................65
8.4. Payments and Obligations.............................................65
8.5. Insurance............................................................66
8.6. True Books...........................................................66
8.7. Right of Inspection..................................................66
8.8. Observe all Laws.....................................................66
8.9. Pay Indebtedness to Lenders and Perform Other Covenants..............66
8.10. Covenants Extending to Other Persons.................................67
8.11. Officer's Knowledge of Default.......................................67
8.12. Suits or Other Proceedings...........................................67
8.13. Notice of Environmental Complaint or Condition.......................67
8.14. Environmental Compliance.............................................67
8.15. Intentionally Omitted................................................67
8.16. Further Assurances...................................................67
8.17. Employee Benefit Plans...............................................68
8.18. Accounting Policies and Financial Reporting Practices................69
8.19. New Subsidiaries; New Guarantors.....................................69
8.20. Use of Proceeds......................................................70
8.21. GTECH Reinsurance....................................................70
8.22. Debt Rating..........................................................70
ARTICLE IX
Negative Covenants
9.1. Financial Covenants..................................................70
9.2. Liens................................................................70
9.3. Guaranties...........................................................72
9.4. Disposition of Assets................................................72
9.5. Investments; Acquisitions............................................72
9.6. Fundamental Changes..................................................73
9.7. Dividends, Redemptions and Other Payments............................74
9.8. Transactions with Affiliates.........................................74
9.9. Benefit Plans........................................................74
9.10. Fiscal Year..........................................................75
9.11. Dissolution, Etc.....................................................75
9.12. Change in Control....................................................75
9.13. GTECH Reinsurance....................................................75
9.14. Total Subsidiary Indebtedness........................................75
9.15. Synthetic Lease Obligations..........................................75
9.16. Limitations on Sales and Leasebacks..................................75
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default....................................................76
10.2. Agent to Act.........................................................80
10.3. Cumulative Rights....................................................80
10.4. No Waiver............................................................80
10.5. Allocation of Proceeds...............................................81
ARTICLE XI
Administrative Agent
11.1. Appointment and Authority............................................81
11.2. Rights as a Lender...................................................81
11.3. Exculpatory Provisions...............................................82
11.4. Reliance by Administrative Agent.....................................83
11.5. Delegation of Duties.................................................83
11.6. Resignation of Administrative Agent..................................83
11.7. Non-Reliance on Administrative Agent and Other Lenders...............84
11.8. No Other Duties, Etc.................................................84
11.9. Administrative Agent May File Proofs of Claim........................84
11.10. Guaranty Matters.....................................................85
ARTICLE XII
Miscellaneous
12.1. Amendments, Etc......................................................85
12.2. Notices; Effectiveness; Electronic Communication.....................86
12.3. No Waiver; Cumulative Remedies.......................................88
12.4. Expenses; Indemnity; Damage Waiver...................................88
12.5. Payments Set Aside...................................................90
12.6. Successors and Assigns...............................................90
12.7. Treatment of Certain Information; Confidentiality....................94
12.8. Right of Setoff......................................................94
12.9. Interest Rate Limitation.............................................95
12.10. Counterparts; Integration; Effectiveness.............................95
12.11. Survival of Representations and Warranties...........................95
12.12. Severability.........................................................96
12.13. Replacement of Lenders...............................................96
12.14. Governing Law; Jurisdiction; Etc.....................................96
12.15. Waiver of Jury Trial.................................................97
12.16. USA PATRIOT Act Notice...............................................98
C682070
EXHIBIT A APPLICABLE COMMITMENT PERCENTAGES.....................A-1
EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE.....................B-1
EXHIBIT C NOTICE OF APPOINTMENT (OR REVOCATION) OF
AUTHORIZED REPRESENTATIVE.............................C-1
EXHIBIT D-1 FORM OF BORROWING NOTICE............................D-1-1
EXHIBIT D-2 FORM OF BORROWING NOTICE--SWING LINE LOANS...........D-2-1
EXHIBIT E FORM OF INTEREST RATE SELECTION NOTICE.................E-1
EXHIBIT F-1 FORM OF REVOLVING NOTE...............................F-1-1
EXHIBIT F-2 FORM OF SWING LINE NOTE..............................F-2-1
EXHIBIT G FORM OF OPINION OF BORROWER'S COUNSEL..................G-1
EXHIBIT H COMPLIANCE CERTIFICATE.................................H-1
EXHIBIT I FORM OF FACILITY GUARANTY..............................I-1
Schedule 1.1 Existing Letters of Credit.............................S-1
Schedule 7.4 Material Subsidiaries..................................S-2
Schedule 7.6 Indebtedness...........................................S-3
Schedule 7.7 Liens..................................................S-4
Schedule 7.8 Tax Matters............................................S-5
Schedule 7.18 Environmental Matters .................................S-6
Schedule 7.19 Employment Matters ....................................S-7
Schedule 7.22 Insurance .............................................S-8
Schedule 12.2 Administrative Agent's Principal Office; Certain
Addresses for Notice ................................S-9
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of October 25, 2004,
among GTECH CORPORATION, a Delaware corporation (the "Borrower"), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender, L/C Issuer and a Lender.
The Borrower has requested that the Lenders make available to the Borrower
a revolving credit facility of up to $500,000,000, the proceeds of which are to
be used to refinance and replace the Borrower's Existing Senior Credit Facility
(as defined below) and for working capital and other general corporate purposes
and which shall include a letter of credit facility of up to $100,000,000 for
the issuance of standby and commercial letters of credit and a swing line
facility of up to $40,000,000, and the Lenders are willing to make such
revolving credit and letter of credit facilities available to the Borrower upon
the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
Definitions and Accounting Terms
1.1. Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (a) a controlling equity interest in
another Person (including the purchase of an option, warrant or convertible or
similar type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (b) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent appointed pursuant to Section 11.6.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Advance" means a borrowing under the Revolving Credit Facility consisting
of a Base Rate Loan or a Eurodollar Rate Loan.
"Affected Loans" shall have the meaning set forth in Section 5.4 hereof.
"Affected Type" shall have the meaning set forth in Section 5.4 hereof.
"Affiliate" means, with respect to any Person, another Person (a) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with the Person specified; or (b)
which beneficially owns or holds fifteen percent (15%) or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, fifteen percent (15%) or more of the equity interest) of the Person
specified; or (c) fifteen percent (15%) or more of any class of the outstanding
voting stock (or in the case of a Person which is not a corporation, fifteen
percent (15%) or more of the equity interest) of which is beneficially owned or
held by the Person specified. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting stock, by contract
or otherwise.
"Alternative Currency" means each of Euro, Sterling, Yen, Swiss Franc,
Australian Dollars, Moroccan Dirham and Mexican Peso and each other currency
(other than Dollars) that is approved in accordance with Section 1.7.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the L/C Issuer at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.
"Applicable Commitment Percentage" means, for each Lender at any time, a
fraction (expressed as a percentage), with respect to the Revolving Credit
Facility (including Lender Participations in any Swing Line Loan and the Letter
of Credit facility), the numerator of which shall be such Lender's Revolving
Credit Commitment and the denominator of which shall be the Total Revolving
Credit Commitment, which Applicable Commitment Percentage for each Lender as of
the Closing Date is as set forth in Exhibit A; provided that the Applicable
Commitment Percentage of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with Section 12.6.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or an Affiliate of such Lender) as such Lender may from
time to time specify to the Administrative Agent and the Borrower by written
notice in accordance with the terms hereof as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" means, from time to time, the following percentages per
annum, based upon the Debt Rating as set forth below:
Applicable Margin
Applicable Margin
for Eurodollar Rate
Loans, Swingline
Loans and Utilization Fee
Pricing Level Debt Ratings S&P/Moody's Facility Fee Letter of Credit Fee (= 50% usage)
- -------------- ------------------------- ------------------ -------------------------- -------------------
1 A / A2 or better 0.08% 0.245% 0.05%
- -------------- ------------------------- ------------------ -------------------------- -------------------
2 A- /A3 0.10% 0.35% 0.05%
3 BBB+ / Baa1 0.125% 0.425% 0.075%
4 BBB / Baa2 0.150% 0.475% 0.125%
5 BBB- / Baa3 or worse 0.225% 0.625% 0.150%
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "Debt Ratings") of
the Parent's non-credit-enhanced, senior unsecured long-term debt; provided
that if a Debt Rating is issued by each of the foregoing rating agencies,
then the higher of such Debt Ratings shall apply (with the Debt Rating for
Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5
being the lowest), unless there is a split in Debt Ratings of more than one
level, in which case the Pricing Level that is one level higher than the
Pricing Level of the lower Debt Rating shall apply.
Initially, the Applicable Margin shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 6.1(a)(xv).
Thereafter, each change in the Applicable Margin resulting from a publicly
announced change in the Debt Rating shall be effective, in the case of an
upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof pursuant to Section 8.22 and ending
on the date immediately preceding the effective date of the next such change
and, in the case of a downgrade, during the period commencing on the date of the
public announcement thereof and ending on the date immediately preceding the
effective date of the next such change.
"Applicable Time" means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the L/C Issuer to be necessary for
timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Acceptance" shall mean an Assignment and Acceptance in the
form of Exhibit B (with blanks appropriately filled in) delivered to the
Administrative Agent in connection with an assignment of a Lender's interest
under this Agreement pursuant to Section 12.6.
"Australian Dollars" means the lawful currency of Australia.
"Authorized Representative" means any of the President, Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, Treasurer,
Controller, and Assistant Treasurer of the Borrower or any other Person
expressly designated by the Chief Financial Officer or the Treasurer of the
Borrower (or the Board of Directors of the Borrower) as an Authorized
Representative of the Borrower, as set forth from time to time in a certificate
in the form of Exhibit C.
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus one-half of one percent
(0.5%) and (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate". The "prime rate" is a
rate set by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the Base Rate due
to a change in the prime rate or the Federal Funds Rate shall be effective at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan for which the rate of interest is determined
by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing Line Loan made
to pay the Swing Line Lender in respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve System (or any
successor body).
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit Facility
or a Swing Line Loan, in the forms of Exhibits D-1 and D-2, respectively.
"Business Day" means, (a) except as expressly provided in clause (b), any
day which is not a Saturday, Sunday or a day on which banks in the States of New
York and North Carolina are authorized or obligated by law, executive order or
governmental decree to be closed and, (b) with respect to the selection,
funding, interest rate, payment, and Interest Period of any Eurodollar Rate
Loan, any day which is a Business Day, as described above, and on which the
relevant international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York, New York
and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries, for any period, expenditures or costs for fixed or capital assets
made by the Borrower and its Subsidiaries during such period which in accordance
with GAAP applied on a Consistent Basis are characterized as capital
expenditures.
"Capital Lease" means each lease which has been or should be capitalized in
accordance with GAAP as in effect from time to time including Statement No. 13
of the Financial Accounting Standards Board and any successor thereof.
"Captive Insurance Payments" means (a) payments of capitalization
requirements by the Parent to GTECH Reinsurance and (b) payments of premiums by
the Parent, the Borrower and/or its Subsidiaries, each in connection with the
Captive Insurance Program.
"Captive Insurance Program" means the captive insurance program and related
undertakings established and maintained on a commercially reasonable basis by
the Parent and/or the Borrower (for itself and its Subsidiaries) with GTECH
Reinsurance, including the making of loans from GTECH Reinsurance to the Parent,
the Borrower and/or its Subsidiaries.
"Cash Collateralize" has the meaning specified in Section 3.1(g).
"Change of Control" means, at any time:
(a) any "person" or "group" (each as used in Sections 13(d)(3) and 14(d)(2)
of the Exchange Act) either (i) becomes the "beneficial owner" (as defined in
Rule 13d-3 of the Exchange Act), directly or indirectly, of Voting Securities of
the Parent (or securities convertible into or exchangeable for such Voting
Securities) representing more than fifty percent (50%) of the combined voting
power of all Voting Securities of the Parent (on a fully diluted basis) or (ii)
otherwise has the ability, directly or indirectly, to elect a majority of the
board of directors of the Parent; or
(b) the Parent shall at any time cease to own all of the capital stock of
the Borrower.
"Closing Date" means the date as of which this Agreement is executed by the
Borrower, the Lenders and the Administrative Agent and on which the conditions
set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
"Compliance Certificate" has the meaning specified in Section 6.1(a)(xi).
"Consistent Basis" in reference to the application of GAAP means the
accounting principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited financial
statements of the Borrower referred to as of the Closing Date in Section 7.6(a).
"Consolidated Assets" means, as of the date of determination, the total
assets of the Parent, the Borrower and its Consolidated Subsidiaries which would
be shown as assets on a consolidated balance sheet of the Parent as of such time
prepared in accordance with GAAP.
"Consolidated EBITDA" means, with respect to the Parent, the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of computation
thereof, the sum of, without duplication, (a) Consolidated Net Income excluding
any extraordinary gains or losses, plus (b) Consolidated Interest Expense, plus
(c) taxes on income, plus (d) amortization, depreciation and all other non-cash
expense items, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Interest Coverage Ratio" means, with respect to the Parent,
the Borrower and its Subsidiaries for any Four-Quarter Period ending on the date
of computation thereof, the ratio of (a) Consolidated EBITDA for such period to
(b) Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, with respect to any period of
computation thereof, the gross cash interest expense of the Parent, the Borrower
and its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Income" means, for any period of computation thereof, the
net income of the Parent, the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Tangible Assets" means Consolidated Assets excluding (a)
net intangible assets and (b) net goodwill of such Consolidated Assets.
"Consolidated Subsidiary" means, at any date, any Subsidiary the accounts
of which, in accordance with GAAP, are consolidated with those of the Parent in
its consolidated financial statements as of such date.
"Consolidated Total Debt Ratio" means, with respect to the Parent, the
Borrower and its Subsidiaries, the ratio of (a) Consolidated Total Indebtedness
at such date to (b) Consolidated EBITDA for the Four-Quarter Period ending on or
immediately prior to the date of computation thereof; provided, however, that
the calculation of Consolidated EBITDA for the purpose of establishing the
Consolidated Total Debt Ratio for each Fiscal Quarter of the Four-Quarter Period
ending next following the date of any Acquisition shall include the results of
operations of the Person or assets so acquired on a historical pro forma basis
as if such Acquisition had been consummated as of the first day of the
Four-Quarter Period ending on or immediately prior to the date of computation
thereof; and provided further, however, that the calculation of Consolidated
EBITDA for the purpose of establishing the Consolidated Total Debt Ratio for
each Fiscal Quarter of the Four-Quarter Period ending next following the date of
any Disposition shall exclude the results of operations of the Person or assets
so disposed of as if such Disposition occurred on the first day of the
Four-Quarter Period ending on or immediately prior to the date of computation
thereof.
"Consolidated Total Indebtedness" means, with respect to the Parent, the
Borrower and its Subsidiaries at any time as of which the amount thereof is to
be determined, the sum (without duplication) of (a)(i) Indebtedness for Money
Borrowed of the Parent, the Borrower and its Wholly-Owned Subsidiaries, (ii) all
direct guaranties by the Parent, the Borrower or any of its Wholly-Owned
Subsidiaries of non-consolidated Indebtedness of any Person and (iii) the
undrawn face amount of all outstanding letters of credit issued for the account
of the Parent, the Borrower or any of its Wholly-Owned Subsidiaries and all
obligations (to the extent not duplicative) arising under such letters of credit
and (b) the sum of the products of (i) the aggregate principal amounts of the
indebtedness of the types described in clauses (a)(i) through (iii) above
(unless the holder of such indebtedness has recourse expressly, structurally or
otherwise as a matter of law, to the Parent, the Borrower or any of its
Wholly-Owned Subsidiaries) of each Subsidiary which is not a Wholly-Owned
Subsidiary and (ii) the percentage of all equity interests in such Subsidiary
which is owned directly or indirectly by the Borrower and/or one or more of its
Wholly-Owned Subsidiaries; provided, however, that there shall be excluded from
the calculation of Consolidated Total Indebtedness (x) all Indebtedness
consisting of Capital Lease obligations incurred in connection with off-balance
sheet Sale and Leaseback Transactions, (y) guaranties by the Parent, the
Borrower or any of its Subsidiaries of non-consolidated Indebtedness of another
Person up to an aggregate principal amount of $10,000,000 and (z) the Customer
Prepayment Obligations.
"Consolidated Total Profits Before Tax" means, for any period, the total
profits before extraordinary gains and losses and before Federal, state, local
and foreign income or similar taxes of the Borrower and its Subsidiaries for
such period, as determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Contingent Obligation" of any Person means all contingent liabilities
required (or which, upon the creation or incurring thereof, would be required)
to be included in the consolidated financial statements (including footnotes) of
such Person in accordance with GAAP applied on a Consistent Basis, including
Statement No. 5 of the Financial Accounting Standards Board, and any obligation
of such Person guaranteeing any Indebtedness, dividend or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including obligations of such Person however incurred:
(a) to purchase such Indebtedness or other obligation or any property or
assets constituting security therefor;
(b) to advance or supply funds in any manner (i) for the purchase or
payment of such Indebtedness or other obligation, or (ii) to maintain a minimum
working capital, net worth or other balance sheet condition or any income
statement condition of the primary obligor;
(c) to grant or convey any lien, security interest, pledge, charge or other
encumbrance on any property or assets of such Person to secure payment of such
Indebtedness or other obligation;
(d) to lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner or holder of such
Indebtedness or obligation of the ability of the primary obligor to make payment
of such Indebtedness or other obligation; or
(e) otherwise to assure the owner of such Indebtedness or such obligation
of the primary obligor against loss in respect thereof.
"Continue", "Continuation", and "Continued" shall refer to the continuation
pursuant to Section 4.2 hereof of a Eurodollar Rate Loan of one Type as a
Eurodollar Rate Loan of the same Type from one Interest Period to the next
Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 4.2 of one Type of Loan into another Type of Loan.
"Core Business" of the Borrower or any of its Subsidiaries means (a) the
manufacture, sale, lease, delivery, installation, operation and/or maintenance
by the Borrower or any of its Subsidiaries of computers, computer terminals,
equipment and/or related hardware and software pertaining to the operation of
lotteries and/or similar games of chance and/or pari-mutuel installations
(including, without limitation, lotteries (on-line, off-line, passive ticket,
instant ticket, break-open ticket and video), bingo, race tracks, jai alai,
legalized bookmaking, off-track betting, casino, keno and sports betting
facilities), (b) any type of government or state benefits processing or
eligibility and the products and services related to such business, (c) any type
of commercial transaction processing, including debit, credit and bill payment
transactions, and the products and services related to such business, (d) any
type of information technology and the products and services related to such
business, (e) any type of communications services similar to that provided in
clauses (a) through (d) above and (f) the employment of any hardware or software
utilized in any of the business described in clauses (a) through (e) above
whether by sale, lease, license or service in either government or commercial
enterprises worldwide.
"Credit Parties" means, collectively, the Borrower and the Guarantors.
"Customer Prepayment Obligations" shall mean the obligations of the
Borrower to repay up to an aggregate amount of $35,000,000 in prepayments made
by customers of the Borrower pursuant to contracts between such customers and
the Borrower entered into in the ordinary course of the Core Business.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition which, with the giving or receipt of
notice or lapse of time or both, would constitute an Event of Default hereunder.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) with respect to each
Eurodollar Rate Loan, until the end of the Interest Period applicable thereto,
the Eurodollar Rate plus the Applicable Margin plus two percent (2%) per annum,
and thereafter at a rate of interest which shall be two percent (2%) per annum
above the Base Rate, (ii) with respect to Base Rate Loans, Swing Line Loans,
Unreimbursed Amounts, fees, and other amounts payable in respect of (x)
Obligations or (y) (except as otherwise expressly provided therein) the
obligations of any Credit Party other than the Borrower under any of the other
Loan Documents, the Base Rate plus the Applicable Margin, if any, plus two
percent (2%) per annum; (b) when used with respect to Letter of Credit Fees, a
rate of interest which shall be the Applicable Margin plus two percent (2%) per
annum; and (c) in any case, the maximum rate permitted by applicable law, if
lower.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Revolving Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one (1) Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one (1) Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Determination Date" means the last day of each Fiscal Quarter of the
Borrower.
"Disposition" has the meaning specified in Section 9.4.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the L/C Issuer at such time on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date) for the
purchase of Dollars with such Alternative Currency.
"Dollars" and the symbol "$" means dollars constituting legal tender for
the payment of public and private debts in the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized under
the laws of the United States of America, any state or territory thereof or the
District of Columbia.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include (w) the Borrower or any of the Borrower's Affiliates or Subsidiaries,
or(x) any direct competitor of the Borrower or any of its Subsidiaries with
respect to the Core Business of the Borrower or any such Subsidiary, (y) any
customer of the Borrower or any Subsidiary, or (z) any Person with whom the
Borrower or any Subsidiary is restricted from entering into transactions of the
type contemplated by this Agreement pursuant to applicable Laws or any contract.
"Eligible Securities" means all investment grade securities as determined
by the rating system of either S&P or Moody's, other securities not subject to
either such rating system which are of comparable investment grade risk profile
and any other class of securities previously approved in writing by the Required
Lenders.
"Employee Benefit Plan" means (a) any employee benefit plan, including any
Pension Plan, within the meaning of Section 3(3) of ERISA which (i) is
maintained for employees of the Borrower or any of its ERISA Affiliates, or any
Subsidiary or is assumed by the Borrower or any of its ERISA Affiliates, or any
Subsidiary in connection with any Acquisition or (ii) has at any time been
maintained for the employees of the Borrower, any current or former ERISA
Affiliate, or any Subsidiary, but excluding any employee benefit plan that has
been assumed by any other Person in connection with the sale of an ERISA
Affiliate or Subsidiary and under which neither the Borrower or any ERISA
Affiliate has any continuing liability under ERISA and (b) any plan,
arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary that provides retirement, deferred compensation, employee or retiree
medical or life insurance, severance benefits or any other benefit covering any
employee or former employee and which is administered under any Foreign Benefit
Law or regulated by any Governmental Authority other than the United States of
America.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"Environmental Laws" means any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating,
relating to, or imposing liability or standards of conduct concerning, any
environmental matters or conditions, environmental protection or conservation,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; the Resource Conservation and Recovery
Act, as amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all regulations
promulgated thereunder, and any other "Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and all rules and
regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any Person or trade or
business which is a member of a group which is under common control with the
Borrower, who together with the Borrower, is treated as a single employer within
the meaning of Section 414(b) and (c) of the Code.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = -------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for any Interest Period with respect to
a Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately
11:00 A.M., London time, two (2) Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period. If
such rate is not available at such time for any reason, then the
"Eurodollar Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 A.M. (London time) two (2) Business Days prior to the
commencement of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
(5) decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency liabilities").
The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the regulations promulgated thereunder.
"Existing Letters of Credit" means those Letters of Credit set forth in
Schedule 1.1 hereto.
"Existing Senior Credit Facility" means that certain $300,000,000 senior
credit facility made available to the Borrower pursuant to that certain Credit
Agreement dated as of June 22, 2001, among the Borrower, Bank of America, as
administrative agent, the lenders party thereto from time to time, The Bank of
Nova Scotia, as syndication agent, Credit Lyonnais New York Branch and Fleet
National Bank, as co-documentation agents, and BAS, as sole lead arranger and
sole book manager (as amended, restated, modified or supplemented prior to the
date hereof), and the other loan documents executed in connection therewith.
"Facility Fee" has the meaning specified in Section 4.6(a).
"Facility Guaranty" means (a) the Parent Guaranty and (b) each Guaranty
Agreement between one or more Guarantors and the Administrative Agent (whether
now existing or any Facility Guaranty Joinder Agreement hereafter delivered in
accordance with Section 8.19 hereof) for the benefit of the Administrative Agent
and the Lenders, substantially in the form of Exhibit I attached hereto,
delivered as of the Closing Date or thereafter pursuant to Section 8.19, as the
case may be, as the same may be amended, modified or supplemented from time to
time.
"Facility Guaranty Joinder Agreement" means each Guaranty Joinder
Agreement, substantially in the form thereof attached to the Facility Guaranty,
executed and delivered by any Person to the Administrative Agent for the benefit
of the Lenders pursuant to Section 8.19 or otherwise.
"Facility Termination Date" means such date as all of the following shall
have occurred: (a) the Borrower shall have permanently terminated the Revolving
Credit Facility and the Swing Line by payment in full of all Outstandings,
together with all accrued and unpaid interest, fees and other Obligations with
respect thereto, other than (i) the undrawn portion of Letters of Credit and
(ii) all letter of credit fees relating thereto accruing after such date (which
shall be payable solely for the account of the L/C Issuer) computed (based on
the interest rates and the Applicable Margin then in effect) on such undrawn
amounts to the respective expiry dates of the Letters of Credit, in each case as
have been fully Cash Collateralized in a manner satisfactory to the L/C Issuer;
(b) all Swap Agreements shall have been terminated, expired or cash
collateralized, (c) all Revolving Credit Commitments and Letter of Credit
Commitments shall have terminated or expired and (d) the Borrower shall have
fully, finally and irrevocably paid and satisfied in full all Obligations (other
than Obligations consisting of continuing indemnities and other Contingent
Obligations of the Borrower or any Guarantor that may be owing to the Lenders
pursuant to the Loan Documents and which expressly by their terms are intended
to survive termination of this Agreement).
"FASB 133" means Statement of Financial Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to the nearest multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means that certain fee letter dated as of September 20, 2004,
among the Borrower, the Administrative Agent and BAS.
"Fiscal Quarter" means the quarterly period of the Borrower ending on the
last Saturday in each May, August, November and February of any Fiscal Year.
"Fiscal Year" means the annual period of the Parent and the Borrower ending
on the last Saturday of each February.
"Foreign Benefit Law" means any applicable statute, law, ordinance, code,
rule, regulation, order or decree of any foreign nation or any province, state,
territory, protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning, any
Employee Benefit Plan.
"Four-Quarter Period" means a period of four (4) full consecutive Fiscal
Quarters of the Parent, the Borrower and its Subsidiaries, taken together as one
accounting period.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles, being those
principles of accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants, or
which have other substantial authoritative support and are applicable in the
circumstances as of the date of a report.
"Government Securities" means direct obligations of, or obligations the
timely payment of principal and interest on which are fully and unconditionally
guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state, municipal, national
or other governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"GTECH Reinsurance" means GTECH Reinsurance Company, a Vermont corporation
and wholly-owned subsidiary of the Parent.
"Granting Lender" has the meaning specified in Section 12.6(h).
"Guarantors" means, collectively, (a) the Parent, (b) each Material
Domestic Subsidiary existing on the Closing Date, (c) GTECH Latin America
Corporation, a Delaware corporation, and (d) any other Person after the Closing
Date which may have joined in the Facility Guaranty pursuant to a Facility
Guaranty Joinder Agreement or otherwise as provided in Section 8.19 hereof.
"Hazardous Material" means and includes any pollutant, contaminant, or
hazardous, toxic or dangerous waste, substance or material (including without
limitation petroleum products, asbestos-containing materials and lead), the
generation, handling, storage, transportation, disposal, treatment, release,
discharge or emission of which is subject to any Environmental Law.
"Indebtedness" of a Person means, without duplication, (a) all Indebtedness
for Money Borrowed, (b) all obligations of such Person arising under acceptance
facilities, (c) the undrawn face amount of, and unpaid reimbursement obligations
in respect of, all letters of credit issued for the account of such Person, (d)
all obligations of such Person upon which interest charges are actually paid,
(e) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person (even though
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (f) all
executory obligations of such Person in respect of Rate Hedging Obligations and
(g) all Contingent Obligations in respect of Indebtedness set forth in clauses
(a) through (f) above of Persons other than the Borrower or any Subsidiary. With
respect to the Parent, the Borrower and its Subsidiaries, "Indebtedness" shall
not include (w) the sum of the products of (i) the aggregate principal amount of
the indebtedness of the types described in clauses (a) through (g) above (unless
the holder of such indebtedness has recourse expressly, structurally or
otherwise as a matter of law, to the Parent, the Borrower and its Wholly-Owned
Subsidiaries) of each Subsidiary which is not a Wholly-Owned Subsidiary and (ii)
the percentage of all equity interests in such Subsidiary which is not owned
directly or indirectly by the Borrower and/or one or more of its Wholly-Owned
Subsidiaries, (x) any intercompany indebtedness of the Parent, the Borrower and
its Subsidiaries, (y) any endorsements of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business or (z) the
Customer Prepayment Obligations.
"Indebtedness for Money Borrowed" means with respect to any Person, without
duplication, (a) all indebtedness in respect of money borrowed evidenced by a
promissory note, bond, debenture or similar written obligation for the payment
of money, and (b) all obligations under Capital Leases, and the deferred
purchase price of any property or services, including in each case all such
items incurred by any partnership or joint venture as to which such Person is
liable as a general partner or joint venturer, and excluding in each case trade
payables and accrued expenses incurred in the ordinary course of business.
"Indebtedness for Money Borrowed" shall not include, however, any Synthetic
Lease Obligations.
"Interest Period" means, for each Eurodollar Rate Loan, a period commencing
on the date such Eurodollar Rate Loan is made or Converted or Continued and
ending, at the Borrower's option, on the date one (1), two (2), three (3), six
(6), or, subject to availability, nine (9) or twelve (12) months thereafter as
notified to the Administrative Agent by the Authorized Representative in
accordance with the terms hereof; provided that,
(a) if an Interest Period for a Eurodollar Rate Loan would end on a day
which is not a Business Day, such Interest Period shall be extended to the next
Business Day (unless such extension would cause the applicable Interest Period
to end in the succeeding calendar month, in which case such Interest Period
shall end on the next preceding Business Day); and
(b) any Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice delivered by an
Authorized Representative in connection with the election of an Interest Period
for any Eurodollar Rate Loan or the Conversion of any Eurodollar Rate Loan into
a Base Rate Loan or the Conversion of any Base Rate Loan into a Eurodollar Rate
Loan, in the form of Exhibit E.
"Investment Commitment" means, with respect to any investment, loan or
advance, the amount initially advanced, invested or disbursed less an amount
equal to the sum of (a) repayments of such advances, including all interest
income therefrom, (b) dividends and other distributions received from such
Person paid or made on securities issued solely in consideration of such
investment, (c) net gains on sales or other dispositions of capital stock,
securities or assets of such Person purchased with such investment, and (d) all
other net profits or other amounts net of expenses realized from such investment
or advance and all other net returns on Capital Expenditures, provided that the
aggregate amount of all such repayments, dividends, net gains, profits and other
amounts so deducted with respect to each such investment, advance or Capital
Expenditure shall not exceed the initial principal amount of such investment,
advance or Capital Expenditure.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the
L/C Issuer and relating to any such Letter of Credit.
"Joint Lead Arrangers" has the meaning specified in Section 8.1.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Commitment Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.5. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lease Rentals" means, for any period, the sum of the rental and other
obligations required to be paid by the lessee under any lease, excluding any
amounts required to be paid by the lessee (whether or not designated as rental
or additional rental) on account of maintenance and repairs, insurance, taxes
and similar charges.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the Swing Line Lender.
"Lender Participation" means, (a) with respect to any Lender (other than
the L/C Issuer) and a Letter of Credit, the extension of credit represented by
the participation of such Lender hereunder in the liability of the L/C Issuer in
respect of a Letter of Credit issued by the L/C Issuer in accordance with the
terms hereof and (b) with respect to any Lender (other than the Swing Line
Lender) and a Swing Line Loan, the extension of credit represented by the
participation of such Lender hereunder in the liability of the Swing Line Lender
in respect of a Swing Line Loan made by the Swing Line Lender in accordance with
the terms hereof.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Commitment" means, as to each Lender, the obligation of
such Lender to acquire Lender Participations in respect of Letters of Credit.
"Letter of Credit Expiration Date" means the day that is seven (7) days
prior to the Revolving Credit Termination Date then in effect (or, if such day
is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 3.1(i).
"Letter of Credit Sublimit" means an amount equal to $100,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Total
Revolving Credit Commitment.
"Lien" means any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. For the purposes of this Agreement, the Borrower
and any Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing lease, or
other arrangement pursuant to which title to the property has been retained by
or vested in some other Person for security purposes.
"Loan" or Loans" means any of the Revolving Loans or the Swing Line Loans.
"Loan Documents" means this Agreement, the Notes, the Facility Guaranties,
the Issuer Documents, and all other instruments and documents heretofore or
hereafter executed or delivered to or in favor of any Lender (including the L/C
Issuer) or the Administrative Agent in connection with the Loans made, Letters
of Credit issued and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from time to time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, liabilities (actual or contingent), operations or condition
(financial or otherwise), of the Parent, the Borrower and its Subsidiaries,
taken as a whole, (b) the ability of the Parent, the Borrower or the Credit
Parties taken as a whole to pay or perform their respective obligations,
liabilities and indebtedness under the Loan Documents as such payment or
performance becomes due in accordance with the terms thereof, or (c) the
validity, legality or enforceability of any of the Loan Documents.
"Material Domestic Subsidiary" means each Material Subsidiary which is a
Domestic Subsidiary.
"Material Subsidiary" means the Passive Investment Company and any direct
or indirect Subsidiary of the Borrower which (a) has total assets equal to or
greater than five percent (5%) of Consolidated Assets (calculated as of the most
recent fiscal period end with respect to which the Administrative Agent shall
have received financial statements required to be delivered pursuant to Sections
8.1(a) or (b) (or if prior to delivery of any financial statements pursuant to
such Sections, then calculated with respect to the Fiscal Year end financial
statements referenced in Section 7.6) (the "Required Financial Information")) or
(b) has profits equal to or greater than five percent (5%) of Consolidated Total
Profits Before Tax (calculated for the most recent period for which the
Administrative Agent has received the Required Financial Information); provided,
however, that any Material Subsidiary under clauses (a) or (b) above shall cease
to be a Material Subsidiary and shall be released immediately from its Facility
Guaranty or obligation to provide a Facility Guaranty, as the case may be, if it
or substantially all of its assets are sold or conveyed in a transaction
otherwise permitted under this Agreement.
"Mexican Peso" means the lawful currency of Mexico.
"Moody's" means Moody's Investors Service, Inc., and any successor thereto.
"Moroccan Dirham" means the lawful currency of Morocco.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions or has made, or been obligated
to make, contributions within the preceding six (6) Fiscal Years.
"Notes" means, collectively, the Swing Line Note and the Revolving Notes.
"Obligations" means the obligations, liabilities and Indebtedness of the
Borrower with respect to (a) the principal and interest on the Loans as
evidenced by the Notes, (b) the Unreimbursed Amounts and otherwise in respect of
the Letters of Credit, (c) all liabilities of the Borrower to any Lender (or any
Affiliate of any Lender) which arise under a Swap Agreement, and (d) the payment
and performance of all other obligations, liabilities and Indebtedness of the
Borrower to the Lenders (including the L/C Issuer), the Administrative Agent or
BAS hereunder, under any one or more of the other Loan Documents or with respect
to the Loans.
"Operating Documents" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated entity,
the bylaws, operating agreement, partnership agreement, limited partnership
agreement or other similar applicable documents relating in a material way to
the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated entity,
any corporate, organizational or partnership action (including any required
board of directors, shareholder, member or partner action), or other similar
official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated entity,
the articles of incorporation, certificate of incorporation, articles of
organization, certificate of limited partnership or other applicable
organizational or charter documents relating to the creation of such entity.
"Outstanding Amount" means (a) with respect to Revolving Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date; and (b) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.
"Outstandings" means, collectively, at any date, the L/C Obligations, Swing
Line Outstandings and Revolving Credit Outstandings on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.
"Parent" means GTECH Holdings Corporation, a Delaware corporation and owner
of all of the common stock of the Borrower.
"Parent Guaranty" means that certain Guaranty Agreement of the Parent dated
as of the date hereof in favor of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders and guaranteeing payment of the
Obligations, as the same may be amended, modified or supplemented from time to
time.
"Parent's Current SEC Filings" means the Parent's Form 8-K filed with the
SEC on April 15, 2004, the Parent's Form 8-K filed with the SEC on June 22,
2004, the Parent's Form 8-K filed with the SEC on July 1, 2004, the Parent's
Form 8-K filed with the SEC on July 29, 2004, the Parent's Form 8-K filed with
the SEC on September 21, 2004, the Parent's Form 10-Q filed with the SEC on July
2, 2004, the Parent's Form 10-Q filed with the SEC on October 6, 2004, and the
Parent's Form 10-K for the Borrower's Fiscal Year ended February 28, 2004 filed
with the SEC on May 12, 2004.
"Participant" has the meaning specified in Section 12.6(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"Passive Investment Company" means (a) GTECH Rhode Island Corporation, a
Delaware corporation, or (b) any successor Person thereof (by law or otherwise)
that is a single wholly owned Subsidiary of the Borrower and whose function and
activity shall be restricted solely to one or more of the following: (i) the
purchase of all or a portion of the Borrower's accounts receivable, (ii) the
purchase of all or a portion of the intellectual property of the Borrower upon
the condition that such intellectual property be licensed back to the Borrower
or (iii) the lending of money to and management of investments of the Borrower
and its Subsidiaries.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
thereto.
"Pension Plan" means any employee pension benefit plan within the meaning
of Section 3(2) of ERISA, other than a Multiemployer Plan, which is subject to
the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is
maintained for employees of the Borrower or any of its ERISA Affiliates or is
assumed by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (b) has at any time been maintained for the employees of the
Borrower or any current or former ERISA Affiliate.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Principal Office" means, with respect to any currency, the Administrative
Agent's address and, as appropriate, account as set forth in Schedule 12.2 with
respect to such currency, or such other address or account with respect to such
currency as the Administrative Agent may from time to time notify to the
Borrower and the Lenders.
"Rate Hedging Obligations" means, without duplication, any and all
obligations of the Borrower or any Subsidiary, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and substitutions therefor),
under (a) any and all agreements, devices or arrangements designed to protect at
least one of the parties thereto from the fluctuations of interest rates,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts, warrants and those commonly known as
interest rate "swap" agreements; (b) all other "derivative instruments" as
defined in FASB 133 and which are subject to the reporting requirements of FASB
133; and (iii) any and all cancellations, buybacks, reversals, terminations or
assignments of any of the foregoing. For purposes of any computation hereunder,
each Rate Hedging Obligation shall be valued at the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract, instrument or
other arrangement creating a Rate Hedging Obligation, the net obligations of the
Borrower or any Subsidiary thereunder equal to the termination value thereof as
determined in accordance with its provisions (if such Rate Hedging Obligation
has been terminated) or the mark to market value thereof as determined on the
basis of available quotations from any recognized dealer in, or from Bloomberg
or other similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been terminated).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Required Lenders" means, as of any date, Lenders on such date having
Credit Exposures (as defined below) aggregating more than fifty percent (50%) of
the aggregate Credit Exposures of all the Lenders on such date. For purposes of
the preceding sentence, the amount of the "Credit Exposure" of each Lender shall
be equal at all times (a) other than following the occurrence and during the
continuance of an Event of Default, to its Revolving Credit Commitment, and (b)
following the occurrence and during the continuance of an Event of Default, to
the sum of (i) the aggregate principal amount of such Lender's Applicable
Commitment Percentage of Revolving Credit Outstandings plus (ii) the amount of
such Lender's Applicable Commitment Percentage of L/C Obligations and Swing Line
Outstandings; provided that, for the purpose of this definition only, (A) if any
Lender shall have failed to fund its Applicable Commitment Percentage of any
Advance, then the Revolving Credit Commitment of such Lender shall be deemed
reduced by the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure shall be
deemed held by any Lender making more than its Applicable Commitment Percentage
of such Advance to the extent it covers such failure, (B) if any Lender shall
have failed to pay to the L/C Issuer upon demand its Applicable Commitment
Percentage of any drawing under any Letter of Credit resulting in an outstanding
Unreimbursed Amount (whether by funding its Lender Participation therein or
otherwise), such Lender's Credit Exposure attributable to all L/C Obligations
shall be deemed to be held by the L/C Issuer until such Lender shall pay such
deficiency amount to the L/C Issuer together with interest thereon as provided
in Section 4.5 and (C) if any Lender shall have failed to pay to the Swing Line
Lender on demand its Applicable Commitment Percentage of any Swing Line Loan
(whether by funding its Lender Participation therein or otherwise), such
Lender's Credit Exposure attributable to all Swing Line Outstandings shall be
deemed to be held by the Swing Line Lender until such Lender shall pay such
deficiency amount to the Swing Line Lender together with interest thereon as
provided in Section 4.5.
"Revaluation Date" means, with respect to any Letter of Credit, each of the
following: (a) each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (b) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof (solely with respect to the
increased amount), (c) each date of any payment by the L/C Issuer under any
Letter of Credit denominated in an Alternative Currency, (d) in the case of the
Existing Letters of Credit, the Closing Date, (e) each date of any Borrowing
Notice for a Base Rate Loan under Section 3.1(c)(i) and (f) such additional
dates as the L/C Issuer shall determine or the Required Lenders shall reasonably
require.
"Revolving Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in Section 2.1
hereof providing for Loans to the Borrower by the Lenders in the aggregate
principal amount of the Total Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of determination, the
aggregate principal amount of all Revolving Loans then outstanding.
"Revolving Credit Termination Date" means (a) the Stated Termination Date
or (b) such earlier date of termination of Lenders' obligations pursuant to
Section 10.1 upon the occurrence of an Event of Default, or (c) such date as the
Borrower may voluntarily and permanently terminate the Revolving Credit Facility
by payment in full of all Obligations, together with all accrued and unpaid
interest, fees and other amounts thereon.
"Revolving Loan" means any borrowing pursuant to an Advance under the
Revolving Credit Facility in accordance with Section 2.1.
"Revolving Notes" means, collectively, the promissory notes of the Borrower
evidencing Revolving Loans executed and delivered to the Lenders as provided in
Section 2.3 substantially in the form of Exhibit F-1, with appropriate
insertions as to amounts, dates and names of Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.
"Sale and Leaseback Transaction" means a transaction or series of
transactions pursuant to which the Borrower or any Material Subsidiary shall
sell or transfer to any Person any property, whether now owned or hereafter
acquired, and, as part of the same transaction or series of transactions, the
Borrower or any Material Subsidiary shall lease as lessee, or similarly acquire
the right to possession or use of, such property for a period in excess of three
years.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
reasonably determined by the Administrative Agent or the L/C Issuer, as the case
may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative
Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Single Employer Plan" means any employee pension benefit plan covered by
Title IV of ERISA and in respect of which the Borrower or any Subsidiary is an
"employer" as described in Section 4001(b) of ERISA, which is not a
Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(a) the fair value of its assets (both at fair valuation and at present
fair saleable value on an orderly basis) is in excess of the total amount of its
liabilities, including Contingent Obligations; and
(b) it is then able and expects to be able to pay its debts as they mature;
and
(c) it has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
"SPC" has the meaning specified in Section 12.6(h).
"Spot Rate" for a currency means the rate determined by the L/C Issuer to
be the rate quoted by the Person acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 A.M. on the
date two (2) Business Days prior to the date as of which the foreign exchange
computation is made; provided that the L/C Issuer may obtain such spot rate from
another financial institution designated by the L/C Issuer if the Person acting
in such capacity does not have as of the date of determination a spot buying
rate for any such currency; and provided further that the L/C Issuer may use
such spot rate quoted on the date as of which the foreign exchange computation
is made in the case of any Letter of Credit denominated in an Alternative
Currency.
"Stated Termination Date" means the fifth anniversary of the Closing Date.
"Sterling" means the lawful currency of the United Kingdom.
"Subsidiary" means (a) any Person in which more than fifty percent (50%) of
its outstanding Voting Securities or more than fifty percent (50%) of all equity
interests is owned directly or indirectly by the Borrower and/or by one or more
of the Borrower's Subsidiaries at or after the Closing Date or (b) any Person
whose financial information and operations are required to be consolidated in
the financial statements of the Borrower in accordance with GAAP applied on a
Consistent Basis.
"Subsidiary Securities" means the shares of capital stock or the other
equity interests issued by or equity participations in any Subsidiary, whether
or not constituting a "security" under Article 8 of the Uniform Commercial Code
as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the Borrower and any
one or more Lenders (or any Affiliate of any Lender) with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually acceptable
to the Borrower and such Lender(s), which agreements create Rate Hedging
Obligations.
"Swing Line" means the revolving line of credit established by the Swing
Line Lender in favor of the Borrower pursuant to Section 2.4.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loans" means loans made by the Swing Line Lender to the
Borrower pursuant to Section 2.4.
"Swing Line Note" means the promissory note of the Borrower evidencing the
Swing Line executed and delivered to the Swing Line Lender as provided in
Section 2.3 substantially in the form of Exhibit F-2.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding.
"Swing Line Rate" means the rate of interest per annum equal to the Federal
Funds Rate plus the Applicable Margin.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$40,000,000 and (b) the Total Revolving Commitment Amount. The Swing Line
Sublimit is part of, and not in addition to, the Total Revolving Commitment
Amount.
"Swiss Franc" means the lawful currency of Switzerland.
"Synthetic Lease Obligations" means all monetary obligations of a lessee
under any tax retention or other synthetic leases which is treated as an
operating lease under GAAP but the liabilities under which are or would be
characterized as indebtedness of such Person for tax purposes or upon the
insolvency of such Person. The amount of Synthetic Lease Obligations in respect
of any synthetic lease at any date of determination thereof shall be equal to
the aggregate purchase price of any property subject to such lease less the
aggregate amount of payments of rent theretofore made which reduce the lessee's
obligations under such synthetic lease and which are not the financial
equivalent of interest.
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA and the regulations issued thereunder (unless the notice
requirement has been waived by applicable regulation); or (b) the withdrawal of
the Borrower or any ERISA Affiliate from a Pension Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA
or was deemed such under Section 4062(e) of ERISA; or (c) the termination of a
Pension Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA; or (d) the institution of proceedings to terminate a Pension Plan by the
PBGC; or (e) any other event or condition which would constitute grounds under
Section 4042(a) of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan; or (f) the partial or complete withdrawal of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; or (g) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of
ERISA; or (h) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (i) any event or condition which results in the termination of
a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC
of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA; or
(j) any event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of such
Employee Benefit Plan or the revocation of such Employee Benefit Plan's
authority to operate under the applicable Foreign Benefit Law.
"Total Revolving Credit Commitment" means a principal amount equal to
$500,000,000, as reduced from time to time in accordance with Section 2.1(e).
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or a Eurodollar
Rate Loan).
"Unreimbursed Amount" has the meaning specified in Section 3.1(c)(i).
"Voting Securities" means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Wholly-Owned Subsidiary" shall mean each Subsidiary in which one hundred
percent (100%) of all equity interests is owned directly or indirectly by the
Borrower and/or one or more of its Wholly-Owned Subsidiaries.
"Yen" means the lawful currency of Japan.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall have
the meanings assigned to such terms and shall be interpreted in accordance
with GAAP applied on a Consistent Basis. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower
shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
(b) Each term defined in Articles 1, 8 or 9 of the New York Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code of
another jurisdiction is controlling, in which case such terms shall have
the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall
not constitute a part of any such document or affect the meaning,
construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any Loan
Document to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules in or to such Loan
Document.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined
term, and all references to the masculine gender shall include reference to
the feminine or neuter gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the
whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and such term shall not
limit a general statement to matters similar to those specifically
mentioned.
(h) Whenever interest rates or fees are established in whole or in
part by reference to a numerical percentage expressed as "___%", such
arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(i) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request)
revisions to, the Loan Documents, and any rule of construction that
ambiguities are to be resolved against the drafting party shall be
inapplicable in the construing and interpretation of the Loan Documents and
all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other Person by
reference to the title of such officer shall be deemed to refer to each
other officer of such Person, however titled, exercising the same or
substantially similar functions.
(k) All references to any agreement or document as amended, modified
or supplemented, or words of similar effect, shall mean such document or
agreement, as the case may be, as amended, modified or supplemented from
time to time only as and to the extent permitted therein and in the Loan
Documents.
1.3. Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.4. Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.5. Letter of Credit Amounts. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
1.6. Exchange Rates; Currency Equivalents. (a) The L/C Issuer shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of L/C Credit Extensions denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date
and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Credit Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined by
the L/C Issuer.
(b) Wherever in this Agreement in connection with the issuance, amendment
or extension of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Letter of Credit is
denominated in an Alternative Currency, such amount shall be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the L/C Issuer.
1.7. Additional Alternative Currencies. (a) The Borrower may from time to
time request that Letters of Credit be issued in a currency other than those
specifically listed in the definition of "Alternative Currency"; provided that
such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars. In the
case of any such request with respect to the issuance of Letters of Credit, such
request shall be subject to the approval of the Administrative Agent and the L/C
Issuer.
(b) Any such request shall be made to the Administrative Agent not later
than 11:00 A.M., twenty (20) Business Days prior to the date of the desired L/C
Credit Extension (or such other time or date as may be agreed by the
Administrative Agent and the L/C Issuer, in its or their sole discretion). The
Administrative Agent shall promptly notify the L/C Issuer thereof. The L/C
Issuer shall notify the Administrative Agent, not later than 11:00 A.M., ten
(10) Business Days after receipt of such request whether it consents, in its
sole discretion, to the making of the issuance of Letters of Credit in such
requested currency.
(c) Any failure by the L/C Issuer to respond to such request within the
time period specified in the preceding sentence shall be deemed to be a refusal
by the L/C Issuer to permit Letters of Credit to be issued in such requested
currency. If the Administrative Agent and the L/C Issuer consent to the issuance
of Letters of Credit in such requested currency, the Administrative Agent shall
so notify the Borrower and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If the Administrative Agent or the L/C Issuer shall fail to
consent to any request for an additional currency under this Section 1.7, the
Administrative Agent shall promptly so notify the Borrower. Any specified
currency of an Existing Letter of Credit that is neither Dollars nor one of the
Alternative Currencies specifically listed in the definition of "Alternative
Currency" shall be deemed an Alternative Currency with respect to such Existing
Letter of Credit only.
1.8. Change of Currency. (a) Each obligation of the Borrower to make a
payment denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date hereof
shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the change
in currency.
ARTICLE II
The Credit Facilities
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement, each
Lender severally agrees to make Advances in Dollars to the Borrower under the
Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding the Revolving Credit Commitment of
such Lender; provided, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default or an Event
of Default has occurred and is continuing or (ii) if the Administrative Agent
has accelerated the maturity of any of the Notes as a result of an Event of
Default or (iii) if the Revolving Credit Commitment and the Letter of Credit
Commitment and the obligation of the Lenders to make Revolving Loans, of the
Swing Line Lender to make Swing Line Loans, and of the L/C Issuer to issue
Letters of Credit hereunder shall have automatically terminated pursuant to
Section 10.1(A); provided further, however, that immediately after giving effect
to each such Advance, the amount of Outstandings shall not exceed the Total
Revolving Credit Commitment. Within such limits and subject to the other terms
and conditions of this Agreement, the Borrower may borrow, repay (without
premium or penalty) and reborrow under the Revolving Credit Facility on any
Business Day from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date.
(b) Amounts. The Outstandings shall not exceed at any time the Total
Revolving Credit Commitment, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and prepayments
as shall be necessary to comply with this restriction. Each Advance under the
Revolving Credit Facility, other than Base Rate Refunding Loans and Base Rate
Loans made to satisfy Unreimbursed Amounts pursuant to Section 3.1(c), shall be
in a principal amount of at least $5,000,000, and, if greater than $5,000,000,
an integral multiple of $100,000.
(c) Advances. (i) An Authorized Representative shall give the
Administrative Agent (A) at least three (3) Business Days' irrevocable
telephonic notice of each Eurodollar Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing hereunder or the
Conversion of a borrowing hereunder from a Base Rate Loan to a Eurodollar Rate
Loan) prior to 11:30 A.M. and (B) irrevocable telephonic notice of each Base
Rate Loan (other than Base Rate Loans to the extent the same are effected
without notice pursuant to Section 3.1(c) and Base Rate Refunding Loans to the
extent the same are effected without notice and whether representing an
additional borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 11:30 A.M. on the day of such
proposed Revolving Loan. Each such notice shall be effective upon receipt by the
Administrative Agent, shall specify the amount of the borrowing, the type of
Revolving Loan (Base Rate or Eurodollar Rate), the date of borrowing and, if a
Eurodollar Rate Loan, the Interest Period to be used in the computation of
interest. The Authorized Representative shall provide the Administrative Agent
written confirmation of each such telephonic notice on the same day by
telefacsimile transmission in the form of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions but failure to
provide such confirmation shall not affect the validity of such telephonic
notice. Notice of receipt of such Borrowing Notice or Interest Rate Selection
Notice, as the case may be, shall be provided by the Administrative Agent to
each Lender with reasonable promptness, but (provided the Administrative Agent
shall have received such notice by 11:30 A.M.) not later than 1:00 P.M. on the
same day as the Administrative Agent's receipt of such notice. The
Administrative Agent shall provide each Lender written confirmation of such
telephonic notice by telefacsimile transmission but failure to provide such
notice shall not affect the validity of such telephonic notice. The Borrower
shall have the option to elect the duration of subsequent Interest Periods and
to convert the Loans (other than Swing Line Loans) in accordance with Section
4.2 hereof.
(ii) Not later than 2:30 P.M. on the date specified for each borrowing
under this Section 2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Administrative Agent
in the amount of its pro rata share, determined according to such Lender's
Applicable Commitment Percentage of the Revolving Loan or Revolving Loans to be
made on such day. Such wire transfer shall be directed to the Administrative
Agent at the Principal Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower by delivery and deposit of the proceeds thereof by 3:00 P.M. on
the date specified for each borrowing to Borrower's account at Fleet National
Bank, ABA routing number 011000390, account number 07718069 (or such other
account as may be directed by two (2) Authorized Representatives of the
Borrower).
(d) Repayment of Revolving Loans. The principal amount of each Revolving
Loan, all accrued and unpaid interest, fees and other Obligations shall be due
and payable to the Administrative Agent for the benefit of each Lender in full
on the Revolving Credit Termination Date, or earlier as specifically provided
herein. The principal amount of any Revolving Loan may be prepaid in whole or in
part on any Business Day, upon (A) at least three (3) Business Days' irrevocable
telephonic notice in the case of each Revolving Loan that is a Eurodollar Rate
Loan from an Authorized Representative (effective upon receipt) to the
Administrative Agent prior to 10:30 A.M. and (B) irrevocable telephonic notice
in the case of each Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Administrative Agent prior to
10:30 A.M. on the day of such proposed repayment. The Authorized Representative
shall provide the Administrative Agent written confirmation of each such
telephonic notice but failure to provide such confirmation shall not effect the
validity of such telephonic notice. All prepayments of Revolving Loans made by
the Borrower shall be in the amount of $5,000,000 or such greater amount which
is an integral multiple of $100,000, or the amount equal to all Revolving Credit
Outstandings, or such other amount as necessary to comply with Section 2.1(b).
(e) Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than ten (10) Business Days' prior
irrevocable written notice to the Administrative Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Administrative Agent shall
give each Lender, within one (1) Business Day of receipt of such notice,
telephonic notice (confirmed in writing), of such reduction. Each such reduction
shall be in the aggregate amount of $10,000,000 or such greater amount which is
in an integral multiple of $1,000,000, or the entire remaining Total Revolving
Credit Commitment, and shall permanently reduce the Total Revolving Credit
Commitment and the Revolving Credit Commitment of each Lender pro rata; provided
that, if, after giving effect to any reduction of the Total Revolving Credit
Commitment, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the
amount of the Total Revolving Credit Commitment, such Sublimit shall be
automatically reduced by the amount of such excess. No such reduction shall be
permitted that results in the payment of any Eurodollar Rate Loan other than on
the last day of the Interest Period of such Loan unless such prepayment is
accompanied by amounts due, if any, under Section 5.5 hereof. Each reduction of
the Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Loans or Swing Line Loans to the extent that the principal amount of
the Outstandings exceeds the Total Revolving Credit Commitment after giving
effect to such reduction, together with accrued and unpaid interest and fees on
the amounts prepaid. The amount of any such Total Revolving Credit Commitment
reduction shall not be applied to the Swing Line Sublimit or the Letter of
Credit Sublimit unless otherwise specified by the Borrower. A reduction of the
Total Revolving Credit Commitment to zero and payment of all Obligations
hereunder (including the discharge of all obligations of the L/C Issuer and the
Lenders with respect to the Letters of Credit and Lender Participations) shall
be deemed a cancellation and termination of this Agreement.
2.2. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and the Swing Line hereunder shall be used by the
Borrower (a) for general working capital needs and other lawful corporate
purposes, including the making of Capital Expenditures permitted hereunder, and
(b) to refinance the Borrower's Existing Senior Credit Facility.
2.3. Notes.
(a) Revolving Notes. Revolving Loans made by each Lender shall be evidenced
by the Revolving Note payable to the order of such Lender in the respective
amount of its Applicable Commitment Percentage of the Total Revolving Credit
Commitment, which Revolving Note shall be dated the Closing Date or a later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
(b) Swing Line Note. The Swing Line Outstandings shall be evidenced by a
separate Swing Line Note payable to the order of the Swing Line Lender in the
amount of the Swing Line, which Note shall be dated the Closing Date and shall
be duly completed, executed and delivered by the Borrower.
2.4. Swing Line.
(a) Notwithstanding any other provision of this Agreement to the contrary,
in order to administer the Revolving Credit Facility in an efficient manner and
to minimize the transfer of funds between the Administrative Agent and the
Lenders, the Swing Line Lender shall make available, on a same day basis, Swing
Line Loans to the Borrower from time to time from the Closing Date until the
Revolving Credit Termination Date. The Swing Line Lender shall not be obligated
to make any Swing Line Loan pursuant hereto (i) if to the actual knowledge of
the Swing Line Lender the Borrower is not in compliance with all the conditions
to the making of Revolving Loans set forth in this Agreement, (ii) if after
giving effect to such Swing Line Loan, the Swing Line Outstandings exceed the
Swing Line Sublimit, or (iii) if after giving effect to such Swing Line Loan,
the sum of the Outstandings exceeds the Total Revolving Credit Commitment. The
Borrower may, subject to the conditions set forth in the preceding sentence,
borrow under this Section 2.4, prepay, and reborrow under this Section 2.4.
Unless notified to the contrary by the Swing Line Lender, borrowings under the
Swing Line shall be made in the minimum amount of $500,000 or, if greater, in
amounts which are integral multiples of $100,000, or in the amount necessary to
effect a Base Rate Refunding Loan or a Base Rate Loan made to satisfy
Unreimbursed Amounts pursuant to Section 3.1(c), upon written request by
telefacsimile transmission, effective upon receipt, by an Authorized
Representative of the Borrower made to the Swing Line Lender not later than
12:30 P.M. on the Business Day of the requested borrowing. Each such Borrowing
Notice shall specify the amount of the borrowing and the date of borrowing, and
shall be in the form of Exhibit D-2, with appropriate insertions. Unless
notified to the contrary by the Swing Line Lender, each repayment of a Swing
Line Loan shall be in an amount which is an integral multiple of $500,000 or the
aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account of
the Swing Line Lender. Swing Line Loans shall bear interest solely at the Swing
Line Rate. The Borrower shall pay interest to the Swing Line Lender on the
outstanding and unpaid principal amount of each Swing Line Loan made by the
Swing Line Lender, commencing on the first date of such Swing Line Loan until
such Swing Line Loan shall be repaid. Interest on each Swing Line Loan shall be
paid quarterly in arrears on the last Business Day of each March, June,
September or December, until the Revolving Credit Termination Date, at which
date the entire principal amount of and all accrued interest and fees on such
Swing Line Loan shall be paid in full; provided, however, that if any amount
shall not be paid when due (at maturity, by acceleration or otherwise) or any
Event of Default shall occur and be continuing, all amounts outstanding
hereunder shall bear interest thereafter until paid in full at the Default Rate.
The principal amount of any Swing Line Loan may be prepaid in whole or in part
on any Business Day, upon irrevocable telephonic notice from an Authorized
Representative (effective upon receipt) to the Administrative Agent prior to
10:30 A.M. on the day of such proposed repayment. The Authorized Representative
shall provide the Administrative Agent written confirmation of each such
telephonic notice but failure to provide such confirmation shall not effect the
validity of such telephonic notice. Each provision of Section 2.1(c) hereof
applicable to Base Rate Loans shall be applicable in all respects to each Swing
Line Loan.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed to
have purchased from the Swing Line Lender a Lender Participation therein in an
amount equal to that Lender's Applicable Commitment Percentage of such Swing
Line Loan. Upon demand made by the Swing Line Lender, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to the Swing Line Lender its purchase price therefor in an
amount equal to its Lender Participation therein. Any Advance made by a Lender
pursuant to demand of the Swing Line Lender of the purchase price of its Lender
Participation shall be deemed to be a Base Rate Refunding Loan under Section 2.1
if the conditions to making Revolving Loans shall then be satisfied. If such
conditions are not then satisfied, such Advance shall be deemed to be the
funding by such Lender of the purchase price of its Lender Participation in such
Swing Line Loan. The obligation of each Lender to so provide its purchase price
to the Swing Line Lender shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence or
event.
(d) The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date which is ten (10) Business Days after such Swing Line Loan is
made and (ii) the Revolving Credit Termination Date.
The Borrower, at its option and subject to the terms hereof, may request an
Advance pursuant to Section 2.1 in an amount sufficient to repay Swing Line
Outstandings on any date and the Administrative Agent shall provide from the
proceeds of such Advance to the Swing Line Lender the amount necessary to repay
such Swing Line Outstandings (which the Swing Line Lender shall then apply to
such repayment) and credit any balance of the Advance in immediately available
funds in the manner directed by the Borrower pursuant to Section 2.1(c)(ii). The
proceeds of such Advances shall be paid to the Swing Line Lender for application
to the Swing Line Outstandings and the Lenders shall then be deemed to have made
Loans in the amount of such Advances. The Swing Line shall continue in effect
until the Revolving Credit Termination Date, at which time all Swing Line
Outstandings and accrued interest and fees thereon shall be due and payable in
full.
ARTICLE III
Letters of Credit
3.1. Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set
forth in this Section 3.1, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or
in one or more Alternative Currencies for the account of the Borrower
or its Subsidiaries, and to amend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally
agree to participate in Letters of Credit issued for the account of
the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Outstandings shall not exceed the Total
Revolving Credit Commitment, (y) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Applicable
Commitment Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Commitment Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Revolving Credit Commitment, and (z) the Outstanding Amount
of the L/C Obligations shall not exceed the Letter of Credit Sublimit.
Each request by the Borrower for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrower that
the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly, among other things, the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed.
All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and, subject to Section 3.1(j), from and after the
Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve (12) months after the date of issuance, unless
the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it;
(B) the issuance of such Letter of Credit would violate one or
more written policies of the L/C Issuer generally applicable to the
issuance of Letters of Credit;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $100,000, in the case of a commercial Letter of Credit, or
$500,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is to be denominated in a
currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the requested
currency;
(F) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or
(G) a default of any Lender's obligations to fund under Section
3.1(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article XI with respect to any acts taken or omissions suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article XI included the L/C Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to
the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by an
Authorized Representative of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative
Agent (A) not later than 11:00 A.M. at least two (2) Business Days
prior to the proposed issuance date or date of amendment, as the case
may be, of any Letter of Credit denominated in Dollars, and (B) not
later than 11:00 A.M. at least ten (10) Business Days prior to the
proposed issuance date or date of amendment, as the case may be, of
any Letter of Credit denominated in an Alternative Currency; or in
each case such later date and time as the Administrative Agent and the
L/C Issuer may agree in a particular instance in their sole
discretion. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E)
the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and
(G) such other matters as the L/C Issuer may reasonably require. In
the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may reasonably require. Additionally,
the Borrower shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Credit Party, at least one (1)
Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable
conditions contained in Article VI shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount
equal to (x) such Lender's Applicable Commitment Percentage times (y)
the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Lender Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify the Borrower and the Administrative Agent thereof. In the
case of a Letter of Credit denominated in an Alternative Currency, the
Borrower shall reimburse the L/C Issuer in such Alternative Currency,
unless (A) the L/C Issuer (at its option) shall have specified in such
notice that it will require reimbursement in Dollars, or (B) in the
absence of any such requirement for reimbursement in Dollars, the
Borrower shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that the Borrower will reimburse the L/C
Issuer in Dollars. In the case of any such reimbursement in Dollars of
a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 11:00 A.M. on the date of any
payment by the L/C Issuer under a Letter of Credit to be reimbursed in
Dollars, or the Applicable Time on the date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in an Alternative
Currency (each such date, an "Honor Date"), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable currency. If
the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (expressed in Dollars in
the amount of the Dollar Equivalent thereof in the case of a Letter of
Credit denominated in an Alternative Currency) (the "Unreimbursed
Amount"), and the amount of such Lender's Applicable Commitment
Percentage thereof. In such event, the Borrower shall be deemed to
have requested a borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.1 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Total Revolving Commitment Amount and the
conditions set forth in Section 6.2 (other than the delivery of a
Borrowing Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 3.1(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
3.1(c)(i) make funds available to the Administrative Agent for the
account of the L/C Issuer, in Dollars, at the Principal Office for
Dollar-denominated payments in an amount equal to its Applicable
Commitment Percentage of the Unreimbursed Amount not later than 1:00
P.M. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
3.1(c)(iii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a borrowing of Base Rate Loans because the conditions
set forth in Section 6.2 cannot be satisfied or for any other reason,
the Borrower shall be deemed to have incurred from the L/C Issuer an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.
In such event, each Lender's payment to the Administrative Agent for
the account of the L/C Issuer pursuant to Section 3.1(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 3.1.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 3.1(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Commitment Percentage of such amount shall be
solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 3.1(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Revolving Loans
pursuant to this Section 3.1(c) is subject to the conditions set forth
in Section 6.2 (other than delivery by the Borrower of a Borrowing
Notice). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section
3.1(c) by the time specified in Section 3.1(c)(ii), the L/C Issuer
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a
rate per annum equal to the applicable Overnight Rate from time to
time in effect. A certificate of the L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Lender Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 3.1(c),
if the Administrative Agent receives for the account of the L/C Issuer
any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its
Applicable Commitment Percentage thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 3.1(c)(i) is required to
be returned under any of the circumstances described in Section 12.5
(including pursuant to any settlement entered into by the L/C Issuer
in its discretion), each Lender shall pay to the Administrative Agent
for the account of the L/C Issuer its Applicable Commitment Percentage
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned by
such Lender, at a rate per annum equal to the applicable Overnight
Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Borrower or
any Subsidiary or in the relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity as to the
form of such Letter of Credit or amendment, the Borrower will immediately notify
the L/C Issuer. The Borrower shall be conclusively deemed to have waived any
such claim against the L/C Issuer and its correspondents as to the form of such
Letter of Credit or amendment unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties or any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(vi) of Section 3.1(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct or actual, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral.
(i) Upon the request of the Administrative Agent, (A) if the L/C
Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(B) if, as of the Letter of Credit Expiration Date, any L/C Obligation
for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of such L/C
Obligations.
(ii) In addition, if the Administrative Agent notifies the
Borrower at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds one hundred five percent (105%) of
the Letter of Credit Sublimit then in effect, then, within two (2)
Business Days after receipt of such notice, the Borrower shall Cash
Collateralize the L/C Obligations in an amount equal to the amount by
which the Outstanding Amount of all L/C Obligations exceeds the Letter
of Credit Sublimit (the "Excess Amount"); provided, however, if
availability under the Total Revolving Credit Commitment exceeds the
Excess Amount at any time the Administrative Agent notifies the
Borrower pursuant to this clause (ii), then, within five (5) Business
Days after receipt of such notice, the Borrower shall Cash
Collateralize the L/C Obligations in an amount equal to the Excess
Amount.
(iii) The Administrative Agent may, at any time and from time to
time after the initial deposit of Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the
results of exchange rate fluctuations which have occurred.
(iv) Section 10.1(B) sets forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes of this Section 3.1
and Section 10.1(B), "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives
of such term have corresponding meanings. The Borrower hereby grants
to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and
all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Commitment Percentage in Dollars a Letter of Credit fee (the "Letter of Credit
Fee") (i) for each commercial Letter of Credit equal to one-quarter of one
percent (1/4 of 1%) per annum times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit, and (ii) for each standby
Letter of Credit equal to the Applicable Margin times the Dollar Equivalent of
the daily amount available to be drawn under such Letter of Credit. For purposes
of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with
Section 1.5. Letter of Credit Fees shall be (x) computed on a quarterly basis in
arrears and (y) due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the
Applicable Margin during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable
Margin separately for each period during such quarter that such Applicable
Margin was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, while any Event of Default exists, all
Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account,
in Dollars, a fronting fee with respect to each Letter of Credit issued on or
after the Closing Date, at the rate per annum specified in the Fee Letter,
computed on the Dollar Equivalent of the daily amount available to be drawn
under such Letter of Credit, on a quarterly basis in arrears, and due and
payable on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.5. In addition, the Borrower shall pay directly to the
L/C Issuer for its own account the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1. Interest Rate Options. Eurodollar Rate Loans and Base Rate Loans may
be outstanding at the same time and, so long as no Default or Event of Default
shall have occurred and be continuing, the Borrower shall have the option to
elect the Type of Loan and the duration of the initial and any subsequent
Interest Periods and to Convert Revolving Loans in accordance with Sections
2.1(c)(i) and 4.2, as applicable; provided, however, (a) there shall not be
outstanding at any one time Eurodollar Rate Loans having more than fifteen (15)
different Interest Periods, and (b) no Eurodollar Rate Loan shall have an
Interest Period that extends beyond the Stated Termination Date. If the
Administrative Agent does not receive a Borrowing Notice or an Interest Rate
Selection Notice giving notice of election of the duration of an Interest Period
or of Conversion of any Loan to or Continuation of a Loan as a Eurodollar Rate
Loan by the time prescribed by Sections 2.1(c)(i) and 4.2, as applicable, the
Borrower shall be deemed to have elected to obtain or Convert such Loan to (or
Continue such Loan as) a Swing Line Loan, if available under Section 2.4(a),
until the Borrower notifies the Administrative Agent in accordance with Section
4.2; provided, however, if Swing Line Loans are not available, the Borrower
shall be deemed to have elected to Convert or Continue such Loan as a Base Rate
Loan. The Borrower shall not be entitled to elect to Continue any Loan as or
Convert any Loan into a Eurodollar Rate Loan if a Default or Event of Default
shall have occurred and be continuing.
4.2. Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth in the definition of "Interest Period" and
in Section 4.1 and Article V, the Borrower may:
(a) after notice to the Administrative Agent on or before 10:30 A.M.
on any Business Day, Convert all or a part of any Eurodollar Rate Loan to a
Base Rate Loan on the last day of the Interest Period for such Eurodollar
Rate Loan; and
(b) upon delivery of notice to the Administrative Agent on or before
10:30 A.M. three (3) Business Days' prior to the date of such Conversion or
Continuation:
(i) elect a subsequent Interest Period for all or a portion of
any Eurodollar Rate Loan to begin on the last day of the then current
Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate Loan on any
Business Day.
No Swing Line Loan may be converted into any other type of Loan and none of
such other types of Loans may be converted into Swing Line Loans.
Each such notice shall be effective upon receipt by the Administrative
Agent, shall specify the amount of the Eurodollar Rate Loan affected and the
effective date of such Continuation or Conversion, and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be applicable to
the Loan as Continued or Converted. Where telephonic notice is given, the
Authorized Representative shall provide the Administrative Agent written
confirmation of each such telephonic notice in the form of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with appropriate insertions but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice or Interest Rate
Selection Notice, as the case may be, shall be provided by the Administrative
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Administrative Agent shall have received such notice by 10:30
A.M.) not later than 1:00 P.M. on the same day as the Administrative Agent's
receipt of such notice. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
Each election and conversion pursuant to this Section 4.2 shall be subject to
the limitations on Eurodollar Rate Loans set forth in Sections 2.1(a), (b) and
(c).
4.3. Payment of Interest. The Borrower shall pay interest to the
Administrative Agent at the Principal Office for the account of each Lender on
the outstanding and unpaid principal amount of each Revolving Loan made by such
Lender, commencing on the first date of such Revolving Loan until such Revolving
Loan shall be repaid, at the applicable Base Rate or Eurodollar Rate as
designated by the Borrower in the related Borrowing Notice or Interest Rate
Selection Notice or as otherwise provided hereunder. Interest on each Revolving
Loan shall be paid on the earliest of (a) in the case of any Base Rate Loan,
quarterly in arrears of the last Business Day of each March, June, September or
December, commencing with the first such Business Day to occur after the Closing
Date, until the Revolving Credit Termination Date, at which date the entire
principal amount of and all accrued interest and fees on the Revolving Loans
shall be paid in full, (b) in the case of any Eurodollar Rate Loan, on the last
day of the applicable Interest Period for such Eurodollar Rate Loan and if such
Interest Period extends for more than three (3) months, at intervals of three
(3) months after the first day of such Interest Period, and (c) upon payment in
full of the related Revolving Loan; provided, however, that if any amount shall
not be paid when due (at maturity, by acceleration or otherwise) or any Event of
Default shall occur and be continuing, all amounts outstanding hereunder shall
bear interest thereafter until paid in full at the Default Rate.
4.4. Prepayments. Whenever any payment of principal shall be made in
respect of any Loan hereunder, whether at maturity, by acceleration, by optional
or mandatory prepayment or as otherwise required or permitted hereunder, with
the effect that any Eurodollar Rate Loan shall be prepaid in whole or in part
prior to the last day of the Interest Period applicable to such Eurodollar Rate
Loan, such payment of principal shall be accompanied by the additional payment,
if any, required by Section 5.5.
4.5. Payments Generally; Administrative Agent's Clawback. (a) General. All
payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by the Borrower hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable Principal Office in Dollars or the
Applicable Alternative Currency, if any, and in Same Day Funds not later than
2:00 P.M. on the date specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this
Agreement be made in the United States. If, for any reason, the Borrower is
prohibited by any Law from making any required payment hereunder in an
Alternative Currency, the Borrower shall make such payment in Dollars in the
Dollar Equivalent of the Alternative Currency payment amount. The Administrative
Agent will promptly distribute to each Lender its Applicable Commitment
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender's Lending Office. All
payments received by the Administrative Agent (i) after 2:00 P.M., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance herein and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day
Funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the Overnight Rate and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Revolving Loan
included in such borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in Same Day Funds with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Overnight Rate.
A notice of the Administrative Agent to any Lender or Borrower with respect
to any amount owing under this subsection (b) shall be conclusive, absent
manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender to the
Borrower as provided for herein, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable
credit extension set forth in Article VI are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender within three
(3) Business Days, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 12.4(c) are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 12.4(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 12.4(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
4.6. Fees.
(a) Facility Fee. For the period beginning on the Closing Date and ending
on the Revolving Credit Termination Date, the Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a facility fee (the "Facility Fee") equal to
the Applicable Margin for calculating the Facility Fee multiplied by the average
daily amount of the Total Revolving Credit Commitment. Such payments of Facility
Fees provided for in this Section 4.6(a) shall be due in arrears on the last
Business Day of each March, June, September and December commencing on the
Closing Date to and on the Revolving Credit Termination Date. The Facility Fee
shall be calculated quarterly in arrears and shall be computed on the basis of a
360-day year and actual days elapsed, and if there is any change in the
Applicable Margin during any quarter, the daily amount shall be computed and
multiplied by the Applicable Margin for each period during which such Applicable
Margin was in effect. Notwithstanding the foregoing, so long as any Lender fails
to make available in accordance with the terms of this Agreement any portion of
its Revolving Credit Commitment when requested, such Lender shall not be
entitled to receive payment of its pro rata share of such fee until such Lender
shall make available such portion.
(b) Utilization Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a utilization fee (the "Utilization Fee")
equal to the Applicable Margin for calculating the Utilization Fee multiplied by
the average daily amount of the Total Revolving Credit Commitment on each day
that the Outstandings exceed fifty percent (50%) of the actual daily amount of
the Total Revolving Credit Commitment. Such payments of Utilization Fees
provided for in this Section 4.6(b) shall be due in arrears on the last Business
Day of each March, June, September and December commencing on the Closing Date
to and on the Revolving Credit Termination Date. The Utilization Fee shall be
calculated quarterly in arrears and shall be computed on the basis of a 360-day
year and actual days elapsed, and if there is any change in the Applicable
Margin during any quarter, the daily amount shall be computed and multiplied by
the Applicable Margin for each period during which such Applicable Margin was in
effect. The Utilization Fee shall accrue at all times during which Outstandings
exceed fifty percent (50%) of the actual daily amount of the Total Revolving
Credit Commitment, including at any time during which one or more of the
conditions in Article VI is not met.
(c) Letter of Credit Fronting and Administrative Fees. The Borrower shall
pay to the L/C Issuer a fronting fee as set forth in the Fee Letter.
(d) Additional Fees. In addition to any fees described above, the Borrower
agrees to pay to the Administrative Agent and the L/C Issuer such other fees as
may be agreed to from time to time in a separate writing or writings.
4.7. Pro Rata Payments. Except as otherwise specified herein, (a) each
payment and prepayment on account of the principal of and interest on Loans, the
fees described in Section 4.6(a) and (b), and Unreimbursed Amounts as to which
the Lenders have funded their respective Lender Participations which remain
outstanding, shall be made to the Administrative Agent for the account of the
Lenders in the aggregate amount payable to the Lenders pro rata based on their
Applicable Commitment Percentages, and (b) each payment of principal of and
interest on the Swing Line Loans shall be made to the Swing Line Lender. All
payments to be made by the Borrower hereunder, shall be made without set-off or
counterclaim. The Administrative Agent will promptly distribute to the Lenders
in immediately available funds payments received in fully collected, immediately
available funds from the Borrower.
4.8. Computation of Rates and Fees. All computations of interest for Base
Rate Loans when the Base Rate is determined by Bank of America's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 4.5, bear interest
for one day. Each determination by the Administrative Agent of an interest rate
or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.
4.9. Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Revolving Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Revolving Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the Revolving Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and other amounts owing them, provided that:
(a) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(b) the provisions of this Section shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Revolving Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall
apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
4.10. Deficiency Advances; Failure to Purchase Lender Participations. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Loan or Advance hereunder or to fund
its purchase of any Lender Participation hereunder nor shall any Lender's
Revolving Credit Commitment, Letter of Credit Commitment or obligation to
purchase a Lender Participation in Swing Line Loans be increased as a result of
such default of any other Lender. Without limiting the generality of the
foregoing or the provisions of Section 4.5, in the event any Lender shall fail
to advance funds to the Borrower as herein provided, the Administrative Agent
may in its discretion, but shall not be obligated to, advance under the
applicable Note in its favor as a Lender all or any portion of such amount or
amounts (each, a "deficiency advance") and shall thereafter be entitled to
payments of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Lender would
have been entitled had it made such Advance under its applicable Note; provided
that, (a) such defaulting Lender shall not be entitled to receive payments of
principal, interest or fees with respect to such deficiency advance until such
deficiency advance (together with interest thereon as provided in clause (b))
shall be paid by such Lender and (b) upon payment to the Administrative Agent
from such other Lender of the entire outstanding amount of each such deficiency
advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to the Administrative Agent by the Borrower on
each Loan comprising the deficiency advance at the Federal Funds Rate, then such
payment shall be credited against the applicable Note of the Administrative
Agent in full payment of such deficiency advance and the Borrower shall be
deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any
payments of interest were made by the Borrower thereon. In the event any Lender
shall fail to fund its purchase of a Lender Participation after notice from the
L/C Issuer or the Swing Line Lender, as applicable, such Lender shall pay to the
L/C Issuer or the Swing Line Lender, as applicable, such amount on demand,
together with interest at the Federal Funds Rate on the amount so due from the
date of such notice to the date such purchase price is received by the L/C
Issuer or the Swing Line Lender, as applicable. In the event any Lender shall
fail to advance funds to the Borrower as herein provided and such failure shall
continue for a period in excess of ten (10) Business Days, then, notwithstanding
the provisions of Section 2.1(e) hereof, the Borrower may terminate such
Lender's Revolving Credit Commitment by repaying in full the amount of all
principal and interest due such Lender under such Lender's Notes and all other
amounts due hereunder.
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar Rate
Loans, its Note, or its obligation to make Eurodollar Rate Loans, or
change the basis of taxation of any amounts payable to such Lender (or
its Applicable Lending Office) under this Agreement or its Note in
respect of any Eurodollar Rate Loans (other than taxes imposed on the
overall net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment or similar requirement (other than the
Reserve Requirement utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office), including Revolving Credit Commitment
of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this Section 5.1(a), the Borrower may, by notice to such Lender (with a copy to
the Administrative Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is requested,
or to Convert Loans of any other Type into Loans of such Type, until the event
or condition giving rise to such request ceases to be in effect (in which case
the provisions of Section 5.4 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction suffered.
(c) Each Lender shall promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section 5.1 and
will designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to it. Any Lender
claiming compensation under this Section 5.1 shall furnish to the Borrower and
the Administrative Agent a statement setting forth the nature of the change
giving rise to the compensation requested and the calculations, in reasonable
detail, setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
(d) Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender's or the L/C Issuer's right to demand such
compensation, provided that the Borrower shall not be required to compensate a
Lender or the L/C Issuer pursuant to the foregoing provisions of this Section
for any increased costs incurred or reductions suffered more than one hundred
eighty (180) days prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrower of such adoption of or change in law giving
rise to such increased costs or reductions and of such Lender's or the L/C
Issuer's intention to claim compensation therefor (except that, if such adoption
of or change in law giving rise to such increased costs or reductions is
retroactive, then the one hundred eighty (180) day period referred to above
shall be extended to include the period of retroactive effect thereof).
(e) The provisions of this Section 5.1 shall continue in effect
notwithstanding the Facility Termination Date.
5.2. Limitation on Types of Loans. If on or prior to the first day of any
Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) 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 Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of such Type,
or to Convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of any Lender to make a
Eurodollar Rate Loan or to Continue, or to Convert Loans of any other Type into,
Loans of a particular Type shall be suspended pursuant to Section 5.2 or 5.3
hereof (Loans of such Type being herein called "Affected Loans" and such Type
being herein called the "Affected Type"), such Lender's Affected Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 5.3 hereof, on such earlier date as such Lender may specify
to the Borrower with a copy to the Administrative Agent) and, unless and until
such Lender gives notice as provided below that the circumstances specified in
Section 5.2 or 5.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as Loans of the Affected Type shall be made or Converted instead as Base
Rate Loans, and all Loans of such Lender that would otherwise be Converted
into Loans of the Affected Type shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 5.2 or 5.3 hereof that gave
rise to the maintenance or Conversion of such Lender's Affected Loans pursuant
to this Section 5.4 no longer exist (which such Lender agrees to do promptly
upon such circumstances ceasing to exist) at a time when Loans of the Affected
Type made by other Lenders are outstanding, such Lender's Base Rate Loans shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
5.5. Compensation. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any actual loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurodollar Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan notwithstanding satisfaction of all
conditions precedent thereto) to prepay, borrow, Continue or Convert any
Eurodollar Rate Loan on the date or in the amount notified by the Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
A determination of a Lender as to the amounts payable pursuant to this Section
5.5 shall be conclusive absent manifest error. The Lender requesting
compensation under this Section 5.5 shall furnish to an Authorized
Representative and the Administrative Agent calculations in reasonable detail
setting forth such Lender's determination of the amount of such compensation
which shall be paid within thirty (30) days of the submission of such
determination.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 5.5, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
applicable offshore Dollar interbank market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
The provisions of this Section 5.5 shall survive the Facility Termination
Date.
5.6. Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable under this
Agreement or any other Loan Document to any Lender or the Administrative Agent,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 5.6) such Lender or the Administrative Agent, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to such Lender or the Administrative Agent, as applicable, at its
address referred to in Section 12.2, the original or a certified copy of a
receipt, as applicable, evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 5.6) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender shall provide the Borrower and the Administrative Agent two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto (relating to
such Person and entitling it to an exemption from, or reduction of, withholding
tax on all payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Person by the Borrower pursuant to this Agreement) or such
other evidence satisfactory to the Borrower and the Administrative Agent that
such Person is entitled to an exemption from, or reduction of, U.S. withholding
tax. Thereafter and from time to time, each such Person shall (a) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Person by the Borrower pursuant to
this Agreement, (b) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (c) take such steps as shall not be materially disadvantageous to
it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its lending office) to avoid any
requirement of applicable laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Person. If any Governmental
Authority asserts that the Administrative Agent did not properly withhold any
tax or other amount from payments made in respect of such Person due solely to
the failure of such Person to deliver the foregoing documentation or failure to
provide the foregoing notification, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Administrative Agent
under this sentence, and costs and expenses (including the reasonable fees and
expenses of counsel (including the allocated cost of internal counsel)) of the
Administrative Agent. The obligation of the Lenders under this Section shall
survive the resignation or replacement of the Administrative Agent and shall
continue in effect notwithstanding the Facility Termination Date.
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Administrative Agent with the appropriate form pursuant to
Section 5.6(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 5.6(a) or 5.6(b) with respect to Taxes imposed by the United
States; provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 5.6, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent or the applicable Lender the
original or a certified copy of a receipt evidencing such payment.
(h) The provisions of this Section 5.6 shall continue in effect
notwithstanding the Facility Termination Date.
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance. The effectiveness of this Agreement and
the obligation of the Lenders to make the initial Advance under the Revolving
Credit Facility, and of the L/C Issuer to issue any Letter of Credit, and of the
Swing Line Lender to make any Swing Line Loan, is subject to the conditions
precedent that:
(a) the Administrative Agent shall have received on the Closing Date,
in form and substance reasonably satisfactory to the Administrative Agent
and the Lenders, the following:
(i) executed originals of each of this Agreement, the Notes, the
Facility Guaranties, and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with respect to
the Loan Documents and the transactions contemplated thereby of
counsel to the Credit Parties dated the Closing Date, addressed to the
Administrative Agent and the Lenders and reasonably satisfactory to
Helms Mulliss & Wicker, PLLC, special counsel to the Administrative
Agent, as to the matters set forth on Exhibit G or such other form as
is accepted by the Administrative Agent;
(iii) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of each
Credit Party certified by its secretary or assistant secretary or
other appropriate officer as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, authorizing
the execution, delivery and performance thereof and appointing (in the
case of the Borrower) the initial Authorized Representative(s);
(iv) specimen signatures of officers or other appropriate
representatives executing the Loan Documents on behalf of each of the
Credit Parties, certified by the secretary or assistant secretary or
other appropriate official of such Credit Party;
(v) the Organizational Documents of each of the Credit Parties
certified as of a recent date by the Secretary of State of its
jurisdiction of organization;
(vi) Operating Documents of each of the Credit Parties certified
as of the Closing Date as true and correct by its secretary or
assistant secretary;
(vii) certificates issued as of a recent date by the Secretaries
of State of the respective jurisdictions of formation of each of the
Credit Parties as to the due existence and good standing of such
Person; (viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to conduct
business under assumed name, issued in respect of each of the Credit
Parties as of a recent date by the Secretary of State or comparable
official of each jurisdiction in which the failure to be qualified to
do business or authorized so to conduct business could have a Material
Adverse Effect;
(ix) consolidated balance sheets of the Parent, the Borrower and
its Subsidiaries for the Fiscal Years ended 2002, 2003 and 2004, and
the notes thereto, and the related consolidated statements of
operations, income, stockholders' equity and cash flows, and the
respective notes thereto, for such Fiscal Years, setting forth
comparative financial statements for and as of the end of the
preceding Fiscal Year, all in reasonable detail and prepared in
accordance with GAAP, accompanied by a report and opinion of
independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as
to the scope of such audit;
(x) notice of appointment of the initial Authorized
Representative(s);
(xi) a certificate (a "Compliance Certificate") of an Authorized
Representative dated the Closing Date demonstrating compliance with
the financial covenants contained in Sections 9.1(a) and 9.1(b) as of
the end of the Fiscal Quarter most recently reported prior to the
Closing Date, substantially in the form of Exhibit H;
(xii) [Intentionally omitted];
(xiii) an initial Borrowing Notice, if any, and, if elected by
the Borrower, Interest Rate Selection Notice;
(xiv) evidence that all accrued and unpaid fees payable by the
Borrower on the Closing Date to the Administrative Agent, BAS and the
Lenders have been paid in full, including the due diligence expenses
of the Administrative Agent and BAS and the reasonable fees and
expenses of counsel for the Administrative Agent and BAS to the extent
invoiced prior to or on the Closing Date (which may include amounts
constituting reasonable estimates of such fees and expenses incurred
or to be incurred in connection with the transaction; provided that no
such estimate shall thereafter preclude the final settling of accounts
as to such fees and expenses);
(xv) a certificate of an Authorized Representative of the
Borrower certifying the current Debt Ratings;
(xvi) a certificate of the Treasurer of the Borrower as to the
matters described in Section 6.1(b)(i) through (iii);
(xvii) evidence that that certain $300,000,000 credit agreement
dated as of June 22, 2001, among the Borrower, Bank of America, as
administrative agent, the lenders party thereto from time to time, The
Bank of Nova Scotia, as syndication agent, Credit Lyonnais New York
Branch and Fleet National Bank, as co-documentation agents, and BAS,
as sole lead arranger and sole book manager (as amended, restated,
modified or supplemented prior to the date hereof, the "Existing
Credit Agreement") has been or concurrently with the Closing Date is
being terminated and all obligations and liabilities thereunder (other
than continuing obligations in the nature of indemnities for amounts
not yet due and payable) shall have been or are concurrently with the
Closing Date being paid and satisfied in full; provided that, upon
execution of this Agreement, each Lender hereto that is party to the
Existing Credit Agreement waives the notice provision for early
termination of the Existing Credit Agreement set forth in Section 2.1
thereunder; and
(xviii) such other documents, instruments, certificates and
opinions as the Administrative Agent or any Lender may reasonably
request on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby.
(b) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) there shall not have occurred or become known to the
Administrative Agent or the Lenders any facts, information, event,
condition, situation or status since February 28, 2004 concerning the
Credit Parties prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) except as set forth in the Parent's Current SEC Filings, no
litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened
in writing which could reasonably be likely to result in a Material
Adverse Effect; and
(iii) the Credit Parties shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral
authority or (B) any agreement, document or instrument to which any of
the Credit Parties is a party or by which any of them or their
properties is bound, except for such approvals, consents, waivers,
filings and notices for which the non-receipt, making or giving of
which will not have a Material Adverse Effect.
Without limiting the generality of the provisions of Section 11.4, for
purposes of determining compliance with the conditions specified in this Section
6.1, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
6.2. Conditions of Revolving Loans and Letter of Credit. The obligations of
the Lenders to make any Advances and the L/C Issuer to issue (or renew) Letters
of Credit and the Swing Line Lender to make Swing Line Loans, hereunder on or
subsequent to the Closing Date are subject to the satisfaction of the following
conditions:
(a) the Administrative Agent or, in the case of Swing Line Loans, the
Swing Line Lender shall have received a Borrowing Notice as required by
Article II and the Lenders have received notice of receipt of such notice
of borrowing or request pursuant to Section 2.1(c)(i) hereof;
(b) the representations and warranties of the Credit Parties set forth
in Article VII and in each of the other Loan Documents shall be true and
correct on and as of the date of such Advance, Swing Line Loan or Letter of
Credit issuance or renewal, with the same effect as though such
representations and warranties had been made on and as of such date, except
(i) to the extent that such representations and warranties expressly relate
to an earlier date, (ii) that the representations and warranties set forth
in Sections 7.4 and 7.6 hereof shall be deemed to include and take into
account any merger or consolidation permitted under Section 9.6 hereof, and
(iii) that the financial statements referred to in Section 7.6(a) shall be
deemed to be those financial statements most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 8.1;
(c) in the case of the issuance of a Letter of Credit, the Borrower
shall have executed and delivered to the L/C Issuer a Letter of Credit
Application in form and content reasonably acceptable to the L/C Issuer
together with such other instruments and documents as it shall reasonably
request;
(d) at the time of (and after giving effect to) each Advance, Swing
Line Loan or the issuance or renewal of a Letter of Credit, no Default or
Event of Default specified in Article X shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, a Swing Line Loan or a Letter of Credit or
renewal thereof, (1) the sum of the Outstandings shall not exceed the
Total Revolving Credit Commitment and (2) each Lender's Applicable
Commitment Percentage of Revolving Loans and Lender Participations
shall not exceed its Revolving Credit Commitment; and
(ii) a Letter of Credit or renewal thereof, the aggregate
principal balance of all outstanding Lender Participations in Letters
of Credit and Unreimbursed Amounts (or in the case of the L/C Issuer,
its remaining interest after deduction of all Lender Participations of
the Lenders in Letters of Credit and Unreimbursed Amounts) for each
Lender and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Letter of Credit
Sublimit; and
(iii) a Swing Line Loan, the Swing Line Outstandings shall not
exceed the Swing Line Sublimit.
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants with respect to itself, to the Parent
and to its Subsidiaries (which representations and warranties shall survive the
delivery of the Loan Documents and the making of Loans and issuance of Letters
of Credit), that:
7.1. Organization and Authority.
(a) Each Credit Party is a corporation, partnership or limited
liability company duly organized and validly existing under the laws of the
jurisdiction of its organization;
(b) Each Credit Party (i) has the requisite power and authority to own
its properties and assets and to carry on its business as now being
conducted and as contemplated in the Loan Documents, and (ii) is qualified
to do business and in good standing in every jurisdiction in which failure
to be so qualified or in good standing could reasonably be expected to have
a Material Adverse Effect;
(c) The Borrower has the power and authority to execute, deliver and
perform this Agreement and the Notes, and to borrow and request issuance of
Letters of Credit hereunder, and to execute, deliver and perform each of
the other Loan Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the power and
authority to execute, deliver and perform the applicable Facility Guaranty
and each of the other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to which
any Credit Party is a party will be the legal, valid and binding obligation
or agreement, as the case may be, of such Credit Party, enforceable against
such Credit Party in accordance with its terms, subject to the effect of
any applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights generally and
to the effect of general principles of equity which may limit the
availability of equitable remedies (whether considered in a proceeding at
law or in equity).
7.2. Loan Documents. The execution, delivery and performance by each Credit
Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational Action
of such Credit Party required for the lawful execution, delivery and
performance thereof;
(b) do not violate the Organizational Documents or Operating Documents
of such Credit Party and do not violate in a manner that would reasonably
be likely to have a Material Adverse Effect any provisions of (i) any
applicable law, rule or regulation, or (ii) any judgment, writ, order,
determination, decree or arbitral award of any Governmental Authority or
arbitral authority binding on such Credit Party or its properties, or;
(c) does not and will not be in conflict with, result in a breach of
or constitute an event of default, or an event which, with notice or lapse
of time or both, would constitute an event of default in a manner that
would reasonably be likely to have a Material Adverse Effect under any
contract, indenture, agreement or other instrument or document to which
such Credit Party is a party, or by which the properties or assets of such
Credit Party are bound; and
(d) does not and will not result in the creation or imposition of any
material Lien, charge or encumbrance of any nature whatsoever upon any of
the properties or assets of such Credit Party or any Subsidiary except any
Liens in favor of the Administrative Agent and the Lenders created by the
Loan Documents.
7.3. Solvency. Each Credit Party is Solvent after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents.
7.4. Material Subsidiaries and Stockholders. The Borrower has no Material
Subsidiaries other than those Persons listed as Material Subsidiaries in
Schedule 7.4 and additional Subsidiaries created or acquired after the Closing
Date in compliance with Section 8.19; Schedule 7.4 states as of the date hereof
the correct name of each Material Subsidiary, the jurisdiction of organization
of each Material Subsidiary, the organizational form of each entity, the
authorized and issued capitalization of each Subsidiary listed thereon, the
number of shares or other equity interests of each class of capital stock or
interest issued and outstanding of each such Material Subsidiary and the number
and/or percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire any interest) of each such class
of capital stock or other equity interest owned by the Borrower; the outstanding
shares or other equity interests of each Material Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable; and Borrower
owns beneficially and of record all the issued and outstanding shares of capital
stock or equity interests of each Material Subsidiary owned by it, free and
clear of any Lien.
7.5. Compliance with Laws. Each Credit Party is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
7.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender an audited
consolidated balance sheet of the Parent, the Borrower and its Subsidiaries
as at February 28, 2004 and the notes thereto and the related consolidated
statements of operations, cash flows, and stockholders' equity for the
Fiscal Year then ended as examined and certified by Ernst & Young LLP.
Except as set forth therein, such financial statements (including the notes
thereto) present fairly the financial condition and results of operations
of the Parent, the Borrower and its Subsidiaries as of the end of and for
such Fiscal Year, all in conformity with GAAP applied on a Consistent
Basis;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 7.6(a) hereof and (ii) the date of
the audited financial statements most recently delivered pursuant to
Section 8.1(a) hereof, there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to have a
Material Adverse Effect, nor have the businesses, properties or operations
of the Parent, the Borrower and its Subsidiaries, considered as a whole,
been materially adversely affected as a result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo or act of God; and
(c) except as set forth in Schedule 7.6 or Parent's Current SEC
Filings, neither the Parent, the Borrower nor any Subsidiary has incurred,
other than in the ordinary course of business, any material Indebtedness.
Neither the Parent, the Borrower nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal
or interest on any Indebtedness of the Parent, the Borrower or such
Subsidiary and no event or condition exists with respect to any
Indebtedness of the Parent, the Borrower or any Subsidiary the outstanding
principal amount of which exceeds $30,000,000 that would permit (or that
with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Indebtedness to become due and payable before its
stated maturity or before its regularly scheduled dates of payment.
7.7. Title to Properties. The Borrower and each of its Material
Subsidiaries and each other Credit Party has title to all its material real and
personal properties, which is not subject to any transfer restrictions or Liens
of any kind, except (a) for the transfer restrictions and Liens described in
Schedule 7.7, (b) for Liens permitted by Section 9.2, and (c) where a failure to
have such title would not reasonably be likely to have a Material Adverse
Effect. All material leases that the Borrower is a party to as lessee are (as
against the Borrower and, to the best knowledge of the Borrower, as against the
lessor thereunder) valid and subsisting and are in full force and effect in all
material respects.
7.8. Taxes. Except as set forth in Schedule 7.8, the Borrower and each of
its Subsidiaries and each other Credit Party has filed or caused to be filed or
caused to be properly extended all federal, state, local and foreign tax returns
which are required to be filed by it and, except for taxes and assessments being
contested in good faith by appropriate proceedings diligently conducted and
against which reserves reflected in the financial statements described in
Section 7.6(a) or Sections 8.1(a) or (b) and satisfactory to the Borrower's
independent certified public accountants have been established, have paid or
caused to be paid all material taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become and remain
due and before they have become delinquent. The federal income tax liability of
the Borrower and its Subsidiaries has been determined by the Internal Revenue
Service and paid for all Fiscal Years up to and including the Fiscal Year ended
February 28, 1998.
7.9. Other Agreements. No Credit Party is
(a) a party to or subject to any judgment, order, decree, agreement,
lease or instrument, or subject to other restrictions, which individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect; or
(b) in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any agreement or
instrument to which such Credit Party is a party, which default has, or if
not remedied within any applicable grace period could reasonably be likely
to have, a Material Adverse Effect.
7.10. Litigation. Except as set forth in Parent's Current SEC Filings,
there is no action, suit, investigation or proceeding at law or in equity or by
or before any Governmental Authority or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against any Credit Party or
affecting any Credit Party or any properties or rights of a Credit Party, which
could reasonably be likely to have a Material Adverse Effect.
7.11. Margin Stock. The proceeds of the borrowings made hereunder will be
used by the Borrower only for the purposes expressly authorized herein. None of
such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the Board. Neither the Borrower, the Parent nor any other Credit Party
nor any agent acting on their respective behalf has taken or will take any
action which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof.
7.12. Regulated Company. No Credit Party is (i) an "investment company," or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss.ss. 80a-1, et seq.) or (ii) a "holding company"
or a "subsidiary company" or "affiliate" of a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended. The
Letters of Credit and application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower and the other Credit
Parties of the transactions contemplated by the Loan Documents will not violate
any provision of the foregoing acts, or any rule, regulation or order issued by
the SEC thereunder, in each case as in effect on the date hereof.
7.13. Patents, Etc. Each Credit Party owns or has the right to use, under
valid license agreements or otherwise, all patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights, or rights thereto, that are material or necessary to the business,
operations, affairs, financial condition, assets or properties of the Parent or
the Borrower or its Subsidiaries taken as a whole, as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trade secret, trade name, copyright, other
proprietary right of any other Person, except for those conflicts that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
7.14. No Untrue Statement. Neither (a) this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent or the Lenders in connection with the negotiation or
preparation of the Loan Documents contains any misrepresentation or untrue
statement of material fact or omits to state a material fact necessary, in light
of the circumstance under which it was made, in order to make any such warranty,
representation or statement contained therein not misleading in any material
respect.
7.15. No Consents, Etc. Neither the respective businesses or properties of
the Parent, the Borrower or any of its Subsidiaries, nor any relationship
between the Parent, the Borrower and any of its Subsidiaries, on the one hand,
and any other Person, on the other, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
other authority or any other Person on the part of the Parent, the Borrower or
any of its Subsidiaries as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by this
Agreement or the other Loan Documents, which, if not obtained or effected, would
be reasonably likely to have a Material Adverse Effect, or if so, such consent,
approval, authorization, filing, registration or qualification has been duly
obtained or effected, as the case may be.
7.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance with all
applicable provisions of ERISA and the regulations and published
interpretations thereunder and in compliance with all Foreign Benefit Laws
with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section
401(b) of the Code has not yet expired. Each Employee Benefit Plan that is
intended to be qualified under Section 401(a) of the Code has been
determined or the Borrower or its Subsidiaries is in the process of
obtaining a determination by the Internal Revenue Service to be so
qualified, each trust related to such plan has been determined to be exempt
under Section 501(a) of the Code, and each Employee Benefit Plan subject to
any Foreign Benefit Law has received the required approvals by any
Governmental Authority regulating such Employee Benefit Plan. No material
liability has been incurred by the Borrower or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i) engaged in a
nonexempt prohibited transaction described in Section 4975 of the Code or
Section 406 of ERISA affecting any of the Employee Benefit Plans or the
trusts created thereunder which could subject any such Employee Benefit
Plan or trust to a material tax or penalty on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA, (ii) incurred
any accumulated funding deficiency with respect to any Employee Benefit
Plan, whether or not waived, or any other liability to the PBGC which
remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (iii) failed to make a required
contribution or payment to a Multiemployer Plan, (iv) failed to make a
required installment or other required payment under Section 412 of the
Code, Section 302 of ERISA or the terms of such Employee Benefit Plan, or
(v) failed to make a required contribution or payment, or otherwise failed
to operate in compliance with any Foreign Benefit Law regulating any
Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably expected to
occur with respect to any Pension Plan or Multiemployer Plan, and neither
the Borrower nor any ERISA Affiliate has incurred any unpaid withdrawal
liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under each
Employee Benefit Plan which is subject to Title IV of ERISA, or the funding
of which is regulated by any Foreign Benefit Law did not, as of the most
recent valuation date for each such plan, exceed the then current value of
the assets of such Employee Benefit Plan allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee Benefit
Plan which is subject to Title IV of ERISA or the funding of which is
regulated by any Foreign Benefit Law, maintained by the Borrower or any
ERISA Affiliate, has been administered in accordance with its terms in all
material respects and is in compliance in all material respects with all
applicable requirements of ERISA, applicable Foreign Benefit Law and other
applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the Letters of
Credit provided for herein will not involve any prohibited transaction
under ERISA which is not subject to a statutory or administrative
exemption; and
(g) No material proceeding, claim, lawsuit and/or investigation exists
or, to the best knowledge of the Borrower after due inquiry, is threatened
concerning or involving any Employee Benefit Plan (other than routine
claims for benefits).
7.17. No Default. As of the date hereof, to the knowledge of each
Authorized Representative, there does not exist any Default or Event of Default.
7.18. Environmental Laws. Except as listed in Schedule 7.18, the Parent,
the Borrower and each of its Subsidiaries are in compliance with all applicable
Environmental Laws and have been issued and currently maintain all required
federal, state and local permits, licenses, certificates and approvals except to
the extent non-compliance could not reasonably be expected to have a Material
Adverse Effect. Except as listed in Schedule 7.18, neither the Parent, the
Borrower nor any of its Subsidiaries has been notified of any pending or
threatened action, suit, proceeding or investigation, and neither the Parent,
the Borrower nor any of its Subsidiaries is aware of any facts, which (a) calls
into question, or could reasonably be expected to call into question, compliance
by the Parent, the Borrower or any Subsidiary with any Environmental Laws which
non-compliance could reasonably be expected to have a Material Adverse Effect,
(b) seeks, or could reasonably be expected to form the basis of a meritorious
proceeding, to suspend, revoke or terminate any license, permit or approval
necessary for the operation of the Parent's, the Borrower's or any Subsidiary's
business or facilities or for the generation, handling, storage, treatment or
disposal of any Hazardous Materials which suspension, revocation or termination
could reasonably be expected to have a Material Adverse Effect, or (c) seeks to
cause, or could reasonably be expected to form the basis of a meritorious
proceeding to cause, any property of the Parent, the Borrower or any Subsidiary
to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Law which restrictions could reasonably
be expected to have a Material Adverse Effect.
7.19. Employment Matters. Except as listed in Schedule 7.19 and except to
the extent a failure to maintain compliance would not have a Material Adverse
Effect or except as disclosed on the Borrower's Form 10-K filed with the SEC for
the Borrower's Fiscal Year ended February 28, 2004, the Borrower and each
Subsidiary and each other Credit Party is in compliance in all material respects
with all applicable laws, rules and regulations pertaining to labor or
employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation, and there is neither pending nor, to
the knowledge of the Borrower, threatened any litigation, administrative
proceeding or investigation, in respect of such matters which, if decided
adversely, could reasonably be likely, individually or in the aggregate, to have
a Material Adverse Effect.
7.20. RICO; Foreign Corrupt Practices Act. Except as disclosed in the
Parent's Current SEC Filings, neither the Borrower, any Material Subsidiary nor
any other Credit Party is engaged in or has engaged in any course of conduct
that could reasonably be expected to subject any of their respective properties
to any Lien, seizure or other forfeiture, or result in the judgment or
imposition of any material fine, damage, award or other monetary claim payable
thereby or the cancellation or termination of any material contract or agreement
to which any of the Borrower, any Material Subsidiary or any other Credit Party
is a party, under any foreign or domestic criminal law, antibribery or other
government contracting law, racketeer influenced and corrupt organizations law,
civil or criminal, or any other similar laws or regulations.
7.21. Foreign Assets Control Regulations, Etc. Neither the Indebtedness
incurred by the Borrower hereunder nor the Borrower's use of the proceeds
thereof will violate the Trading with the Enemy Act, as amended, or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
7.22. Insurance. The properties of the Borrower and each of its Material
Subsidiaries and each other Credit Party are insured either with GTECH
Reinsurance or with financially sound and reputable insurance companies not
Affiliates of the Borrower pursuant to the insurance policies as listed and
described in Schedule 7.22 as of the Closing Date or any additional insurance
policies thereafter as delivered to the Administrative Agent.
ARTICLE VIII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable, will
cause each other Credit Party to, and the Parent will, where applicable:
8.1. Financial Reports, Etc. (a) As soon as practical and in any event
within ninety-five (95) days after the end of each Fiscal Year or within ten
(10) days after filing thereof with the SEC, if earlier, deliver or cause to be
delivered to the Administrative Agent and each Lender (i) consolidated balance
sheets of the Parent, the Borrower and its Subsidiaries as at the end of such
Fiscal Year, and the notes thereto, and the related consolidated statements of
operations, stockholders' equity and cash flows, and the respective notes
thereto, for such Fiscal Year, setting forth comparative financial statements
for and as of the end of the preceding Fiscal Year, all prepared in accordance
with GAAP applied on a Consistent Basis and containing opinions of Ernst & Young
LLP, or other such independent certified public accountants of nationally
recognized standing selected by the Borrower, which are unqualified as to the
scope of the audit performed and as to the "going concern" status of the Parent
and its Subsidiaries and without any exception not reasonably acceptable to the
Required Lenders, and (ii) a certificate of an Authorized Representative who
also is an officer of the Parent as to the absence of any Default or Event of
Default and demonstrating compliance with Section 9.1, which certificate shall
be in the form of Exhibit H;
(b) as soon as practical and in any event within fifty (50) days after the
end of each Fiscal Quarter or within ten (10) days after filing thereof with the
SEC, if earlier (except the last Fiscal Quarter of the Fiscal Year), deliver to
the Administrative Agent and each Lender (i) consolidated balance sheets of the
Parent, the Borrower and its Subsidiaries as at the end of such Fiscal Quarter,
and the related consolidated statements of operations and stockholders' equity
for such Fiscal Quarter and statements of cash flow for the period from the
beginning of the then current Fiscal Year through the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding periods from the preceding Fiscal Year and accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Parent, the Borrower and
its Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, prepared in conformity with GAAP applied on a Consistent Basis, without
notes and subject to year-end audit adjustments, and (ii) a certificate of an
Authorized Representative as to the absence of any Default or Event of Default
and containing computations for such quarter comparable to that required
pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Administrative Agent and each Lender a letter
from the Parent's and the Borrower's accountants specified in Section 8.1(a)(i)
stating that in performing the audit necessary to render an opinion on the
financial statements delivered under Section 8.1(a)(i), they obtained no
knowledge of any Default or Event of Default, insofar as such Default or Event
of Default relates to financial and accounting matters that were included in the
scope of the audit performed, by the Parent, the Borrower and its Subsidiaries
in the fulfillment of the terms and provisions of this Agreement (which at the
date of such statement remains uncured); or if the accountants have obtained
knowledge of such Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) concurrently with the delivery of the financial statements referred to
in Sections 8.1(a) and (b), a duly completed Compliance Certificate signed by an
Authorized Representative of the Borrower;
(e) promptly upon their becoming available to the Borrower, the Borrower
shall deliver to the Administrative Agent and each Lender a copy of (i) all
regular or special reports or effective registration statements which the
Parent, the Borrower or any Subsidiary shall file with the SEC or any securities
exchange, and (ii) any proxy statement distributed by the Parent, the Borrower
or any Subsidiary to its shareholders, bondholders or the financial community in
general, all such reports and statements to be delivered without exhibits unless
otherwise reasonably requested by the Administrative Agent; and
(f) promptly, from time to time, deliver or cause to be delivered to the
Administrative Agent and each Lender such other information regarding Borrower's
and any Subsidiary's operations, business affairs, assets, properties and
financial condition as the Administrative Agent or such Lender may reasonably
request.
Documents required to be delivered pursuant to Section 8.1 (to the extent
any such documents are included in materials otherwise filed with the SEC) may
be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower's website on the Internet at the website
address listed in Schedule 12.2; or (ii) on which such documents are posted on
the Borrower's behalf on an Internet or intranet website, if any, to which each
Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (ii) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of
the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 8.1(d) to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Administrative Agent and the Lenders are hereby authorized to deliver a
copy of any such financial information delivered hereunder to the Lenders (or
the parent of any Lender or a wholly-owned subsidiary of the parent of any
Lender) or to the Administrative Agent, to any regulatory authority having
jurisdiction over the Administrative Agent or any of the Lenders pursuant to any
written request therefor, or, subject to Section 12.6(d) hereof, to any other
Person who shall acquire or consider the acquisition of a participation interest
in or assignment of any Loan or Letter of Credit permitted by this Agreement or
as otherwise permitted pursuant to Section 12.7 hereof.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or
Banc of America Securities LLC and Calyon New York Branch, in their capacity as
joint lead arrangers (the "Joint Lead Arrangers") will make available to the
Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the Borrower hereunder (collectively, "Borrower Materials") by posting the
Borrower Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect
to the Borrower or its securities) (each, a "Public Lender"). The Borrower
hereby agrees that (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a
minimum, shall mean that the word "PUBLIC" shall appear prominently on the first
page thereof; (x) by marking Borrower Materials "PUBLIC", the Borrower shall be
deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer
and the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials
marked "PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor"; and (z) the Administrative Agent and the
Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are
not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor".
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted), make all needed repairs, replacements and renewals to such
properties, and preserve, protect and maintain free from Liens (other than Liens
permitted under Section 9.2 hereof) all material trademarks, trade names,
patents, copyrights, trade secrets, know-how, and other intellectual property
and proprietary information (or adequate licenses thereto), in each case as are
necessary or useful to conduct its business as currently conducted or as
contemplated hereby, all in accordance with customary and prudent business
practices.
8.3. Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect (a) its existence and
(b) all material rights, franchises and permits, except to the extent terminated
or conveyed in connection with a transaction permitted under Section 9.4 or 9.6,
and maintain its license or qualification to do business as a foreign
corporation and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary and where the failure to be so licensed or qualified
would be reasonably likely to have a Material Adverse Effect.
8.4. Payments and Obligations. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, except where failure to so
pay and discharge any of the foregoing could not reasonably be expected to have
a Material Adverse Effect, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the relevant Credit Party; (b) all lawful claims which, if unpaid, would by law
become a Lien upon its property, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the relevant Credit Party; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
8.5. Insurance. (a) Keep all of its insurable properties adequately insured
at all times with responsible insurance carriers against loss or damage by fire
and other hazards to the extent and in the manner as are customarily insured
against by similar businesses owning such properties similarly situated, (b)
maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and (c) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes), such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similarly situated entities of established
reputation engaged in the same or similar lines of business and such insurance
policies to be in form reasonably satisfactory to the Administrative Agent. The
Borrower shall use its best efforts to ensure that each of the policies of
insurance described in this Section 8.5 providing material coverage and policy
limits to the Borrower and its Subsidiaries on a consolidated basis will provide
that the insurer shall give the Administrative Agent not less than thirty (30)
days' prior written notice before any such policy shall terminate, lapse, be
cancelled or be materially amended. The Administrative Agent and the Lenders
acknowledge that the Borrower and the other Credit Parties may maintain a
portion of the insurance coverage required under this Section 8.5 pursuant to
the Captive Insurance Program.
8.6. True Books. Keep true books of record and account in which full, true
and correct entries will be made of all of its dealings and transactions in
accordance with customary business practices, and set up on its books such
reserves as may be required by GAAP with respect to doubtful accounts and all
taxes, assessments, charges, levies and claims and with respect to its business
in general, and include such reserves in interim as well as year-end financial
statements.
8.7. Right of Inspection. Permit any Person designated by the
Administrative Agent, at the Administrative Agent's expense (unless a Default or
Event or Default shall exist, then at the Borrower's expense), to visit and
inspect any of the properties, corporate books and financial reports of the
Parent, the Borrower or any of its Subsidiaries and to discuss its or their
affairs, finances and accounts with its or their principal officers and
independent certified public accountants, all at such reasonable times and as
often as the Administrative Agent may reasonably request.
8.8. Observe all Laws. Conform to and duly observe all Laws (including,
without limitation, Environmental Laws), rules and regulations and all other
valid requirements of any Governmental Authority with respect to the conduct of
its business and obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the
ownership of its properties or the conduct of its business, except to the extent
that non-compliance with such requirements or failure to obtain or maintain such
governmental authorizations could not reasonably be expected to have a Material
Adverse Effect.
8.9. Pay Indebtedness to Lenders and Perform Other Covenants. Make full and
timely payment of the principal of and interest on the Notes and all other
Obligations, whether now existing or hereafter arising.
8.10. Covenants Extending to Other Persons. Cause each of its Material
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.9, inclusive.
8.11. Officer's Knowledge of Default. Upon any Authorized Representative
obtaining knowledge of any Default or Event of Default or any default under any
other material obligation of the Parent, the Borrower or any Subsidiary, or any
event, development or occurrence which would have a Material Adverse Effect,
cause such officer or an Authorized Representative to promptly deliver to the
Administrative Agent written notice thereof, the period of existence thereof,
and what action the Borrower proposes to take with respect thereto.
8.12. Suits or Other Proceedings. Upon any Authorized Representative
obtaining knowledge of (a) any litigation or other proceedings (including,
without limitation, any environmental proceedings) being instituted against the
Parent, the Borrower or any Subsidiary or otherwise questioning the validity or
enforceability of, or the ability of any Credit Party to enter into or perform
under, the Loan Documents, or any attachment, levy, execution or other process
being instituted against any assets of the Borrower or any Subsidiary, making a
claim or claims in an aggregate stated amount greater than $30,000,000 not
otherwise covered by insurance, or (b) any material dispute, litigation,
investigation or proceeding between the Parent, the Borrower or any Material
Subsidiary, on the one hand, and any Governmental Authority, on the other,
promptly deliver to the Administrative Agent written notice thereof stating the
nature and status of such dispute, litigation, investigation or proceeding.
8.13. Notice of Environmental Complaint or Condition. Promptly provide to
the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Subsidiary relating to any material (a) violation or alleged
violation by the Parent, the Borrower or any Subsidiary of any applicable
Environmental Law; (b) release or threatened release by the Borrower or any
Subsidiary, or by any Person handling, transporting or disposing of any
Hazardous Material on behalf of the Borrower or any Subsidiary, or at any
facility or property owned or leased or operated by the Borrower or any
Subsidiary, of any Hazardous Material, except where occurring legally pursuant
to a permit or license; or (c) liability or alleged liability of the Borrower or
any Subsidiary for the costs of cleaning up, removing, remediating or responding
to a release of Hazardous Materials.
8.14. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any applicable
Environmental Laws which could reasonably be likely to have a Material Adverse
Effect, promptly deliver a copy of such notice to the Administrative Agent and
use their reasonable best efforts to remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or satisfy such
liability within a reasonable time.
8.15. Intentionally Omitted.
8.16. Further Assurances. (a) At the Borrower's reasonable cost and
expense, upon request of the Administrative Agent or the Lenders, duly execute
and deliver or cause to be duly executed and delivered, to the Administrative
Agent such further instruments, documents, certificates and agreements, and do
and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent or the Lenders
to carry out more effectively the provisions and purposes of this Agreement and
the other Loan Documents.
(b) Cause each wholly-owned Material Domestic Subsidiary that is a
Guarantor to remain a wholly-owned Material Domestic Subsidiary, except as a
result of a transaction permitted hereunder.
(c) Cause the Borrower and the Guarantors, on a consolidated basis, to own
assets in excess of fifty percent (50%) of Consolidated Net Tangible Assets;
provided that, if at any time the Borrower and the Guarantors do not own assets
in excess of fifty percent (50%) of Consolidated Net Tangible Assets, then the
Borrower shall promptly give notice to the Administrative Agent, which notice
shall designate a Subsidiary or Subsidiaries of the Borrower that, together with
the Borrower and the Guarantors on a consolidated basis, own assets in excess of
fifty percent (50%) of Consolidated Net Tangible Assets, and which such
Subsidiary or Subsidiaries shall become a Guarantor or Guarantors, as the case
may be, pursuant to Section 8.19.
8.17. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty (30)
days thereof, give notice to the Administrative Agent of (i) each funding
waiver request filed with respect to any Pension Plan and all
communications received or sent by the Borrower or any ERISA Affiliate with
respect to such request and (ii) the failure of the Borrower or any ERISA
Affiliate to make a required installment or payment under Section 302 of
ERISA or Section 412 of the Code (in the case of Employee Benefit Plans
regulated by the Code or ERISA) or under any Foreign Benefit Law (in the
case of Employee Benefit Plans regulated by any Foreign Benefit Law) by the
due date;
(b) Promptly and in any event within fifteen (15) days of becoming
aware of the occurrence or forthcoming occurrence of any (i) Termination
Event or (ii) nonexempt "prohibited transaction," as such term is defined
in Section 406 of ERISA or Section 4975 of the Code, in connection with any
Employee Benefit Plan or any trust created thereunder, deliver to the
Administrative Agent a notice specifying the nature thereof, what action
the Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or threatened
by the Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto; and
(c) With reasonable promptness but in any event within fifteen (15)
days for purposes of clauses (i), (ii) and (iii), deliver to the
Administrative Agent copies of (i) any unfavorable determination letter
from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code, (ii) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan, (iii) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by
the Borrower or any ERISA Affiliate with the Internal Revenue Service with
respect to each Employee Benefit Plan and (iv) all notices received by the
Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA. The Borrower will notify the Administrative Agent in
writing within five (5) Business Days of the Borrower or any ERISA
Affiliate obtaining knowledge or reason to know that the Borrower or any
ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the meaning
of Section 4041(c) of ERISA.
8.18. Accounting Policies and Financial Reporting Practices. Promptly
notify the Administrative Agent of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary.
8.19. New Subsidiaries; New Guarantors. Promptly, but no later than
forty-five (45) days after (a) the acquisition or creation of any Subsidiary
which would have been a Material Domestic Subsidiary if included in the
Borrower's consolidated financial statements (adjusted to include pro forma
Consolidated Assets and Consolidated Total Profits Before Taxes of such acquired
entity) for the Fiscal Quarter then most recently ended, or (b) any previously
existing Person becomes a Material Domestic Subsidiary as reflected in the then
most recent financial statements delivered pursuant to Section 8.1 hereof, or
(c) any Subsidiary becomes a Guarantor pursuant to Section 8.16(c), cause to be
delivered to the Administrative Agent for the benefit of the Lenders each of the
following:
(i) a Facility Guaranty Joinder Agreement or such other document
as the Administrative Agent shall deem appropriate for such purpose
executed by such Subsidiary with appropriate insertions of identifying
information and such other changes to which the Administrative Agent
may consent in its discretion;
(ii) an opinion of counsel to the Subsidiary dated as of the date
of delivery of the Facility Guaranty provided for in this Section 8.19
and addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent (which
opinion may include assumptions and qualifications of similar effect
to those contained in the opinions of counsel delivered pursuant to
Section 6.1(a)), to the effect that:
(A) such Subsidiary is duly organized, validly existing and
in good standing in the jurisdiction of its formation, has the
requisite power and authority to own its properties and conduct
its business as then owned and then conducted and proposed to be
conducted and to execute, deliver and perform the Facility
Guaranty described in this Section 8.19 to which such Subsidiary
is a signatory, and is duly qualified to transact business and is
in good standing as a foreign corporation or partnership in each
other jurisdiction in which the character of the properties owned
or leased, or the business carried on by it, requires such
qualification and the failure to be so qualified would reasonably
be likely to result in a Material Adverse Effect; and
(B) the execution, delivery and performance of the Facility
Guaranty described in this Section 8.19 to which such Subsidiary
is a signatory have been duly authorized by all requisite
corporate or partnership action (including any required
shareholder or partner approval), such agreement has been duly
executed and delivered and constitutes the valid and binding
agreement of such Subsidiary, enforceable against such Subsidiary
in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or
other similar law affecting the enforceability of creditors'
rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity);
and
(iii) current copies of the Organizational Documents and
Operating Documents of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders) of such Subsidiary authorizing
the actions and the execution and delivery of documents described in
this Section 8.19.
8.20. Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.2 hereof.
8.21. GTECH Reinsurance. The Borrower shall cause GTECH Reinsurance to do
with respect to itself, its business and its assets each of the things required
of the Borrower and the other Credit Parties in Sections 8.2 through 8.4 and
Sections 8.6 through 8.8 hereof.
8.22. Debt Rating. Promptly notify the Administrative Agent of any
announcement by Moody's or S&P of any change in the Debt Rating.
ARTICLE IX
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, nor will it permit any Material
Subsidiary to, nor will the Parent, where applicable:
9.1. Financial Covenants.
(a) Consolidated Total Debt Ratio. Permit the Consolidated Total Debt Ratio
as of the end of any Four-Quarter Period to be greater than 2.75 to 1.00.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any Four-Quarter Period to be less than 4.00 to
1.00.
9.2. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, including without
limitation any capital stock of the Borrower or any of its Subsidiaries, other
than
(a) Liens created in favor of the Administrative Agent and the
Lenders, or otherwise existing as of the date hereof and as set forth in
Schedule 7.7;
(b) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted, and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law or created in the
ordinary course of business and for amounts not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(d) Liens incurred or deposits made in the ordinary course of business
(including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other
types of social security benefits or to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations or arising as a result
of progress payments under government contracts;
(e) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or any
Material Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof to
the Borrower or any Material Subsidiary;
(f) Liens on assets of the Borrower or any of its Subsidiaries and on
the capital stock of any of its Subsidiaries, provided that the aggregate
fair market value (as reasonably determined by the Borrower) of all assets
and such capital stock subject to such pledges shall not exceed
$75,000,000;
(g) Liens arising in connection with, and deposits made to secure, the
payment and performance of bids, trade contracts (other than for borrowed
money), contracts with respect to the Core Business, leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, and rights of usufruct and similar rights to
continued use and possession of lottery equipment or other property in
favor of lottery authorities, in each case incurred in the ordinary course
of business;
(h) Liens securing Indebtedness of the Borrower and its Subsidiaries
incurred to finance the acquisition of fixed or capital assets, including
any items of equipment acquired after the date hereof, and refinancings
thereof, provided that (i) such Liens shall attach concurrently with or
within thirty (30) days of the acquisition of such fixed or capital assets
or items of equipment, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (iii) the
amount of Indebtedness secured thereby is not increased and (iv) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed one hundred percent (100%) of the original purchase price of such
property at the time it was acquired;
(i) Liens arising as a result of the use of commercial letters of
credit to finance the purchase price of goods in the ordinary course of
business in transactions not otherwise prohibited hereunder in favor of the
bank issuing such commercial letter of credit and attaching only on such
goods so financed; and
(j) Liens arising out of judgments or awards in respect of which the
Parent, the Borrower or any of its Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review and in respect of which it
shall have secured a subsisting stay of execution pending such appeal or
proceedings for review, provided that it shall have set aside on its books
adequate reserves, to the extent required by GAAP applied on a Consistent
Basis, with respect to such judgment or award.
9.3. Guaranties. Incur, create, or assume any guaranties of
non-consolidated Indebtedness in an aggregate principal amount in excess of five
percent (5%) of Consolidated Assets.
9.4. Disposition of Assets. The Borrower will not, and will not permit any
Guarantor to, directly or indirectly, sell, lease, transfer or otherwise dispose
of (collectively a "Disposition") any of its properties or assets unless the
assets that were the subject of a Disposition during the twelve (12) calendar
months immediately preceding the date of such proposed Disposition (the
"Disposition Date") do not exceed fifteen percent (15%) of Consolidated Assets
as at the end of the Fiscal Quarter ended immediately prior to the Disposition
Date. Any Disposition of shares of stock of any Subsidiary shall, for purposes
of this Section, be valued at an amount that bears the same proportion to the
book value of the total assets of such Subsidiary as the number of such shares
bears to the total number of issued and outstanding shares of stock of such
Subsidiary. Notwithstanding the foregoing, the following Dispositions shall not
be taken into account under this Section 9.4:
(a) any Disposition of inventory, equipment, fixtures, supplies or
materials made in the ordinary course of business at fair value;
(b) any Disposition to a Credit Party;
(c) any Disposition the net proceeds of which are applied within 180
days of the related Disposition Date to (x) the repayment of Consolidated
Total Indebtedness (and any associated premium) of the Borrower or such
Guarantor or (y) the acquisition of assets (other than current assets) to
be used in the ordinary course of business of the Borrower or such
Guarantor or to be used in the Core Business; and
(d) any voluntary termination by the Borrower of any Swap Agreement.
9.5. Investments; Acquisitions. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets of, or make investments in or permit to exist
any interest whatsoever in, any other Person or permit to exist any loans or
advances to, or Capital Expenditures with respect to, any Person, except that
the Parent, the Borrower and its Subsidiaries may:
(a) invest or maintain investments in Eligible Securities;
(b) invest or maintain investments in other securities for which the
aggregate purchase price or initial investment for all such securities does
not exceed $10,000,000;
(c) maintain investments existing as of the date hereof and either
disclosed on the financial statements of the Parent, the Borrower and its
Subsidiaries referred to in Section 7.6 hereof or individually and in the
aggregate not required to be disclosed in such financial statements or the
notes thereto;
(d) create and hold accounts receivable arising and trade credit
granted in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with accounts of
financially troubled Persons to the extent reasonably necessary in order to
prevent or limit loss;
(e) purchase and maintain key man life insurance with respect to its
executive officers;
(f) make and maintain investments in, advances to or Capital
Expenditures with respect to any Person other than those described in
clauses (a), (b), (c), (d), (e), (g), (h), (i) and (j) hereof in an
aggregate Investment Commitment at any time not to exceed $150,000,000;
provided that no single or series of related investments, advances or
Capital Expenditures permitted under this Section 9.5(f) shall exceed at
any time an Investment Commitment of $75,000,000;
(g) make and maintain investments in, advances to or Capital
Expenditures with respect to the Borrower or any Subsidiary engaged in the
Core Business and loans or advances by the Passive Investment Company to
the Borrower or any Guarantor in connection with the Core Business;
(h) make and hold loans and advances to officers, directors and
employees of the Borrower or its Subsidiaries for travel, entertainment and
relocation expenses and other business purposes, all in the ordinary course
of business;
(i) make and maintain investments of the Borrower under any agreement
creating Rate Hedging Obligations;
(j) make and maintain investments representing stock or obligations
issued to the Parent, the Borrower or any of its Subsidiaries in settlement
of claims against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of the Parent, the
Borrower or such Subsidiary; and
(k) make and maintain investments representing stock or obligations
issued by Subsidiaries to the Borrower or any other Credit Party.
9.6. Fundamental Changes. (a) Consolidate with or merge into, or, except as
permitted by Section 9.4, dispose of (whether in one transaction or a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of, any other Person; provided, however, any
Subsidiary may sell all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary, provided
that if the seller in such a transaction is a Guarantor, then the purchaser must
be a Credit Party; or (b) permit any other Person to consolidate with or merge
into it, provided, however, so long as no Default or Event of Default exists at
the time of or would result therefrom (i) any Subsidiary may merge or transfer
all or substantially all of its assets into or consolidate with the Borrower or
any wholly-owned Subsidiary; provided that, notwithstanding the foregoing, no
Material Domestic Subsidiary may consolidate with or merge into any Subsidiary
unless such Material Domestic Subsidiary is the survivor of such consolidation
or merger or the Subsidiary is also a Material Domestic Subsidiary and no
Default or Event of Default shall exist after giving effect to such merger or
consolidation; and (ii) any Person may merge with the Borrower if the Borrower
shall be the survivor thereof.
9.7. Dividends, Redemptions and Other Payments. If (a) any Default or Event
of Default shall exist under Sections 9.1(a) or (b) hereof or a Default or Event
of Default under any such section would be created by the declaration or payment
of cash dividends or any other payment or distribution of cash on account of its
capital stock or the purchase, redemption or other retirement of its capital
stock, or (b) an Event of Default has occurred and is continuing, declare or pay
any cash dividends or make any other payment or distribution of cash on any
shares of stock of any class of the Borrower, now or hereafter outstanding, or
purchase, redeem or otherwise retire any such shares in consideration of cash or
apply or set apart any of their assets therefor or make any other distribution
(by redemption of capital or otherwise) in respect of any such shares in
consideration of cash, or agree to do any of the foregoing.
9.8. Transactions with Affiliates. Enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate (other than a Guarantor), except (a) that such Persons may render
services to the Borrower or its Subsidiaries for compensation at the same rates
generally paid by Persons engaged in the same or similar businesses for the same
or similar services and (b) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's (or any Subsidiary's) business
consistent with past practice of the Borrower and its Subsidiaries and upon fair
and reasonable terms no less favorable to the Borrower (or any Subsidiary) than
would be obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
9.9. Benefit Plans. With respect to all Employee Benefit Plans maintained
by the Borrower or any ERISA Affiliate:
(a) terminate any of such Employee Benefit Plans so as to incur any
liability to the PBGC established pursuant to ERISA or to any other Person
exercising similar duties and functions under any Foreign Benefit Law where
such termination would be reasonably likely to have or would have a
Material Adverse Effect;
(b) engage in any non-exempt prohibited transaction involving any of
such Employee Benefit Plans or any trust created thereunder which would
subject the Borrower or an ERISA Affiliate to a tax or penalty or other
liability on prohibited transactions imposed under Code Section 4975 or
ERISA or under any Foreign Benefit Law;
(c) fail to pay to any such Employee Benefit Plan any contribution
which it is obligated to pay under the terms of such plan;
(d) allow or suffer to exist any accumulated funding deficiency,
whether or not waived, with respect to any such Employee Benefit Plan;
(e) allow or suffer to exist any occurrence of a reportable event or
any other event or condition, which presents a material risk of termination
by the PBGC, or to any other Person exercising similar duties and functions
under any Foreign Benefit Law, of any such Employee Benefit Plan that is a
Single Employer Plan, which termination could result in any liability to
the PBGC or under any Foreign Benefit Law; or
(f) incur any withdrawal liability with respect to any Multiemployer
Plan which would be reasonably likely to have or would have a Material
Adverse Effect.
9.10. Fiscal Year. Change its Fiscal Year without the consent of the
Required Lenders, which consent shall not be unreasonably withheld or delayed;
provided, however, that each of the Lenders agrees that if an amendment to this
Agreement is required solely to make adjustments to the financial covenants in
Section 9.1 hereof as a result of such change in Fiscal Year, no fees shall be
charged to the Borrower for such amendment.
9.11. Dissolution, Etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with (a) the merger or
consolidation of Material Subsidiaries into each other or into the Borrower as
permitted pursuant to Section 9.6 hereof and (b) the declaration of bankruptcy,
liquidation and dissolution of Subsidiaries which are not Material Subsidiaries.
9.12. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
9.13. GTECH Reinsurance. Permit GTECH Reinsurance to have tangible assets
in excess of $25,000,000.
9.14. Total Subsidiary Indebtedness. Permit at any time the aggregate
amount of Indebtedness of the Borrower's Subsidiaries to be greater than the
lesser of (a) twelve and one-half percent (12.5%) of Consolidated Assets as of
the last day of the Four-Quarter Period ending on (or most recently prior to)
the date of calculation thereof and (b) thirty-three percent (33%) of
Consolidated EBITDA for the Four-Quarter Period ending on (or most recently
prior to) the date of calculation thereof.
9.15. Synthetic Lease Obligations. Create, incur or permit to exist at any
time Synthetic Lease Obligations in an aggregate amount in excess of five
percent (5%) of Consolidated Assets.
9.16. Limitations on Sales and Leasebacks. Enter into any Sale and
Leaseback Transaction as lessee unless:
(a) such Sale and Leaseback Transaction is (i) between any Material
Subsidiary and the Borrower or the Parent, (ii) between any Material
Subsidiary and any wholly-owned Material Subsidiary or (iii) between the
Borrower or the Parent and any wholly-owned Material Subsidiary;
(b) the proceeds received by the Borrower or such Material Subsidiary
from such Sale and Leaseback Transaction as lessee are applied within one
hundred eighty (180) days of the date of such transaction to (i) the
prepayment of Consolidated Total Indebtedness (and any associated premium)
of the Borrower or such Material Subsidiary or (ii) the acquisition of
assets (other than current assets) to be used in the ordinary course of
business of the Borrower or such Material Subsidiary, as the case may be;
and
(c) at the time of entering into such Sale and Leaseback Transaction
and immediately after giving effect thereto, the aggregate of all Capital
Leases related to Sale and Leaseback Transactions of the Borrower and its
Material Subsidiaries shall not exceed five percent (5%) of Consolidated
Assets.
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. If any one or more of the following events (herein
called "Events of Default") shall occur for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any Governmental
Authority), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan, Unreimbursed Amount or other Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III or Article IV, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan, Unreimbursed Amount or other Obligation and
such amount remains unpaid for five (5) or more days or of any fees or
other amounts payable to the Lenders, the Administrative Agent or the L/C
Issuer under the Loan Documents on the date on which the same shall be due
and payable and such amounts remain unpaid for thirty (30) or more days; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 8.3(a), 8.11, 8.12,or 8.20 or Sections 9.1,
9.2, 9.3, 9.4, 9.5, 9.6, 9.7, 9.11, 9.12 or 9.14; or
(d) (i) if a default shall be made in the performance or observance
of, or shall occur under any covenant, agreement or provision contained in
this Agreement, any Facility Guaranty, the Notes or any other Loan
Documents (other than as described in clauses (a), (b) or (c) above) and
such default shall continue after the earlier of (A) thirty (30) days after
the receipt of notice of such default by the Authorized Representative from
the Administrative Agent or any Lender and (B) forty-five (45) days after
an Authorized Representative becomes aware of such default, or if such
default is of a type that cannot be cured within thirty (30) days or
forty-five (45) days, as applicable (but reasonably can be cured within
ninety (90) days), and the Parent, the Borrower or any of its Subsidiaries
is diligently and in good faith attempting to cure such default, such
default shall continue unremedied for a period of ninety (90) or more days
after such notice or awareness, or (ii) if an Event of Default shall occur
under any of the other Loan Documents or in any instrument or document
evidencing or creating any obligation, guaranty, or Lien in favor of the
Administrative Agent or the Lenders or delivered to the Administrative
Agent or the Lenders in connection with or pursuant to this Agreement or
any of the Obligations, or (iii) if any material provision of any Loan
Document ceases to be in full force and effect (other than by reason of
termination by the Administrative Agent), or (iv) if without the written
consent of the Administrative Agent, any material provision of this
Agreement or any other Loan Document shall be disaffirmed, or the validity,
binding nature or enforceability thereof shall be contested by the
Borrower, the Parent or any Guarantor, or this Agreement or any other Loan
Document shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than in accordance with its
terms in the absence of default or by reason of termination by the
Administrative Agent or any Lender); or
(e) if a default (whether as principal or as guarantor or other
surety) shall occur, which is not waived and as to which any applicable
grace period has expired, (i) in the payment of any principal, interest,
premium or other amounts with respect to any Indebtedness (other than the
Obligations) of the Borrower or of any Subsidiary in an amount not less
than $30,000,000 in the aggregate outstanding, or (ii) in the performance,
observance or fulfillment of any term or covenant contained in any
agreement or instrument under or pursuant to which any such Indebtedness
may have been issued, created, assumed, guaranteed or secured by the
Borrower or any Subsidiary, and if such default shall permit the holder of
any such Indebtedness to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report or
statement at any time furnished to the Administrative Agent or any Lender
by or on behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given or made or deemed given or
made; or
(g) if the Borrower, the Parent or any Material Subsidiary shall (i)
fail to pay, admit in writing its inability to pay or be unable to pay its
debts generally as they become due, (ii) file, or consent by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any insolvency, reorganization,
bankruptcy, receivership or similar law, domestic or foreign; make an
assignment for the benefit of its creditors; (iii) commence a proceeding
for the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; (iv) file a
petition or answer seeking reorganization or arrangement or similar relief
under the Federal bankruptcy laws or any other applicable Federal, state or
foreign law or statute; (v) be adjudicated as insolvent or to be liquidated
or (vi) take any corporate action for the purpose of any of the foregoing;
or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree ordering the dissolution, winding-up or liquidation of,
or appointing a custodian, receiver, trustee, liquidator or conservator of,
the Borrower, the Parent or any Material Subsidiary or of the whole or any
substantial part of its properties and such order, judgment or decree
continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower, the Parent or any Material
Subsidiary seeking reorganization or arrangement or similar relief under
the Federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state or foreign country, province or other
political subdivision, which petition is not dismissed within sixty (60)
days; or if, under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or control
of the Borrower, the Parent or any Material Subsidiary or of the whole or
any substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower, the
Parent or any Material Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the Federal bankruptcy
laws or any other applicable law or statute of the United States of America
or any state or foreign country, province or other political subdivision
which proceeding or petition remains undismissed for a period of sixty (60)
days; or if the Borrower, the Parent or any Material Subsidiary takes any
action to indicate its consent to or approval of any such proceeding or
petition; or
(i) if (i) a final judgment or order for the payment of money in an
aggregate amount exceeding $30,000,000 (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) is rendered against the Borrower, the Parent or any Subsidiary;
or (ii) any one or more non-monetary final judgments, sanctions or orders
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect is rendered against the Borrower, the
Parent or any Subsidiary; or (iii) any Governmental Authority assesses or
levies any final fines, penalties or monetary sanctions in excess of
$30,000,000 against the Borrower, the Parent or any Subsidiary (exclusive,
however, of liquidated damage and similar claims arising out of contracts
entered into with such Governmental Authorities in the ordinary course of
business) and, in each of clauses (i) through (iii), (A) enforcement
proceedings are commenced by any creditor, Governmental Authority or (in
the case of non-monetary judgments, sanctions or orders) any other Person
entitled to relief upon such judgment, sanction or order, or (B) there is a
period of sixty (60) consecutive days during which a stay of enforcement of
such judgment, sanctions, order or penalties, by reason of a pending appeal
or otherwise, is not in effect; or (iv) there is any attachment or
injunction against any of the Borrower's, the Parent's or any Subsidiary's
properties for any amount in excess of $30,000,000 and such attachment or
injunction remains unsatisfied, unstayed, undischarged, unbonded or
undismissed for a period of sixty (60) days; or
(j) if the Parent, the Borrower or any Subsidiary shall cease all or
any part of its operations and such cessation is reasonably likely to have
a Material Adverse Effect; or
(k) if (i) the Borrower or any ERISA Affiliate shall engage in any
prohibited transaction (as described in Section 9.9(b) hereof), which is
not subject to a statutory or administrative exemption, involving any
Employee Benefit Plan of the Borrower or any ERISA Affiliate, (ii) any
accumulated funding deficiency (as referred to in Section 9.9(d) hereof),
whether or not waived, shall exist with respect to any Single Employer
Plan, (iii) a reportable event (as referred to in Section 9.9(e) hereof)
(other than a reportable event for which the statutory notice requirement
to the PBGC has been waived by regulation) shall occur with respect to, or
proceeding shall commence to have a trustee appointed, or a trustee shall
be appointed to administer or to terminate, any Single Employer Plan, which
reportable event or institution or proceedings is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of
such Single Employer Plan for purposes of Title IV of ERISA, and in the
case of such a reportable event, the continuance of such reportable event
shall be unremedied for sixty (60) days after notice of such reportable
event pursuant to Section 4043(a), (c) or (d) of ERISA is given, as the
case may be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, and such termination results in a material liability of
the Borrower or any ERISA Affiliate to such Single Employer Plan or the
PBGC, (v) the Borrower or any Subsidiary shall withdraw from a
Multiemployer Plan for purposes of Title IV of ERISA, and, as a result of
any such withdrawal, the Borrower or any ERISA Affiliate shall incur
withdrawal liability to such Multiemployer Plan, or (vi) any other material
event or condition shall occur or exist; and in each case in clauses (i)
through (vi) of this Section 10.1(k), such event or condition, together
with all other such events or conditions, if any, could reasonably be
expected to subject the Borrower or any ERISA Affiliate to any material
tax, penalty or other liabilities; or
(l) if the Borrower or any Subsidiary shall breach any of the material
terms or conditions of any Swap Agreement and such breach shall continue
beyond any grace period, if any, relating thereto pursuant to its terms; or
(m) if the Parent shall (i) cease to exist other than due to a merger
into the Borrower, (ii) conduct any business other than in connection with
its ownership of the common stock of the Borrower and GTECH Reinsurance, or
(iii) make any investment, acquisition or expenditure other than
expenditures for (A) regularly scheduled payments of principal and interest
on Indebtedness for Money Borrowed and expenses related thereto, (B) daily
operating expenses of its business and (C) Captive Insurance Payments;
provided, however, that the Parent may conduct acquisitions of entities in
which shares of its capital stock are all or a portion of the consideration
paid and upon the consummation of which the acquired entity is
substantially simultaneously merged or consolidated into the Borrower or a
Subsidiary in accordance with the terms of this Agreement; or
(n) if GTECH Reinsurance shall conduct any business other than the
Captive Insurance Program;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived or cured,
(A) either or both of the following actions may be taken:
the Administrative Agent may with the consent of the Required
Lenders, and at the direction of, the Required Lenders shall, (i)
declare the Revolving Credit Commitment, the Letter of Credit
Commitment and any obligation of the Lenders to make Revolving
Loans, and of the Swing Line Lender to make Swing Line Loans and
the L/C Issuer to issue Letters of Credit terminated, whereupon
the obligation of each Lender to make further Revolving Loans, of
the Swing Line Lender to make further Swing Line Loans, and of
the L/C Issuer to issue additional Letters of Credit, hereunder
shall terminate immediately, and (ii) declare by notice to the
Borrower any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and
all other obligations of the Borrower to the Administrative Agent
and the Lenders, shall forthwith become immediately due and
payable without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly waived,
anything contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided, however,
that notwithstanding the above, if there shall occur an Event of
Default under clause (g) or (h) above, then the Revolving Credit
Commitment and the Letter of Credit Commitment and the obligation
of the Lenders to make Revolving Loans, of the Swing Line Lender
to make Swing Line Loans, and of the L/C Issuer to issue Letters
of Credit hereunder shall automatically terminate and any and all
of the Obligations shall be immediately due and payable without
the necessity of any action by the Administrative Agent or the
Required Lenders or notice to the Administrative Agent or the
Lenders;
(B) The Borrower shall, upon demand of the Administrative
Agent or the Required Lenders, or immediately without notice,
demand or any other action if an Event of Default under clause
(g) or (h) above has occurred, Cash Collateralize the L/C
Obligations in an amount equal to the amount of any L/C
Obligations then outstanding, as collateral security for the
repayment of any future drawings or payments under such Letters
of Credit and the Borrower shall forthwith deposit and pay such
amounts, and such amounts shall be held by the Administrative
Agent pursuant to the terms of a cash collateral agreement; and
(C) the Administrative Agent and each of the Lenders shall
have all of the rights and remedies available under the Loan
Documents or under any applicable law.
10.2. Agent to Act. In case any one or more Events of Default shall occur
and not have been waived, subject to the provisions of Article XI, the
Administrative Agent with the consent of the Required Lenders, may, and at the
direction of the Required Lenders shall, proceed to protect and enforce the
rights or remedies of the Lenders and the Administrative Agent hereunder either
by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any Lender
or the Administrative Agent or any failure or delay on the part of any Lender or
the Administrative Agent in exercising any rights or remedies under any Loan
Document or otherwise available to it shall operate as a waiver of any rights or
remedies and no single or partial exercise of any rights or remedies shall
operate as a waiver or preclude the exercise of any other rights or remedies
hereunder or of the same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and not
been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Administrative Agent hereunder,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder, shall be applied by the
Administrative Agent in the following order:
(a) First, amounts due to the Administrative Agent, the Lenders and
the L/C Issuer pursuant to Sections 3.1(f), 4.6(a), 4.6(b), 4.6(c), 8.15
and 12.4;
(b) Second, amounts due to the Administrative Agent and the L/C Issuer
pursuant to Section 4.6(d);
(c) Third, payments of interest on Loans, Swing Line Loans and
Unreimbursed Amounts, to be applied for the ratable benefit of the Lenders
(with amounts payable in respect of Swing Line Outstandings being included
in such calculation and paid to the Swing Line Lender); (d) Fourth,
payments of principal of Loans, Swing Line Loans. Unreimbursed Amounts and
amounts due to any of the Lenders or their Affiliates in respect of
Obligations consisting of liabilities under any Swap Agreement with any of
the Lenders or their Affiliates, to be applied for the ratable benefit of
the Lenders according to the amounts owed (with amounts payable in respect
of Swing Line Outstandings being included in such calculation and paid to
the Swing Line Lender);
(e) Fifth, payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to Section 10.1(B);
(f) Sixth, payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders or
other Persons entitled thereto; and
(g) Last, any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable law.
ARTICLE XI
Administrative Agent
11.1. Appointment and Authority. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents 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 or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Credit Party shall have rights as a third party beneficiary of any
of such provisions.
11.2. Rights as a Lender. The Person 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 the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
11.3. Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
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 (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 12.1 and 10.1) or (ii) 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 notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
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 or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article VI or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
11.4. Reliance by 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 (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated 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 have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. 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.
11.5. Delegation of Duties. The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub agents appointed by the
Administrative Agent. The Administrative Agent and any such sub agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article 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.
11.6. Resignation of Administrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The 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 retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 12.4 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
11.7. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties 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 and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties 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 other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
11.8. No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Joint Lead Arrangers, the Co-Syndication Agents or
the Sole Book Manager listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
11.9. Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the L/C Issuer and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the
L/C Issuer and the Administrative Agent under Sections 3.1(i) and (j), 2.4,
4.3 and 12.4) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.4,
4.3 and 12.4.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
11.10. Guaranty Matters. The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release any
Guarantor from its obligations under the Guaranty pursuant to this Section
11.10.
ARTICLE XII
Miscellaneous
12.1. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document (excluding Swap Agreements), and no consent
to any departure by the Borrower or any other Credit Party therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Credit Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 6.1(a) without the
written consent of each Lender;
(b) extend or increase the Revolving Credit Commitment of any Lender
(or reinstate any Revolving Commitment terminated pursuant to Section 10.1)
without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment of principal, interest,
fees or other amounts due to the Lenders (or any of them) or any scheduled
or mandatory reduction of the Total Revolving Credit Commitment hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (v) of the second
proviso to this Section 12.1) any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default
Rate" or to waive any obligation of the Borrower to pay interest or Letter
of Credit Fees at the Default Rate;
(e) change Section 4.9 or Section 10.5 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or
(g) except as provided in Section 11.10, release all or substantially
all of the Guarantors from the Guaranty without the written consent of each
Lender;
(h) and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition to the
Lenders required above, affect the rights or duties of the L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the
Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and (iv) Section
12.6(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being
funded by an SPC at the time of such amendment, waiver or other
modification; and (v) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver
or consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.
12.2. Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C Issuer
or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person
in Schedule 12.2; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative Agent,
the L/C Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the
Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Borrowing Notices and Swing Line
Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
12.3. No Waiver; Cumulative Remedies. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
12.4. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out of
pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out of pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out of
pocket expenses incurred by the Administrative Agent, any Lender or the L/C
Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, 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
the fees, charges and disbursements of any counsel for any Indemnitee), incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Credit Party arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Credit Party, 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 (x) 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 (y) result from a claim brought by the
Borrower or any other Credit Party against an Indemnitee for breach in bad faith
of such Indemnitee's obligations hereunder or under any other Loan Document, if
the Borrower or such Credit Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Commitment 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 (or any such sub-agent) or the L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 4.5.
(d) Waiver of Consequential Damages, Etc. To the fullest 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, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable not later
than ten (10) Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation
of the Administrative Agent and the L/C Issuer, the replacement of any Lender,
and the Facility Termination Date.
12.5. Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender,
or the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the Facility
Termination Date.
12.6. Successors and Assigns.
(a) Successors and Assigns Generally. 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 neither the
Borrower nor any other Credit Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section, or (iv) to an SPC
in accordance with the provisions of subsection (h) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
and the Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that:
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Revolving Credit Commitment and the
Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to
a Lender, the aggregate amount of the Revolving Credit Commitment
(which for this purpose includes Loans outstanding thereunder) or, if
the Revolving Credit Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld
or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all of the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Revolving Credit Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of Swing Line Loans;
(iii) any assignment of a Revolving Credit Commitment must be
approved by the Administrative Agent, the L/C Issuer and the Swing
Line Lender unless the Person that is the proposed assignee is itself
a Lender (whether or not the proposed assignee would otherwise qualify
as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 5.1, 5.5, 5.6, and 12.4 with respect
to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 12.1 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 5.1, 5.5 and 5.6 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 12.8 as though it were a Lender, provided such
Participant agrees to be subject to Section 4.9 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 5.1 or 5.6 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 5.6 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 5.6(d) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic Execution of Assignments. The words "execution", "signed",
"signature", and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to a
special purpose funding vehicle identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Revolving Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Revolving Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Revolving Loan, the Granting
Lender shall be obligated to make such Revolving Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section 4.5(b)(ii). Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 5.1), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Revolving Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Revolving Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or any portion of its right to receive
payment with respect to any Revolving Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Revolving Loans to any rating agency, commercial paper dealer or
provider of any surety or Guarantee or credit or liquidity enhancement to such
SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon thirty (30) days' notice to the Borrower
and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days' notice
to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer,
it shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 3.1(c)). If
Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Revolving Loans or
fund risk participations in outstanding Swing Line Loans pursuant to Section
2.4.
12.7. Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
12.8. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
12.9. Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
12.10. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents 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. Except
as provided in Section 6.1, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
12.11. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any credit extension, and shall continue in full
force and effect until the Facility Termination Date.
12.12. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.13. Replacement of Lenders. If any Lender requests compensation under
Section 5.1, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 5.6, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 12.6), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 12.6(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 5.5) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 5.1 or payments required to be made pursuant to
Section 5.6, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
12.14. Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF SUCH STATE,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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 COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT 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 APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.2. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
12.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
12.16. USA PATRIOT Act Notice. Each Lender that is subject to the Patriot
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Patriot Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Patriot Act.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
BORROWER:
GTECH CORPORATION
By: /s/ William M. Pieri
----------------------------------------
Name: William M. Pieri
Title: Treasurer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer
By: /s/ John Walkiewicz
------------------------------------------
Name: John Walkiewicz
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A., as Lender
By: /s/ John Walkiewicz
------------------------------------------
Name: John Walkiewicz
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ James D.A. Gibson
------------------------------------------
Name: James D.A. Gibson
Title: Managing Director
By: /s/ Philip Schubert
------------------------------------------
Name: Philip Schubert
Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Vijaya Kulkarni
------------------------------------------
Name: Vijaya Kulkarni
Title: AVP
THE BANK OF NOVA SCOTIA
By: /s/ Todd S. Meller
------------------------------------------
Name: Todd S. Meller
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Kevin E. Burke
------------------------------------------
Name: Kevin E. Burke
Title: Senior Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/ Robert S. Taylor
------------------------------------------
Name: Robert S. Taylor
Title: Senior Vice President
By: /s/ Andrew P. Lusk
------------------------------------------
Name: Andrew P. Lusk
Title: Vice President
CITIZENS BANK OF RHODE ISLAND
By: /s/ Mark J. Meiklejohn
------------------------------------------
Name: Mark J. Meiklejohn
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ Brooke Balcom
------------------------------------------
Name: Brooke Balcom
Title: Relationship Manager
SUNTRUST BANK
By: /s/ Nora G. Brown
------------------------------------------
Name: Nora G. Brown
Title: Vice President