Published CUSIP Number:
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CREDIT AGREEMENT
Dated as of June 28, 2005
among
DST SYSTEMS, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, L/C Issuer and Swing Line Lender,
and
The Other Lenders Party Hereto
and
U.S. BANK NATIONAL ASSOCIATION,
WELLS FARGO BANK, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS, INC.,
as Joint Lead Arrangers and Joint Book Managers
and
CITIBANK, N.A.,
as Syndication Agent
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................1
1.01 DEFINED TERMS...................................................1
1.02 OTHER INTERPRETIVE PROVISIONS..................................26
1.03 ACCOUNTING TERMS...............................................27
1.04 ROUNDING.......................................................28
1.05 REFERENCES TO AGREEMENTS AND LAWS..............................28
1.06 TIMES OF DAY...................................................28
1.07 LETTER OF CREDIT AMOUNTS.......................................28
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.............................28
2.01 REVOLVING LOANS................................................28
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS...29
2.03 LETTERS OF CREDIT..............................................30
2.04 SWING LINE LOANS...............................................38
2.05 PREPAYMENTS OF LOANS...........................................41
2.06 TERMINATION OR REDUCTION OF AGGREGATE REVOLVING COMMITMENTS....43
2.07 REPAYMENT OF LOANS.............................................43
2.08 INTEREST.......................................................43
2.09 FEES...........................................................44
2.10 COMPUTATION OF INTEREST AND FEES...............................44
2.11 EVIDENCE OF DEBT...............................................45
2.12 PAYMENTS GENERALLY.............................................45
2.13 SHARING OF PAYMENTS............................................47
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...........................48
3.01 TAXES..........................................................48
3.02 ILLEGALITY.....................................................49
3.03 INABILITY TO DETERMINE RATES...................................49
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON EURODOLLAR RATE LOANS.......................................49
3.05 FUNDING LOSSES.................................................50
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION............51
3.07 SURVIVAL.......................................................51
ARTICLE IV...................................................................51
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS..........................51
5.01 CONDITIONS OF CLOSING DATE AND INITIAL CREDIT EXTENSION........51
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS............................54
ARTICLE VI REPRESENTATIONS AND WARRANTIES....................................54
6.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.......55
6.02 AUTHORIZATION; NO CONTRAVENTION................................55
6.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.....................55
6.04 BINDING EFFECT.................................................55
6.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT...............56
6.06 LITIGATION.....................................................56
6.07 NO DEFAULT.....................................................57
6.08 OWNERSHIP OF PROPERTY; LIENS...................................57
6.09 ENVIRONMENTAL COMPLIANCE.......................................57
6.10 INSURANCE......................................................58
6.11 TAXES..........................................................58
6.12 ERISA COMPLIANCE...............................................58
6.13 CAPITAL STRUCTURE/SUBSIDIARIES.................................59
6.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT............................................59
6.15 DISCLOSURE.....................................................60
6.16 COMPLIANCE WITH LAWS...........................................60
6.17 INTELLECTUAL PROPERTY..........................................60
6.18 SOLVENCY.......................................................61
6.19 INVESTMENTS....................................................61
6.20 BROKERS' FEES..................................................61
6.21 LABOR MATTERS..................................................61
6.22 NATURE OF BUSINESS.............................................61
6.23 REPRESENTATIONS AND WARRANTIES FROM OTHER LOAN DOCUMENTS.......61
ARTICLE VII AFFIRMATIVE COVENANTS............................................61
7.01 FINANCIAL STATEMENTS...........................................62
7.02 CERTIFICATES; OTHER INFORMATION................................62
7.03 NOTICES AND INFORMATION........................................64
7.04 PAYMENT OF OBLIGATIONS.........................................66
7.05 PRESERVATION OF EXISTENCE, ETC.................................66
7.06 MAINTENANCE OF PROPERTIES......................................66
7.07 MAINTENANCE OF INSURANCE.......................................66
7.08 COMPLIANCE WITH LAWS AND MATERIAL CONTRACTUAL OBLIGATIONS......66
7.09 BOOKS AND RECORDS..............................................67
7.10 INSPECTION RIGHTS..............................................67
7.11 USE OF PROCEEDS................................................67
7.12 INTENTIONALLY OMITTED..........................................67
7.13 SIGNIFICANT SUBSIDIARIES.......................................67
ARTICLE VIII NEGATIVE COVENANTS..............................................68
8.01 LIENS..........................................................68
8.02 INVESTMENTS....................................................70
8.03 SUBSIDIARY INDEBTEDNESS........................................71
8.04 FUNDAMENTAL CHANGES............................................73
8.05 DISPOSITIONS...................................................73
8.06 RESTRICTED PAYMENTS............................................74
8.07 CHANGE IN NATURE OF BUSINESS...................................74
8.08 TRANSACTIONS WITH AFFILIATES...................................75
8.09 BURDENSOME AGREEMENTS..........................................75
8.10 USE OF PROCEEDS................................................76
8.11 FINANCIAL COVENANTS............................................76
8.12 PREPAYMENT OF OTHER INDEBTEDNESS, ETC..........................77
8.13 ORGANIZATION DOCUMENTS; FISCAL YEAR............................77
8.14 LIMITATIONS ON ISSUANCES AND SALES OF CAPITAL STOCK OF
WHOLLY-OWNED SUBSIDIARIES......................................77
8.15 SALE LEASEBACKS................................................78
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES....................................78
9.01 EVENTS OF DEFAULT..............................................78
9.02 REMEDIES UPON EVENT OF DEFAULT.................................80
9.03 APPLICATION OF FUNDS...........................................81
ARTICLE X ADMINISTRATIVE AGENT...............................................82
10.01 APPOINTMENT AND AUTHORITY......................................82
10.02 RIGHTS AS A LENDER.............................................82
10.03 EXCULPATORY PROVISIONS.........................................82
10.04 RELIANCE BY ADMINISTRATIVE AGENT...............................83
10.05 DELEGATION OF DUTIES...........................................84
10.06 RESIGNATION OF ADMINISTRATIVE AGENT............................84
10.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.........85
10.08 NO OTHER DUTIES, ETC...........................................85
10.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.................85
ARTICLE XI MISCELLANEOUS.....................................................86
11.01 AMENDMENTS, ETC................................................86
11.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION...............88
11.03 NO WAIVER; CUMULATIVE REMEDIES.................................90
11.04 ATTORNEY COSTS, EXPENSES AND TAXES.............................90
11.05 INDEMNIFICATION BY THE BORROWER................................91
11.06 PAYMENTS SET ASIDE.............................................92
11.07 SUCCESSORS AND ASSIGNS.........................................93
11.08 CONFIDENTIALITY................................................97
11.09 SET-OFF........................................................98
11.10 INTEREST RATE LIMITATION.......................................98
11.11 COUNTERPARTS...................................................99
11.12 INTEGRATION....................................................99
11.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................99
11.14 SEVERABILITY...................................................99
11.15 TAX FORMS......................................................99
11.16 REPLACEMENT OF LENDERS........................................101
11.17 GOVERNING LAW.................................................102
11.18 WAIVER OF RIGHT TO TRIAL BY JURY..............................103
11.19 PATRIOT ACT...................................................103
SIGNATURES........S-1
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Pro Rata Shares
6.03 Required Consents, Authorizations, Notices and Filings
6.13(a) Corporate Structure
6.13(b) Subsidiaries
8.01 Existing Liens
8.02 Existing Investments
8.03 Existing Indebtedness
8.09 Existing Restrictions and Limitations on Subsidiaries
11.02 Administrative Agent's Office, Certain Addresses for Notices
11.07 Processing and Recordation Fees
EXHIBITS
A Form of Committed Loan Notice
B Form of Swing Line Loan Notice
C Form of Revolving Note
D Form of Compliance Certificate
E Form of Assignment and Assumption
CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, modified, restated or supplemented from
time to time, the "Agreement") is entered into as of June 28, 2005 by and among
DST SYSTEMS, INC., a Delaware corporation (together with any permitted
successors and assigns, the "BORROWER"), the Lenders (as defined herein), and
BANK OF AMERICA, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender
(each, as defined herein).
The Borrower has requested that the Lenders provide credit facilities in an
aggregate principal amount of $600,000,000 (the "CREDIT FACILITIES") for the
purposes hereinafter set forth, and the Lenders are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"250 ROYALL SALE" means the sale of that certain office building located at
250 Royall Street, Canton, Massachusetts, and all fixtures, equipment and
furniture located therein (in one or separate transactions).
"ACQUISITION", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all of the Capital
Stock or all or substantially all of the Property, or a business unit or product
line, of another Person, whether or not involving a merger or consolidation with
such other Person and whether for cash, property, services, assumption of
Indebtedness, securities or otherwise.
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address
and, as appropriate, account as set forth on SCHEDULE 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control
with the Person specified. "CONTROL" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative
thereto. Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 20% or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.
"AGENT-RELATED PERSONS" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, BAS), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"AGGREGATE REVOLVING COMMITMENTS" means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in effect
on the Closing Date is SIX HUNDRED MILLION DOLLARS ($600,000,000).
"AGREEMENT" has the meaning assigned to such term in the heading hereof.
"APPLICABLE RATE" means,
(i) with respect to extensions of credit under the Aggregate Revolving
Commitments, for the purposes of calculating (a) the Letter of Credit Fees
for the purposes of SECTION 2.03(I), (b) the interest rate applicable to
Revolving Loans that are Eurodollar Rate Loans for the purposes of SECTION
2.08(A), (c) the interest rate applicable to Revolving Loans that are Base
Rate Loans for the purposes of SECTION 2.08(A), (d) the Facility Fee for
the purposes of SECTION 2.09(A), and (e) the interest rate applicable to
Swing Line Loans for the purposes of SECTION 2.08(A), the following
percentages per annum, based upon the Consolidated Leverage Ratio as set
forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to SECTION 7.02(B) for the four-quarter
period ending as of the last day of the fiscal quarter to which such
Compliance Certificate relates:
------------ --------------- ----------- --------------- --------------- -----------------
Applicable
Rate for
Eurodollar All-in Drawn Applicable Rate
Consolidated Rate Loans, for for Alternate
Pricing Leverage Ratio Facility Swing Line Eurodollar Base Rate Loans
Level Fee Loans and Rate
Letter of
Credit Fees
------------ --------------- ----------- --------------- --------------- -----------------
I > 3.0 to 1.0 0.225% 0.900% 1.125% 0.000%
-
------------ --------------- ----------- --------------- --------------- -----------------
II < 3.0 to 1.0 0.200% 0.675% 0.875% 0.000%
but > 2.5 to
1.0
------------ --------------- ----------- --------------- --------------- -----------------
III < 2.5 to 1.0 0.175% 0.575% 0.750% 0.000%
-
but > 2.0 to
1.0
------------ --------------- ----------- --------------- --------------- -----------------
IV < 2.0 to 1.0 0.150% 0.475% 0.625% 0.000%
-
------------ --------------- ----------- --------------- --------------- -----------------
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
SECTION 7.02(B); PROVIDED, HOWEVER, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level I shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. Notwithstanding the foregoing,
the Applicable Rate initially shall be set at Pricing Level II, and will remain
at such level through December 31, 2005 or at Level I if so indicated by the
financial statements and Compliance Certificate for the fiscal quarters ending
on or about June 30, 2005 and/or September 30, 2005; PROVIDED, HOWEVER, that
commencing on January 1, 2006 the Applicable Rate shall be set at the applicable
level corresponding to the financial statements and Compliance Certificate for
the most recently ended fiscal quarter (i.e., as of January 1, 2006 the fiscal
quarter ending September 30, 2005), and will remain at such level until the
applicable pricing calculation date corresponding to the delivery of the
financial statements and Compliance Certificate for the subsequent fiscal
quarter..
"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.
"ARRANGERS" means a collective reference to each of BAS and Citigroup, each
in its capacity as joint lead arranger and joint book manager.
"ASSIGNEE GROUP" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of EXHIBIT F.
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated, non-duplicative cost of internal legal services and
all expenses and disbursements of internal counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2004
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.
"AVAILABILITY PERIOD" means, with respect to the Revolving Commitments, the
period from the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Revolving Commitments pursuant to SECTION
2.06 and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to SECTION 9.02.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
"BANKRUPTCY CODE" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BAS" means Banc of America Securities LLC and its successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate PLUS 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BASE RATE REVOLVING LOAN" means a Revolving Loan that is a Base Rate Loan.
"BORROWER" has the meaning specified in the heading hereof.
"BORROWER MATERIALS" has the meaning specified in SECTION 7.02.
"BORROWING" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"BUSINESSES" means, at any time, a collective reference to the businesses
operated by the Consolidated Parties at such time.
"CAPITAL LEASE" means, as applied to any Person, any lease of any Property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is required to be accounted for as a capital lease on the balance
sheet of that Person.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership
interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH COLLATERALIZE" has the meaning specified in SECTION 2.03(G).
"CASH EQUIVALENTS" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to
no other Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(d).
"CHANGE OF CONTROL" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in SECTIONS 13(D)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "OPTION RIGHT"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 35% or more of
the equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors; or
(c) there shall have occurred under any indenture or other instrument
evidencing Indebtedness in excess of $20,000,000, any "change of control"
(as defined in such indenture or other evidence of Indebtedness) obligating
the Borrower to repurchase, redeem or repay all or any part of the
Indebtedness or Capital Stock provided for therein.
"CITIBANK FORWARD" has the meaning set forth in SECTION 8.06(G).
"CITIGROUP" means Citigroup Global Markets Inc. and its successors.
"CLOSING DATE" means the first date all the conditions precedent in SECTION
5.01 are satisfied or waived in accordance with SECTION 5.01 (or in the case OF
SECTION 5.01(F), waived by the Person entitled to receive the applicable
payment).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, as to each Lender, the Revolving Commitment of such
Lender.
"COMMITTED BORROWING" means a borrowing consisting of simultaneous Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to SECTION 2.01.
"COMMITTED LOAN" means each Revolving Loan.
"COMMITTED LOAN NOTICE" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to SECTION 2.02(A), which, if in writing,
shall be substantially in the form of EXHIBIT A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT D.
"CONSOLIDATED EBITDA" means for any period for the Consolidated Parties on
a consolidated basis, the sum of (a) Consolidated Net Income, PLUS (b) an amount
which, in the determination of Consolidated Net Income, has been deducted for
(i) Consolidated Interest Expense, (ii) income taxes, (iii) depreciation and
amortization expense and (iv) non-cash stock compensation expense in an
aggregate amount not to exceed $40,000,000 in any fiscal year, all as determined
in accordance with GAAP.
"CONSOLIDATED FUNDED INDEBTEDNESS" means, as of any date of determination,
for the Consolidated Parties on a consolidated basis, without duplication, all
Indebtedness of the Consolidated Parties of the type referred to in clauses (a),
(b), (f), (g), (h), (i), (j), (l), (m) and (n) of the definition of
"Indebtedness" set forth in this SECTION 1.01. To the extent that the rights and
remedies of the obligee of any Consolidated Funded Indebtedness are limited to
certain property and are otherwise non-recourse to any Consolidated Party, the
amount of such Consolidated Funded Indebtedness shall be limited to the value of
the Consolidated Parties' interest in such property (valued at the higher of
book value or market value as of such date of determination). For purposes of
the calculation of the Consolidated Leverage Ratio, "Consolidated Funded
Indebtedness" shall exclude non-cash obligations of the Borrower and its
Subsidiaries incurred in connection with any Permitted Monetization Transaction.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Expense
for such period.
"CONSOLIDATED INTEREST EXPENSE" means for any period for the Consolidated
Parties on a consolidated basis, all interest expense (whether paid or accrued)
and capitalized interest, including without limitation (a) the amortization of
debt discount and premium, (b) the interest component under Capital Leases and
Synthetic Lease Obligations and (c) the implied interest component, discount or
other similar fees or charges in connection with any asset securitization
program, in each case as determined in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four prior fiscal quarters ending on
such date.
"CONSOLIDATED NET INCOME" means for any period for the Consolidated Parties
on a consolidated basis, net income (or loss) (excluding extraordinary items)
after interest expense, income taxes and depreciation and amortization, all as
determined in accordance with GAAP.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any date, Consolidated
Total Assets, less the sum of the value, as set forth or reflected in the most
recent consolidated balance sheet of the Consolidated Parties, calculated in
accordance with GAAP of:
(i) All assets which would be treated as intangible assets for balance
sheet presentation purposes under GAAP, excluding capitalized software but
including, without limitation, goodwill (as determined by the Borrower in a
manner consistent with its past accounting practices and in accordance with
GAAP), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense; and
(ii) To the extent not included in (i) of this definition and not
already eliminated, without duplication, any amount at which shares of
Capital Stock of the Borrower appear as an asset on the balance sheet of
its Subsidiaries.
"CONSOLIDATED NET WORTH" means, as of any date of determination,
consolidated shareholders' equity of the Consolidated Parties as of that date
determined in accordance with GAAP. The calculation of Consolidated Net Worth
shall exclude mark-to-market adjustments for Marketable Securities that are made
after the Closing Date.
"CONSOLIDATED PARTIES" means a collective reference to the Borrower and the
Subsidiaries of the Borrower, and "CONSOLIDATED PARTY" means any one of them.
"CONSOLIDATED TOTAL ASSETS" means, as of any date of determination with
respect to the Consolidated Parties on a consolidated basis, total assets, as
determined in accordance with GAAP.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" has the meaning specified in the definition of "Affiliate" set
forth in this SECTION 1.01.
"CONVERTIBLE SENIOR DEBENTURES" means, collectively, Series A Debentures
and the Series B Debentures.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"CSC SHARE EXCHANGE" means that certain transaction consummated on April
29, 2005 whereby Computer Sciences Corporation transferred the Capital Stock of
its Wholly Owned Subsidiary, CSC Healthcare Inc., a California corporation now
known as DST Health Solutions, Inc., to West Side in exchange for 7,128,772
shares of the Capital Stock of Computer Sciences Corporation.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base Rate PLUS (b)
the Applicable Rate, if any, applicable to Base Rate Loans PLUS (c) 2% per
annum; PROVIDED, HOWEVER, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan PLUS 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Loans or participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"DISPOSITION" or "DISPOSE" means any disposition (including pursuant to a
Sale and Leaseback Transaction) of any or all of the Property (including without
limitation the Capital Stock of a Subsidiary) of any Consolidated Party whether
by sale, lease, licensing, transfer or otherwise, but other than pursuant to any
casualty or condemnation event.
"DOLLAR" and "$" mean lawful money of the United States.
"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 the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"ELIGIBLE REINVESTMENT" means (a) any acquisition (whether or not
constituting a capital expenditure, but not constituting an Acquisition) of
assets or any business (or any substantial part thereof) used or useful in the
same or a similar line of business as the Borrower and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or expansions
thereof) and (b) any Permitted Acquisition.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any of its Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUISERVE DISPOSITION" shall mean the Disposition by the Borrower of all
of the shares of Capital Stock of Equiserve, Inc. to Computershare Ltd., an
Australian corporation ("CPU"), Computershare (US), a Delaware general
partnership ("CPU US") and EQAC Inc., a Delaware corporation ("EQAC") for
approximately $216,000,000 in cash and 29,605,000 shares of the Capital Stock of
CPU pursuant to the terms of a Stock Purchase Agreement dated as of October 20,
2004 by and among the Borrower, CPU, CPU US and EQAC.
"EQUITY ISSUANCE" means any issuance by any Consolidated Party to any
Person of (a) shares of its Capital Stock, (b) any shares of its Capital Stock
pursuant to the exercise of options or warrants, (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity or the
conversion of any class equity securities to any other class of equity
securities or (d) any options or warrants relating to its Capital Stock. The
term "Equity Issuance" shall not be deemed to include any Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"EURODOLLAR 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 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 Business Days prior to the commencement of such Interest Period.
"EURODOLLAR RATE LOAN" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 9.01.
"EXCLUDED DISPOSITION" means, with respect to any Consolidated Party, any
Disposition consisting of (i) the sale, lease, license, transfer or other
disposition of Property in the ordinary course of such Consolidated Party's
business, (ii) the sale, lease, license, transfer or other disposition of
machinery and equipment no longer used or useful in the conduct of such
Consolidated Party's business, (iii) any sale, lease, license, transfer or other
disposition of Property by such Consolidated Party to the Borrower, (iv) any
Involuntary Disposition by such Consolidated Party, (v) any Disposition by such
Consolidated Party constituting a Permitted Investment, (vi) if such
Consolidated Party is not the Borrower, any sale, lease, license, transfer or
other disposition of Property by such Consolidated Party to any Consolidated
Party that is not the Borrower, (vii) any Equity Issuance of Capital Stock of
the Borrower, (viii) the 250 Royall Sale, (ix) the State Street Sale, (x) West
Side's transfer of securities to a newly formed limited liability company that
is a Wholly Owned Subsidiary of West Side and (xi) in the case of West Side and
its Subsidiaries, Equiserve, Inc. and its Subsidiaries and Vermont Western
Assurance, Inc. and its Subsidiaries only, the sale of securities in the
ordinary course of business.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement dated as of
November 24, 2003 among the Borrower, West Side, Bank of America, as
administrative agent, and a syndicate of lenders.
"EXISTING LETTERS OF CREDIT" means those letters of credit issued by the
L/C Issuer prior to the Closing Date as more specifically set forth on SCHEDULE
1.01.
"FACILITY FEE" means has the meaning specified in SECTION 2.09(A).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank on the Business
Day next succeeding such day; PROVIDED that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate
charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.
"FEE LETTERS" means (i) the letter agreement, dated May 31, 2005, among the
Borrower, the Administrative Agent and the Arrangers, (ii) the letter agreement,
dated May 31, 2005 among the Borrower, the Administrative Agent and BAS and
(iii) the letter agreement, dated May 31, 2005 among the Borrower, the
Syndication Agent and Citigroup.
"FIRREA" means the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, as amended, including, without limitation,
12 CFR part 34.41 to 34.47.
"FOREIGN LENDER" has the meaning specified in SECTION 11.15(A)(I).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"FULLY SATISFIED" means, with respect to the Obligations as of any date,
that, as of such date, (a) all principal of and interest accrued to such date
which constitute Obligations shall have been irrevocably paid in full in cash,
(b) all fees, expenses and other amounts then due and payable which constitute
Obligations shall have been irrevocably paid in cash, (c) all outstanding
Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash
Collateralized or (iii) secured by one or more letters of credit on terms and
conditions, and with one or more financial institutions, reasonably satisfactory
to the L/C Issuer and (d) the Commitments shall have expired or been terminated
in full.
"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 in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GUARANTEE" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, with respect to any Person, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of Property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed; provided that for
purposes hereof, the amount of such Indebtedness shall be limited to the greater
of (i) the amount of such Indebtedness as to which there is recourse to such
Person and (ii) the fair marked value of the property which is subject to the
Lien, (g) all Guarantees of such Person with respect to Indebtedness of another
Person, (h) the Attributable Indebtedness of such Person with respect to Capital
Leases and Synthetic Lease Obligations, (i) all net obligations of such Person
under Swap Contracts, (j) the maximum amount
of all standby letters of credit issued or bankers' acceptances facilities
created for the account such Person and, without duplication, all unreimbursed
drafts drawn thereunder (less the amount of any cash collateral securing any
such letters of credit or and bankers' acceptances), (k) all obligations of such
Person to repurchase any securities issued by such Person at any time prior to
the Maturity Date which repurchase obligations are related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares, (l) the outstanding attributed principal
amount under any asset securitization program of such Person including without
limitation any notes or accounts receivable financing program, (m) all cash
obligations which arise in connection with any forward equity transactions which
are treated as borrower money indebtedness in accordance with GAAP and (n) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer to the extent such Indebtedness
is recourse to such Person. The amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value thereof as
of such date. To the extent that the rights and remedies of the obligee of any
Indebtedness are limited to certain property and are otherwise non-recourse to
such Person, the amount of such Indebtedness shall be limited to the value of
the Person's interest in such property (valued at the higher of book value or
market value as of such date of determination).
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 11.05.
"INDEMNITEES" has the meaning set forth in SECTION 11.05.
"INFORMATION" has the meaning specified in SECTION 11.08.
"INTELLECTUAL PROPERTY" has the meaning set forth in SECTION 6.17.
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; PROVIDED, HOWEVER, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Committed Loan Notice;
PROVIDED that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar
month at the end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"INVESTMENT" in any Person means (a) any Acquisition of such Person or its
Property, (b) any other acquisition of Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other securities of
such other Person, (c) any deposit with, or advance, loan or other extension of
credit to, such Person (other than deposits made in connection with the purchase
of equipment inventory and supplies in the ordinary course of business) or (d)
any other capital contribution to or investment in such Person, including,
without limitation, any Guarantee (including any support for a letter of credit
issued on behalf of such Person) incurred for the benefit of such Person and any
Disposition to such Person for consideration less than the fair market value of
the Property disposed in such transaction, but excluding any Restricted Payment
to such Person. Investments which are capital contributions or purchases of
Capital Stock which have a right to participate in the profits of the issuer
thereof shall be valued at the amount (or, in the case of any Investment made
with Property other than cash, the book value of such Property) actually
contributed or paid (including cash and non-cash consideration and any
assumption of Indebtedness) to purchase such Capital Stock as of the date of
such contribution or payment, LESS the amount of all repayments and returns of
principal or capital thereon to the extent paid in cash or Cash Equivalents (or,
in the case of any Investment made with Property other than cash, upon return of
such Property, by an amount equal to the lesser of the book value of such
Property at the time of such Investment or the fair market value of such
Property at the time of such return) and received after the Closing Date.
Investments which are loans, advances, extensions of credit or Guarantees shall
be valued at the principal amount of such loan, advance or extension of credit
outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guarantees.
"INVOLUNTARY DISPOSITION" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of any
Consolidated Party.
"IRS" means the United States Internal Revenue Service.
"ISSUER DOCUMENTS" means with respect to any Letter of Credit, the Letter
of 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 the L/C
Issuer and relating to any such Letter of Credit.
"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 Pro Rata Share.
"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 of Revolving Loans.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
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 1.07.
"LENDERS" means a collective reference to the Persons identified as
"Lenders" on the signature pages hereto, together with any Person that
subsequently becomes a Lender by way of assignment in accordance with the terms
of SECTION 11.07, together with their respective successors, and "LENDER" means
any one of them, and, as the context requires, includes the L/C Issuer and the
Swing Line Lender.
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a standby
letter of credit only.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is 35 days prior to
the Maturity 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 set forth in SECTION 2.03(i).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to $25,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing).
"LOAN" means any extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan and/or a Swing Line Loan, as the
context may require. The term "LOAN" also shall mean, any portion of the
Revolving Loans bearing interest at the same rate of interest and having an
Interest Period which begins and ends on the same date.
"LOAN DOCUMENTS" means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application and each Fee Letter.
"MARKETABLE SECURITIES" means marketable securities that are freely traded
on either the New York Stock Exchange or the American Stock Exchange or on the
NASDAQ National Market System or any other similar exchanges worldwide and held
for investment purposes only.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Borrower to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the rights and
remedies of the Lenders or the Administrative Agent under any of the Loan
Documents, including any material adverse effect on the legality, validity,
binding effect or enforceability against the Borrower of any Loan Document to
which it is a party.
"MATURITY DATE" means, July 1, 2010.
"MONETIZATION HEDGING AGREEMENT" has the meaning set forth in the
definition of "Monetization Transaction."
"MONETIZATION SECURITIES AGREEMENT" has the meaning set forth in the
definition of "Monetization Transaction."
"MONETIZATION SPE" means a special purpose entity organized by the Borrower
or a Subsidiary of the Borrower (i) the sole purpose of which is to enter into
any one or more Monetization Transactions and (ii) the assets and liabilities of
which consist solely of Monetized Marketable Securities, Monetization Hedging
Agreements, Monetization Securities Agreements, Indebtedness that is (a) secured
solely by any of the foregoing and (b) otherwise non-recourse to the
Consolidated Parties (other than such Monetization SPE), and other assets and
liabilities directly related to or arising out of the foregoing.
"MONETIZATION TRANSACTION" means any one or more of the following
transactions and any combination thereof: (i) any Swap Contract relating to any
Monetized Marketable Securities ("MONETIZATION HEDGING Agreement"), (ii) any
repurchase agreement, securities loan agreement or securities forward
transaction agreement relating to any Monetized Marketable Securities
(collectively, "MONETIZATION SECURITIES AGREEMENTS"), (iii) incurrence of any
Indebtedness that is (a) secured solely by any Monetized Marketable Securities
and/or any Monetization Hedging
Agreement or Monetization Securities Agreement and (b) otherwise non-recourse to
the Consolidated Parties (other than such Monetization SPE), (iv) any
Disposition of Monetized Marketable Securities and (v) organization by the
Borrower or a Subsidiary of a Monetization SPE.
"MONETIZED MARKETABLE SECURITIES" means Marketable Securities now or
hereafter owned by the Borrower or any of its Subsidiaries and that are the
subject of a Monetization Transaction.
"MOODY'S" means Moody's Investors Service, Inc. and any successor thereto.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means the aggregate cash or Cash Equivalents proceeds
received by any Consolidated Party in respect of any Equity Issuance, net of (a)
direct costs incurred in connection therewith (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and (b)
taxes paid or payable as a result thereof; it being understood that "Net Cash
Proceeds" shall include, without limitation, any cash or Cash Equivalents
received upon the sale or other disposition of any non-cash consideration
received by any such Consolidated Party in any Equity Issuance.
"NONSIGNIFICANT SUBSIDIARY" has the meaning set forth in SECTION 7.13
hereof.
"NOTE" or "NOTES" means the Revolving Notes, individually or collectively,
as appropriate.
"OBLIGATIONS" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including (i) interest
and fees that accrue after the commencement by or against the Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding, and (ii) the Swap Termination Value
of any Swap Contract of the Borrower to which a Lender or any Affiliate of such
Lender is a party.
"OPERATING LEASE" means, as applied to any Person, any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any Property (whether real, personal or mixed) which is not a Capital Lease
other than any such lease in which that Person is the lessor.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OUTSTANDING AMOUNT" means (i) 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
or Swing Line Loans as the case may be, occurring on such date; and (ii) 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 of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date.
"PARTICIPANT" has the meaning specified in SECTION 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"PERMITTED ACQUISITION" means an Acquisition by the Borrower or any
Subsidiary of the Borrower permitted pursuant to the terms of SECTION 8.02(i).
"PERMITTED INVESTMENTS" means, at any time, Investments by the Consolidated
Parties permitted to exist at such time pursuant to the terms of SECTION 8.02.
"PERMITTED LIENS" means, at any time, Liens in respect of Property of the
Consolidated Parties permitted to exist at such time pursuant to the terms of
SECTION 8.01.
"PERMITTED MONETIZATION TRANSACTION" means any Monetization Transaction in
an aggregate amount with all other Permitted Monetization Transactions not to
exceed $500,000,000 so long as no Default will otherwise exist after giving
effect to such transaction.
"PERMITTED SECURITIZATION TRANSACTION" means any Securitization Transaction
entered into by the Borrower or any of its Subsidiaries so long as (i) the
attributed principal amount thereof does not exceed $200,000,000 and (ii) no
Default will otherwise exist after giving effect to such transaction.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"PLATFORM" has the meaning specified in SECTION 7.02.
"PRO FORMA BASIS" means, for purposes of calculating (utilizing the
principles set forth in SECTION 1.03(c)) compliance with each of the financial
covenants set forth in SECTION 8.11(a)-(c) in respect of a proposed transaction,
that such transaction shall be deemed to have occurred as of the first day of
the four fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the Administrative
Agent has received the Required Financial Information. As used herein,
"transaction" shall mean (a) any Disposition as referred to in SECTION 8.05
(other than an Excluded Disposition) of Property having a book value in excess
of $25,000,000 or (b) any Acquisition as referred to in SECTION 8.02(i), for
consideration of more than $25,000,000. In connection with any calculation of
the financial covenants set forth in SECTION 8.11(a)-(c) upon giving effect to a
transaction on a Pro Forma Basis:
(i) for purposes of any such calculation in respect of any Disposition as
referred to in SECTION 8.05, (A) income statement items (whether
positive or negative) attributable to the Person or Property disposed
of shall be excluded and (B) any Indebtedness which is retired in
connection with such transaction shall be excluded and deemed to have
been retired as of the first day of the applicable period; and
(ii) for purposes of any such calculation in respect of any Acquisition as
referred to in SECTION 8.02(i), (A) any Indebtedness incurred or
assumed by any Consolidated Party (including the Person or Property
acquired) in connection with such transaction and any Indebtedness of
the Person or Property acquired which is not retired in connection
with such transaction (1) shall be deemed to have been incurred as of
the first day of the applicable period and (2) if such Indebtedness
has a floating or formula rate, shall have an implied rate of interest
for the applicable period for purposes of this definition determined
by utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination and (B)
income statement items (whether positive or negative) attributable to
the Person or Property acquired shall be included beginning as of the
first day of the applicable period.
"PRO FORMA COMPLIANCE CERTIFICATE" means a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent (to the extent
required) in connection with any Acquisition as referred to in SECTION 8.02(i)
for consideration in excess of $25,000,000, as applicable, and containing
reasonably detailed calculations, upon giving effect to the applicable
transaction on a Pro Forma Basis, of the Consolidated Leverage Ratio, the
Consolidated Interest
Coverage Ratio and Consolidated Net Worth as of the most recent fiscal quarter
end preceding the date of the applicable transaction with respect to which the
Administrative Agent shall have received the Required Financial Information.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means as to each Lender with respect to such Lender's
Revolving Commitment at any time, a fraction (expressed as a percentage, carried
out to the ninth decimal place), the numerator of which is the amount of the
Revolving Commitment of such Lender at such time and the denominator of which is
the amount of the Aggregate Revolving Commitments at such time; PROVIDED that if
the commitment of each Lender to make Revolving Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
SECTION 9.02, then the Pro Rata Share of such Lender shall be determined based
on the Pro Rata Share of such Lender immediately prior to such termination and
after giving effect to any subsequent assignments made pursuant to the terms
hereof. The initial Pro Rata Share of each Lender is set forth opposite the name
of such Lender on SCHEDULE 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"REAL PROPERTIES" means, at any time, a collective reference to each of the
facilities and real properties owned, leased or operated by the Consolidated
Parties at such time.
"RECEIVABLES" shall mean all obligations of any obligor (whether now
existing or hereafter arising) under a contract for sale of property, goods or
services made in the ordinary course of business by the Borrower or any of its
Subsidiaries, which shall include any obligation of such obligor (whether now
existing or hereafter arising) to pay interest, finance charges or amounts with
respect thereto and, with respect to any of the foregoing receivables or
obligations, (a) all of the interest of the Borrower or any of its Subsidiaries
in the goods (including returned goods) the sale of which gave rise to such
receivable or obligation after the passage of title thereto to any obligor, (b)
all other Liens and property subject thereto from time to time purporting to
secure payment of such receivables or obligations, and (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any such
receivables or obligations.
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"REGISTER" has the meaning set forth in SECTION 11.07(c).
"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.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Committed
Borrowing, conversion or continuation of Committed Loans, a Committed Loan
Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"REQUIRED FINANCIAL INFORMATION" means, with respect to each fiscal period
or quarter of the Borrower, (a) the financial statements required to be
delivered pursuant to SECTION 7.01(a) or (b) for such fiscal period or quarter,
and (b) the certificate of a Responsible Officer of the Borrower required by
SECTION 7.02(b) to be delivered with the financial statements described in
clause (a) above.
"REQUIRED LENDERS" means, at any time, Lenders holding in the aggregate
more than 50% of (a) the unfunded Commitments (and participations therein) and
the outstanding Loans and participations therein, L/C Obligations and
participations therein or (b) if the Commitments have been terminated, the
outstanding Loans and participations therein, L/C Obligations and participations
therein. The unfunded Commitments of, and the outstanding Loans held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president, chief
financial officer, treasurer, chief accounting officer or controller of the
Borrower. Any document delivered hereunder that is signed by a Responsible
Officer of the Borrower shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have
acted on behalf of the Borrower.
"RESTRICTED PAYMENT" means (a) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any Consolidated Party, now or hereafter outstanding (including
without limitation (x) any payment in connection with any dissolution, merger,
consolidation or disposition involving any Consolidated Party or (y) any cash
payment in connection with settling forward equity transactions involving any of
the Borrower or any of its Subsidiaries), or to the holders, in their capacity
as such, of any shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding or (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding.
"REVOLVING COMMITMENT" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to SECTION 2.01(a), (b) purchase
participations in L/C Obligations and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on SCHEDULE 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"REVOLVING LOAN" has the meaning specified in SECTION 2.01(a).
"REVOLVING NOTE" has the meaning specified in SECTION 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"SALE AND LEASEBACK TRANSACTION" means any arrangement pursuant to which
any Consolidated Party, directly or indirectly, becomes liable as lessee,
guarantor or other surety with respect to any lease, whether an Operating Lease
or a Capital Lease, of any Property (a) which such Consolidated Party has sold
or transferred (or is to sell or transfer) to a Person which is not a
Consolidated Party or (b) which such Consolidated Party intends to use for
substantially the same purpose as any other Property which has been sold or
transferred (or is to be sold or transferred) by such Consolidated Party to
another Person which is not a Consolidated Party in connection with such lease.
"SARBANES-OXLEY" means the Sarbanes-Oxley Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities Exchange
Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or incorporated
by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder.
"SECURITIZATION TRANSACTION" means any transaction of any Consolidated
Party providing for sales, transfers or conveyances of Receivables purporting to
be sales (and considered sales under GAAP) that do not provide, directly or
indirectly, for recourse against the seller of such Receivables (or against any
of such seller's Affiliates) by way of a guaranty or any other support
arrangement, with respect to the amount of such Receivables (based on the
financial condition or circumstances of the obligor thereunder), other than such
limited recourse as is reasonable given market standards for transactions of a
similar type, taking into account such factors as historical bad debt loss
experience and obligor concentration levels.
"SERIES A DEBENTURES" means those certain 4.125% Series A Convertible
Senior Debentures due 2023 in the aggregate principal amount of $540,000,000,
issued under that certain Indenture dated as of August 12, 2003, with JPMorgan
Chase Bank as Trustee.
"SERIES B DEBENTURES" means those certain 3.625% Series B Convertible
Senior Debentures due 2023 in the aggregate principal amount of $300,000,000,
issued under that certain Indenture dated as of August 12, 2003, with JPMorgan
Chase Bank as Trustee.
"SIGNIFICANT SUBSIDIARY" means, on any date of determination, each of (a)
West Side, (b) DST Output, LLC, (c) Equiserve Inc. until the consummation of the
Equiserve Disposition and (d) any other Subsidiary the assets of which represent
on such date more than 10% of Consolidated Total Assets.
"SOLVENT" or "SOLVENCY" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"STATE STREET SALE" means the sale or other disposition of up to 1,400,000
shares of the Capital Stock of State Street Corporation held by West Side.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of any of the Consolidated
Parties which by its terms is subordinated to the Obligations in a manner and to
an extent acceptable to the Required Lenders.
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a
"MASTER AGREEMENT"), including any such obligations or liabilities under any
Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE" means the revolving credit facility made available by the
Swing Line Lender pursuant to SECTION 2.04.
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
SECTION 2.04.
"SWING LINE LENDER" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning specified in SECTION 2.04(a).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to SECTION 2.04(b), which, if in writing, shall be substantially in the form of
EXHIBIT B.
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a)
$50,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"SYNDICATION AGENT" means Citibank, N.A. and its successors and assigns in
its capacity a syndication agent for the Lenders.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TAXES" has the meaning specified in SECTION 3.01(a).
"THRESHOLD AMOUNT" means $20,000,000.
"TOTAL REVOLVING OUTSTANDINGS" means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"TYPE" means, with respect to any Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in SECTION 2.03(c)(i).
"WEST SIDE" means West Side Investments, Inc., a Wholly Owned Subsidiary of
the Borrower.
"WEST SIDE CREDIT AGREEMENT" means the Credit Agreement dated as of
November 30, 1998 by and among West Side and Bank of America, as amended,
modified, refinanced or replaced from time to time (including a restructuring
pursuant to which a Wholly Owned Subsidiary of West Side becomes the borrower
thereunder).
"WHOLLY OWNED SUBSIDIARY" means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Borrower.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "HEREIN," "HERETO," "HEREOF" and "HEREUNDER" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "INCLUDING" is by way of example and not
limitation.
(iv) The term "DOCUMENTS" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the Audited Financial Statements; PROVIDED, HOWEVER, that calculations
of Attributable Indebtedness under any Synthetic Lease Obligations or the
implied interest component of any Synthetic Lease Obligations shall be made by
the Borrower in accordance with accepted financial practice and consistent with
the terms of such Synthetic Lease Obligations.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either 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.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made under the financial covenants set
forth in SECTION 8.11 (including without limitation for purposes of the
definitions of "Applicable Rate" and "Pro Forma Basis" set forth in SECTION
1.01), (i) after consummation of any Disposition (other than an Excluded
Disposition) of Property having a book value in excess of $25,000,000 (A) income
statement items (whether positive or negative) and capital expenditures
attributable to the Property disposed of shall be excluded and (B) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the
first day of the applicable period and (ii) after consummation of any
Acquisition for consideration in excess of $25,000,000 (A) income statement
items (whether positive or negative) and capital expenditures attributable to
the Person or Property acquired shall, to the extent not otherwise included in
such income statement items for the Consolidated Parties in accordance with GAAP
or in accordance with any defined terms set forth in SECTION 1.01, be included
to the extent relating to any period applicable in such calculations and (B) to
the extent not retired in connection with such Acquisition, Indebtedness
of the Person or Property acquired shall be deemed to have been incurred as of
the first day of the applicable period.
1.04 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).
1.05 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.07 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified herein, the amount of a Letter of Credit at any
time shall be deemed to be 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 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.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS.
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans (each such loan, a "REVOLVING LOAN") to the Borrower from
time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender's Revolving Commitment; PROVIDED, HOWEVER, that after giving effect to
any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not
exceed the
Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, PLUS such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment. Within the limits of each Lender's Revolving Commitment,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this SECTION 2.01(a), prepay under SECTION 2.05(a), and reborrow under
this SECTION 2.01(a). Revolving Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the irrevocable notice from the Borrower to the Administrative Agent, which
may be given by telephone (provided that such telephonic notice complies with
the information requirements of the form of Committed Loan Notice attached
hereto). Each such notice must be received by the Administrative Agent not later
than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and (ii)
on the requested date of any Borrowing of Base Rate Loans; PROVIDED, HOWEVER,
all Committed Borrowings made on the Closing Date shall be made as Base Rate
Loans. Each telephonic notice by the Borrower pursuant to this SECTION 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in SECTIONS 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of
one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in SECTION 5.02 (and, if such Borrowing is the initial Credit
Extension, SECTION 5.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; PROVIDED,
HOWEVER, that if, on the date a Committed Loan Notice with respect to a
Borrowing consisting of Revolving Loans is given by the Borrower, there are
Swing Line Loans outstanding (for which the Swing Line Lender has demanded
payment pursuant to SECTION 2.07(c)) or L/C Borrowings outstanding, then the
proceeds of such Borrowing shall be applied, FIRST, to the payment in full of
any such L/C Borrowings, SECOND, to the payment in full of any such Swing Line
Loans, and third, to the Borrower as provided above.
(c) Subject to SECTION 3.05, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate
Loan. During the existence of a Default, no Loans may be requested as, converted
to or continued as Eurodollar Rate Loans having Interest Periods greater than
one month without the consent of the Required Lenders. During the existence of
an Event of Default, no Loans may be converted to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten (10) Interest Periods
in effect with respect to Revolving Loans.
2.03 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 other Lenders set
forth in this SECTION 2.03, (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 for the account of the
Borrower, and to amend or renew Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower; PROVIDED that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in any Letter of
Credit if as of the date of such L/C Credit Extension, (x) the Total
Revolving Outstandings would exceed the Aggregate Revolving Commitments,
(y) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
PLUS such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans would exceed such Lender's Revolving Commitment, or
(z) the Outstanding Amount of the L/C Obligations would exceed the Letter
of Credit Sublimit. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it;
(B) subject to SECTION 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless the L/C
Issuer and all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer applicable to all applicants for
letters of credit of the L/C Issuer generally; or
(E) such Letter of Credit is in an initial stated amount less
than $100,000 or is to be denominated in a currency other than
Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its 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.
(iv) 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 X with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in ARTICLE X 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;
AUTO-RENEWAL LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (1) the Letter of
Credit to be amended; (2) the proposed date of amendment thereof (which
shall be a Business Day); (3) the nature of the proposed amendment; and (4)
such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Pro Rata Share TIMES the amount of such Letter
of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"AUTO-RENEWAL LETTER OF CREDIT"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "NONRENEWAL NOTICE DATE") in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Notwithstanding any provision to the contrary in any such
Letter of Credit, in no event shall any such Auto-Renewal Letter of Credit
at any time have an expiry date later than the Letter of Credit Expiration
Date. Unless otherwise directed by the L/C Issuer, the Borrower shall not
be required to make a specific request to the L/C Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; PROVIDED, HOWEVER,
that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer
has determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of SECTION 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit
such renewal or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in SECTION
5.02 is not then satisfied, and in each case directing the L/C Issuer not
to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "HONOR DATE"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the
amount of the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the
amount of such Lender's Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a Borrowing of Base Rate Revolving 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
2.02 for the principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in SECTION 5.02 (other than the delivery of a
Committed Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this SECTION 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; PROVIDED that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to SECTION 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of SECTION 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to the
Borrower in such amount. The Administrative Agent shall remit the funds so
received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Revolving Loans because the
conditions set forth in SECTION 5.02 (other than delivery of a Committed
Loan Notice) cannot be satisfied or for any other reason, the Borrower
shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the Default Rate. In such event, each Lender's
payment to the Administrative Agent for the account of the L/C Issuer
pursuant to SECTION 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
SECTION 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this SECTION 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share 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 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, HOWEVER, that each Lender's obligation to make
Revolving Loans pursuant to this SECTION
2.03(c) is subject to the conditions set forth in SECTION 5.02 (other than
delivery by the Borrower of a Committed Loan Notice). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this SECTION 2.03(c) by the
time specified in SECTION 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with SECTION 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share 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 2.03(c)(i) is required to be
returned under any of the circumstances described in SECTION 11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, PLUS interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect. 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 agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUER. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to
its use of any Letter of Credit; PROVIDED, HOWEVER, that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any
of the respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in clauses (i)
through (v) of SECTION 2.03(e); provided, HOWEVER, that anything in such clauses
to the contrary notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct, gross negligence or breach of this Agreement
the L/C Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest 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 THE INTERNATIONAL STANDBY PRACTICES 1998. 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), the rules of the "International Standby Practices 1998" published by
the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each 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 Pro Rata Share a
Letter of Credit fee (the "LETTER OF CREDIT FEE") for each Letter of Credit
equal to the Applicable Rate TIMES 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 1.07. Such
letter of credit fees shall be computed on a quarterly basis in arrears, and
shall be 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 Rate during
any quarter, the daily amount available to be drawn under each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
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 a
fronting fee, with respect to each Letter of Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the tenth Business Day after the end of each March,
June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), 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
1.07. In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) CONFLICT WITH LETTER OF CREDIT APPLICATION. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 SWING LINE LOANS
(a) THE SWING LINE. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees to make loans (each such loan, a "SWING LINE LOAN")
to the Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Pro Rata Share of the Outstanding Amount of Revolving
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed
the amount of such Lender's Commitment; PROVIDED, HOWEVER, that after giving
effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, PLUS such Lender's Pro Rata Share
of the Outstanding Amount of all L/C Obligations, PLUS such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and PROVIDED, FURTHER, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this SECTION
2.04, prepay under SECTION 2.05, and reborrow under this SECTION 2.04.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender's Pro Rata Share TIMES the amount of such
Swing Line Loan.
(b) BORROWING PROCEDURES. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $100,000 and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of SECTION
2.04(a), or (B) that one or more of the applicable conditions specified in
ARTICLE V is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower in immediately available funds.
(c) REFINANCING OF SWING LINE LOANS.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Revolving Loan in an amount equal to such Lender's
Pro Rata Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to
be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of SECTION 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject
to the unutilized portion of the Aggregate Commitments and the conditions
set forth in SECTION 5.02. The Swing Line Lender shall furnish the Borrower
with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Pro Rata Share of the amount specified in such
Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 10:00 a.m. on the day
specified in such Committed Loan Notice, whereupon,
subject to SECTION 2.04(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Revolving Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with SECTION 2.04(c)(i), the
request for Base Rate Revolving Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to SECTION 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this SECTION
2.04(c) by the time specified in SECTION 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this SECTION
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; PROVIDED,
HOWEVER, that each Lender's obligation to make Revolving Loans pursuant to
this SECTION 2.04(c) is subject to the conditions set forth in SECTION
5.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans, together
with interest as provided herein.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's risk participation was funded) in the same funds
as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender
under any of the circumstances described in SECTION 11.06 (including
pursuant to any settlement entered into by the Swing Line Lender in its
discretion), each Lender shall pay to the Swing Line Lender its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate
per annum equal to the Federal Funds Rate. The Administrative Agent will
make such demand upon the request of the Swing Line Lender. The obligations
of the Lenders under this clause shall survive the payment in full of the
Obligations and termination of this Agreement.
(e) INTEREST FOR ACCOUNT OF SWING LINE LENDER. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Revolving Loan or risk participation
pursuant to this SECTION 2.04 to refinance such Lender's Pro Rata Share of any
Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for
the account of the Swing Line Lender.
(f) PAYMENTS DIRECTLY TO SWING LINE LENDER. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS OF LOANS.
(a) VOLUNTARY PREPAYMENTS.
(i) COMMITTED LOANS. The Borrower may, upon notice to the
Administrative Agent, at any time or from time (A) voluntarily prepay Base
Rate Loans in whole or in part without premium or penalty, and (B) subject
to Section 3.05 hereof, voluntarily prepay Eurodollar Rate Loans in whole
or in part on the last day of the applicable Interest Period without
premium or penalty; PROVIDED that (I) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (x) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (y) on the
date of prepayment of Base Rate Loans; (II) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if less, the entire principal amount
thereof then outstanding); and (III) any prepayment of Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to SECTION 3.05.
Each such prepayment shall be applied to the Committed Loans of the Lenders
in accordance with their respective Pro Rata Shares.
(ii) SWING LINE LOANS. The Borrower may, upon notice to the Swing Line
Lender (with a copy to the Administrative Agent), at any time or from time
to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 1:00 p.m. on the date of
the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.
(b) MANDATORY PREPAYMENTS.
(i) AGGREGATE REVOLVING COMMITMENTS. If for any reason the Total
Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay Revolving
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess; PROVIDED, HOWEVER, that the Borrower shall not be
required to Cash Collateralize the L/C Obligations pursuant to this SECTION
2.05(b)(i) unless after the prepayment in full of the Revolving Loans the
Total Revolving Outstandings exceed the Letter of Credit Sublimit.
(ii) APPLICATION OF MANDATORY PREPAYMENTS. All amounts required to be
paid pursuant to this SECTION 2.05(b) shall be applied, with respect to all
amounts prepaid pursuant to SECTION 2.05(b)(i), to Revolving Loans and
(after all Revolving Loans have been repaid) to Cash Collateralize L/C
Obligations;
Within the parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans
in direct order of Interest Period maturities. All prepayments under this
SECTION 2.05(b) shall be subject to SECTION 3.05, but otherwise without
premium or penalty, and shall be accompanied by interest on the principal
amount prepaid through the date of prepayment.
(iii) PREPAYMENT ACCOUNT. If the Borrower is required to make a
mandatory prepayment of Eurodollar Rate Loans under this SECTION 2.05(b),
the Borrower shall have the right, in lieu of making such prepayment in
full, to deposit an amount equal to such mandatory prepayment with the
Administrative Agent in a cash collateral account maintained (pursuant to
documentation reasonably satisfactory to the Administrative Agent) by and
in the sole dominion and control of the Administrative Agent. Any amounts
so deposited shall be held by the Administrative Agent as collateral for
the prepayment of such Eurodollar Rate Loans and shall be applied to the
prepayment of the applicable Eurodollar Rate Loans at the end of the
current Interest Periods applicable thereto. At the request of the
Borrower, amounts so deposited shall be invested by the Administrative
Agent in Cash Equivalents maturing prior to the date or dates on which it
is anticipated that such amounts will be applied to prepay such Eurodollar
Rate Loans; any interest earned on such Cash Equivalents will be for the
account of the Borrower and the Borrower will deposit with the
Administrative Agent the amount of any loss on any such Cash Equivalents to
the extent necessary in order that the amount of the prepayment to be made
with the deposited amounts may not be reduced.
2.06 TERMINATION OR REDUCTION OF AGGREGATE REVOLVING COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments; PROVIDED
that (i) any such notice shall be received by the Administrative Agent not later
than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrower shall not terminate or reduce the Aggregate Revolving Commitments if,
after giving effect thereto and to any concurrent prepayments hereunder, the
Total Revolving Outstandings would exceed the Aggregate Revolving Commitments,
and (iv) if, after giving effect to any reduction of the Aggregate Revolving
Commitments, the Letter of Credit Sublimit or Swing Line Sublimit exceeds the
amount of the Aggregate Revolving Commitments, such Sublimit shall be
automatically reduced by the amount of such excess.
(b) GENERAL. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Revolving
Commitments. Any reduction of the Aggregate Revolving Commitments shall be
applied to the Revolving Commitment of each Lender according to its Pro Rata
Share. All commitment fees accrued until the effective date of any termination
of the Aggregate Revolving Commitments shall be paid on the effective date of
such termination.
2.07 REPAYMENT OF LOANS.
(a) REVOLVING LOANS. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Revolving Loans outstanding on
such date.
(b) SWING LINE LOANS. The Borrower shall repay each Swing Line Loan on the
earlier to occur of (i) the demand of the Swing Line Lender and (ii) the
Maturity Date.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period PLUS the Applicable Rate; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate PLUS the Applicable
Rate and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Federal Funds Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
upon the instruction of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on all Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES.
In addition to certain fees described in subsections (i) and (j) of SECTION
2.03:
(a) FACILITY FEE. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Rate TIMES the actual daily amount of
the Aggregate Revolving Commitments (or, if the Aggregate Revolving
Commitments have terminated, on the Outstanding Amount of all Revolving
Loans, Swing Line Loans and L/C Obligations), regardless of usage (the
"FACILITY FEE"). The Facility Fee shall accrue at all times during the
Availability Period (and thereafter so long as any Committed Loans, Swing
Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in ARTICLE IV is not met, and
shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand). The Facility Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate
during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(b) OTHER FEES. The Borrower shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letters. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue
on a Loan, or any portion thereof, for the day on which the Loan or such portion
is paid, PROVIDED that any Loan that is
repaid on the same day on which it is made shall, subject to SECTION 2.12(a),
bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall be in the form of EXHIBIT C (a "REVOLVING NOTE"). Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the Administrative
Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in the applicable Borrowing. If such Lender does not pay such
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and the
Borrower shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to
the rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
ARTICLE II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in ARTICLE V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Committed Loans and to
fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of
any Lender to make any Committed Loan or to fund any such participation on any
date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Committed Loan or purchase its
participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Committed Loans made by it, or the participations in
L/C Obligations or Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Committed
Loans made by them and/or such subparticipations in the participations in L/C
Obligations or Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Committed Loans or such participations, as the case may be, pro rata
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in SECTION 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such purchase shall to
that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without
further interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to SECTION 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, EXCLUDING, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "TAXES"). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof. the Borrower shall not, however, be required
to pay any amounts pursuant to clause (i) of the preceding sentence to any
Foreign Lender or any Administrative Agent not organized under the laws of the
United States or a state thereof (or the District of Columbia) if the Foreign
Lender or such Administrative Agent fails to comply with the requirements of
SECTION 11.15.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "OTHER TAXES").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section) paid by the
Administrative Agent and such Lender, (ii) amounts payable under SECTION 3.01(c)
and (iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether or not
such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes a
demand therefor.
3.02 ILLEGALITY.
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or any
change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which SECTION 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements contemplated by
SECTION 3.04(c)), then from time to time upon demand of such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall be
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, PROVIDED the Borrower shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
3.05 FUNDING LOSSES.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to SECTION 11.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this SECTION 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this ARTICLE III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under SECTION 3.01 or
3.04, the Borrower may replace such Lender in accordance with SECTION 11.16.
3.07 SURVIVAL.
All of the Borrower's obligations under this ARTICLE III shall survive
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV
INTENTIONALLY OMITTED.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 CONDITIONS OF CLOSING DATE AND INITIAL CREDIT EXTENSION.
The occurrence of the Closing Date, the effectiveness of this Agreement and
the obligation of each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:
(a) LOAN DOCUMENTS, ORGANIZATION DOCUMENTS, ETC. The Administrative
Agent's receipt of the following, each of which shall be originals or
facsimiles (followed
promptly by originals) unless otherwise specified, each properly executed
by a Responsible Officer of the Borrower, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before
the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and any other Loan
Documents to be delivered on the Closing Date;
(ii) a Note (or Notes, as applicable) executed by the Borrower in
favor of each Lender requesting a Note;
(iii) copies of the Organization Documents of the Borrower
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation or organization, where applicable, and certified
by a secretary or assistant secretary of the Borrower to be true and
correct as of the Closing Date;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Borrower as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which the Borrower is a
party; and
(v) such documents and certifications as the Administrative Agent
may reasonably require to evidence that the Borrower is duly organized
or formed, and is validly existing, in good standing and qualified to
engage in business in (A) the jurisdiction of its incorporation or
organization and (B) each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) OPINIONS OF COUNSEL. The Administrative Agent shall have received,
(i) a legal opinion of Kaye Scholer LLP, outside counsel for the Borrower
and (ii) a legal opinion of Randall D. Young, general counsel for the
Borrower, in each case dated as of the Closing Date and in form and
substance reasonably satisfactory to the Administrative Agent:
(c) OFFICER'S CERTIFICATES. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer of
the Borrower as of the Closing Date, in form and substance satisfactory to
the Administrative Agent, stating that (A) the conditions specified in
SECTIONS 5.02(a) and (b) have been satisfied, (B) the Borrower is in
compliance with all existing financial obligations, (C) all governmental,
shareholder and third party consents and approvals, if any, with respect to
the Loan Documents and the transactions contemplated thereby have been
obtained (and attaching copies thereof) and (D) no action, suit,
investigation or proceeding is pending or threatened
in any court or before any arbitrator or governmental instrumentality that
purports to affect the Borrower or any transaction contemplated by the Loan
Documents, if such action, suit, investigation or proceeding could have a
Material Adverse Effect.
(d) SOLVENCY. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Borrower as of the
Closing Date, in form and substance satisfactory to the Administrative
Agent, regarding the Solvency of the Borrower.
(e) FEES. Any fees required to be paid on or before the Closing Date
shall have been paid.
(f) ATTORNEY COSTS. The Borrower shall have paid all Attorney Costs of
the Administrative Agent to the extent invoiced prior to or on the Closing
Date, PLUS such additional amounts of Attorney Costs as shall constitute
its reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and
the Administrative Agent).
(g) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have
received evidence, in form and substance satisfactory to the Administrative
Agent, that (i) the Existing Credit Agreement has been, or concurrently
with the Closing Date is being, terminated and all obligations of the
Borrower and its Subsidiaries and any of their respective Affiliates under
such Existing Credit Agreement shall be fully satisfied and (ii) all Liens
securing obligations under the Existing Credit Agreement have been, or
concurrently with the Closing Date are being, completely and irrevocably
released.
(h) INTENTIONALLY OMITTED.
(i) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Borrower contained in ARTICLE VI or any other Loan
Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on
and as of the Closing Date.
(j) NO MATERIAL ADVERSE CHANGE. There shall not have occurred a
material adverse change (x) in the business, assets, properties,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries, taken as a
whole, since December 31, 2004 or (y) in the facts and information
regarding such entities as represented to date.
(k) LITIGATION. As of the Closing Date, there shall be no action,
suit, investigation or proceeding, pending or, to the knowledge of the
Borrower, threatened in any court or before any Governmental Authority (i)
with respect to this Agreement or any other Loan Document or (ii) that
could reasonably be expected to have a Material Adverse Effect.
(l) NO DEFAULT. No Default shall exist and be continuing as of the
Closing Date.
(m) OTHER. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender, including, but not limited to, information regarding litigation,
tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Consolidated Parties.
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS.
The obligation of each Lender to honor any Request for Credit Extension is
subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
ARTICLE VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this
SECTION 5.02, the representations and warranties contained in subsections
(a) and (b) of SECTION 6.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of
SECTION 7.01.
(b) No Default shall exist or would result from such proposed Credit
Extension.
(c) There shall not have been commenced against any Consolidated Party
an involuntary case under any applicable Debtor Relief Law, now or
hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs,
and such involuntary case or other case, proceeding or other action shall
remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in SECTIONS
5.02(a), (b) and (c) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
6.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each of the Borrower and its Significant Subsidiaries (a) is duly organized
or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations, consents
and approvals to (i) own its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents, if any, to which
it is a party and (c) is duly qualified and is licensed and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license; except in each case referred to in clause (b)(i) or (c), to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
6.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by the Borrower of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or result in or
require the creation of any Lien under, (i) any Contractual Obligation to which
such Person is a party or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate in any material respect any applicable Law
(including, without limitation, Regulation U or Regulation X issued by the FRB).
6.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, the Borrower of this Agreement or any other Loan
Document, except for consents, authorizations, notices and filings described in
SCHEDULE 6.03, all of which have been obtained or made and which are in full
force and effect or have the status described in such SCHEDULE 6.03, all of
which have been obtained or made and which are in full force and effect or are
to be made by the Administrative Agent upon the occurrence of the Closing Date.
6.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by the Borrower that is
party thereto. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower that is party thereto in accordance
with its terms except as enforceability may be limited by applicable Debtor
Relief Laws and by general equitable principles (whether enforcement is sought
by proceedings in equity or at law).
6.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Consolidated Parties as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Consolidated Parties as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Consolidated
Parties dated March 31, 2005, and the related consolidated statements of income
or operations, shareholders' equity and cash flows for the fiscal quarter ended
on that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Consolidated
Parties as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.
(c) Except with respect to the Equiserve Disposition and the CSC Share
Exchange, during the period from December 31, 2004 to and including the Closing
Date, there has been no sale, transfer or other disposition by any Consolidated
Party of any material part of the business or Property of the Consolidated
Parties, taken as a whole, and no purchase or other acquisition by any of them
of any business or property (including any Capital Stock of any other Person)
material in relation to the consolidated financial condition of the Consolidated
Parties, taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.
(d) The financial statements delivered pursuant to SECTION 7.01(a) and (b)
have been prepared in accordance with GAAP (except as may otherwise be permitted
under SECTION 7.01(a) and (b)) and present fairly (on the basis disclosed in the
footnotes to such financial statements) the consolidated financial condition,
results of operations and cash flows of the Consolidated Parties as of such date
and for such periods.
(e) Since the later of (i) the date of the Audited Financial Statements and
(ii) the date of the most recently delivered financial statements delivered
pursuant to SECTION 7.01(a), there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.
6.06 LITIGATION.
There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower after due and diligent investigation, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against any Consolidated Party or against any of its properties
or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or (b)
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
6.07 NO DEFAULT.
No Consolidated Party is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
6.08 OWNERSHIP OF PROPERTY; LIENS.
The Borrower and its Significant Subsidiaries have good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The property of the Borrower and
its Significant Subsidiaries is subject to no Liens, other than Permitted Liens.
6.09 ENVIRONMENTAL COMPLIANCE.
Except in each case as where the existence and/or occurrence of any of the
following could not reasonably be expected to have a Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, there
is no violation of any Environmental Law with respect to the Real
Properties or the Businesses, and there are no conditions relating to the
Real Properties or the Businesses that could give rise to liability under
any applicable Environmental Laws.
(b) None of the Real Properties contains, or to the Borrower's
knowledge has previously contained, any Hazardous Materials at, on or under
the Real Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Real Properties or the Businesses, nor does any
Responsible Officer of the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from
the Real Properties, or generated, treated, stored or disposed of at, on or
under any of the Real Properties or any other location, in each case by or
on behalf of any Consolidated Party in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Responsible Officers of the
Borrower, threatened, under any Environmental Law to which any Consolidated
Party is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Consolidated Parties, the Real
Properties or the Businesses.
(f) There has been no release, or threat of release, of Hazardous
Materials at or from the Real Properties, or arising from or related to the
operations (including, without limitation, disposal) of any Consolidated
Party in connection with the Real Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.10 INSURANCE.
The properties of the Borrower and its Significant Subsidiaries are insured
with financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
6.11 TAXES.
The Consolidated Parties have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
6.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto or the Plan is
entitled to reliance on the opinion letter issued to the prototype sponsor by
the IRS and, to the best knowledge of the Borrower, nothing has occurred which
would prevent, or cause the loss of, such qualification. The Borrower and each
ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules by the Borrower or any ERISA Affiliate or, to the
knowledge of the Borrower, by any other Person with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
6.13 CAPITAL STRUCTURE/SUBSIDIARIES.
The corporate capital and ownership structure of the Subsidiaries of the
Borrower as of the Closing Date is as described in SCHEDULE 6.13(a). Set forth
on SCHEDULE 6.13(b) is a complete and accurate list as of the Closing Date with
respect to each of the direct and indirect Subsidiaries of the Borrower of (i)
jurisdiction of incorporation and (ii) ownership percentage owned (directly or
indirectly) by the Consolidated Parties. The outstanding Capital Stock of all
such Persons is validly issued, fully paid and non-assessable and is owned by
the Consolidated Parties, directly or indirectly, in the manner set forth on
SCHEDULE 6.13(b), free and clear of all Liens (other than Permitted Liens).
6.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) (i) Neither the Borrower nor any Significant Subsidiary (excluding West
Side and its Subsidiaries, Equiserve, Inc. and its Subsidiaries and Vermont
Western Assurance, Inc. and its Subsidiaries) is engaged nor will engage
principally or as one of its material activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB).
(ii) Neither the Borrower nor any Subsidiary is engaged nor will engage
principally or as one of its material activities in the business of extending
credit to others for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the FRB). No part of the proceeds of any
of the Loans or Letters of Credit will be used for purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB).
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940 or (iii) subject
to regulation under any other Law which limits its ability to incur
Indebtedness.
6.15 DISCLOSURE.
The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it (other than
general market, economic and industry conditions), that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
6.16 COMPLIANCE WITH LAWS.
Each Consolidated 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.
6.17 INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all material
trademarks, service marks, trade names, trade dress, patents, copyrights,
technology, know-how and processes (the "INTELLECTUAL PROPERTY") necessary for
each of them to conduct its business as currently conducted, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging or
questioning the use of the Intellectual Property or the validity or
effectiveness of the Intellectual Property, nor does the Borrower know of any
such claim, and, to the knowledge of the Responsible Officers of the Borrower,
the use of the Intellectual Property by any Consolidated Party or the granting
of a right or a license in respect of the Intellectual Property from any
Consolidated Party does not infringe on the rights of any Person, except for
such claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
6.18 SOLVENCY.
The Consolidated Parties are Solvent on a consolidated basis and the
Borrower is Solvent on an individual basis, including after giving effect to any
requested Borrowings or L/C Credit Extensions.
6.19 INVESTMENTS.
All Investments of each Consolidated Party are Permitted Investments.
6.20 BROKERS' FEES.
Except as may be set forth in the Fee Letters, no Consolidated Party has
any obligation to any Person in respect of any finder's, broker's, investment
banking or other similar fee in connection with any of the transactions
contemplated under the Loan Documents.
6.21 LABOR MATTERS.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of a Consolidated Party as of the Closing Date and none
of the Consolidated Parties has suffered any strikes, walkouts, work stoppages
or other material labor difficulty within the last five years.
6.22 NATURE OF BUSINESS.
Except with respect to the business acquired as part of the CSC Share
Exchange, as of the Closing Date, the Consolidated Parties are engaged in the
businesses described in the Borrower's December 31, 2004 10-K filing with the
SEC and businesses reasonably related thereto.
6.23 REPRESENTATIONS AND WARRANTIES FROM OTHER LOAN DOCUMENTS.
Each of the representations and warranties made by the Borrower in any of
the other Loan Documents is true and correct in all material respects.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder on any Loan or
other Obligation hereunder shall not be Fully Satisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in SECTIONS 7.01, 7.02,
7.03, 7.11, 7.12 and 7.13) cause each Subsidiary or Significant Subsidiary, as
applicable, to:
7.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent, in form and detail satisfactory to the
Administrative Agent:
(a) as soon as available, but in any event within the earlier of (i)
the 105th day after the end of each fiscal year of the Borrower and (ii)
the day that is five (5) Business Days after the date the Borrower's annual
report on Form 10-K is required to be filed with the SEC (including any
extensions of such date granted by the SEC or automatically effective upon
the filing of a notice with the SEC), a consolidated balance sheet of the
Consolidated Parties as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by (i) a report
and opinion of a Registered Public Accounting Firm 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 applicable Securities Laws and shall not be subject to any
"going concern" or like qualification, exception, assumption or explanatory
language or any qualification, exception, assumption or explanatory
language as to the scope of such audit and (ii) an attestation report of
such Registered Public Accounting Firm as to the Borrower's internal
controls pursuant to Section 404 of Sarbanes-Oxley; and
(b) as soon as available, but in any event within the earlier of (i)
the 60th day after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower and (ii) the day that is five (5) Business
Days after the date the Borrower's quarterly report on Form 10-Q is
required to be filed with the SEC (including any extensions of such date
granted by the SEC or automatically effective upon the filing of a notice
with the SEC), a consolidated balance sheet of the Consolidated Parties as
at the end of such fiscal quarter, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting
the financial condition, results of operations, shareholders' equity and
cash flows of the Consolidated Parties in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.
7.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent, in form and detail satisfactory to the
Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in SECTION 7.01(a), a certificate of its independent certified
public accountants certifying
such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Default under the
financial covenants set forth herein or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in SECTIONS 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(c) [intentionally omitted];
(d) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee
of the board of directors) of the Borrower by independent accountants in
connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;
(e) promptly after the same are available, (i) copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of
the Securities Exchange Act of 1934 or to a holder of any Indebtedness owed
by any Consolidated Party in its capacity as such a holder and not
otherwise required to be delivered to the Administrative Agent pursuant
hereto (other than such reports which are publicly available) and (ii) upon
the request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection Agency,
or any state or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration, or any state
or local agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety matters;
(f) [intentionally omitted]; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to SECTION 7.01(a) or (b) or
SECTION 7.02(e)(i) 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 on SCHEDULE 11.02; or (ii) on which such documents
are posted on the Borrower's behalf on IntraLinks/IntraAgency or another
relevant website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); 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 (which
may be by facsimile or electronic mail) the Administrative Agent and each Lender
of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (I.E., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
SECTION 7.02(b) to the Administrative Agent and each of the Lenders. 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 Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Arranger 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 not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (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 Arranger
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." Notwithstanding the foregoing, the Borrower shall be under no
obligation to mark any Borrower Materials "PUBLIC."
7.03 NOTICES AND INFORMATION.
(a) Promptly, and in any event within three Business Days after knowledge
thereof by a Responsible Officer, notify the Administrative Agent of the
occurrence of any Default and the nature thereof.
(b) Promptly, and in any event within three Business Days after knowledge
thereof by a Responsible Officer of the Borrower or Subsidiary, as the case may
be, notify the Administrative Agent and each Lender of any matter that has
resulted or could reasonably be expected to result in a Material Adverse Effect,
including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary
and any Governmental Authority; or (iii) the commencement of, or any material
development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws, in each case to the extent the
same could reasonably be expected to have a Material Adverse Effect.
(c) Promptly notify the Administrative Agent and each Lender of the
occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.
(e) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in SECTION 6.09 to be untrue in any material respect, the Borrower
will furnish or cause to be furnished to the Administrative Agent, at the
Borrower's expense, a report of an environmental assessment of reasonable scope,
form and depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative Agent as
to the nature and extent of the presence of any Hazardous Materials on any Real
Properties and as to the compliance by any Consolidated Party with Environmental
Laws at such Real Properties. If the Borrower fails to deliver such an
environmental report within seventy-five (75) days after receipt of such written
request then the Administrative Agent may arrange for same, and the Consolidated
Parties hereby grant to the Administrative Agent and its representatives access
to the Real Properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable cost
of any assessment arranged for by the Administrative Agent pursuant to this
provision will be payable by the Borrower on demand.
(f) No later than five (5) days after a Responsible Officer obtains
knowledge of any such issuance of change, give notice to the Administrative
Agent (by telephone, followed promptly by written notice transmitted by
facsimile with a hand copy sent promptly thereafter) of any issuance of change
(either expressly or pursuant to a letter from S&P or Moody's stating an
"implied" rating), in rating by S&P or Moody's in respect of the Borrower's
non-credit enhanced senior long-term debt (secured or unsecured), together with
details thereof, and of any announcement by S&P or Moody's that its rating in
respect of such non-credit enhanced senior long-term debt (secured or unsecured)
is "under review" or that any such debt rating has been placed on a "Credit
Watch List"(R) or "watch list" or that any similar action has been taken by S&P
or Moody's.
Each notice pursuant to this SECTION 7.03(a) through (f) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to SECTION 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
7.04 PAYMENT OF OBLIGATIONS.
With respect to Borrower and its Significant Subsidiaries, pay and
discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; 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; provided, that the Borrower or any Subsidiary may contest any item
described in clause (a) or (b) of this SECTION 7.04 in good faith and by proper
proceedings so long as reasonable reserves are maintained with respect thereto
to the extent required by GAAP.
7.05 PRESERVATION OF EXISTENCE, ETC.
With respect to Borrower and its Significant Subsidiaries (a) preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by SECTION 8.04 or 8.05; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business; and (c) preserve or renew all
of its material registered copyrights, patents, trademarks, trade names and
service marks.
7.06 MAINTENANCE OF PROPERTIES.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; and
(b) make all necessary repairs thereto and renewals and replacements
thereof; and
(c) use the standard of care typical in the industry in the operation and
maintenance of its facilities.
7.07 MAINTENANCE OF INSURANCE.
With respect to Borrower and its Significant Subsidiaries, maintain in full
force and effect insurance (including worker's compensation insurance, liability
insurance, property insurance and business interruption insurance) in such
amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry practice.
7.08 COMPLIANCE WITH LAWS AND MATERIAL CONTRACTUAL OBLIGATIONS.
Comply with the requirements of all Laws, all Contractual Obligations and
all orders, writs, injunctions and decrees applicable to it or to its business
or property, except in such instances in which (a) such requirement of Law,
Contractual Obligation or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
7.09 BOOKS AND RECORDS.
With respect to Borrower and its Significant Subsidiaries:
(a) maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 INSPECTION RIGHTS.
With respect to Borrower and its Significant Subsidiaries, permit
representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, all without expense to the Borrower and at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; PROVIDED,
HOWEVER, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice.
7.11 USE OF PROCEEDS.
Use the proceeds of the Credit Extensions for working capital, capital
expenditures, and other general corporate purposes not in contravention of any
Law or of any Loan Document.
7.12 INTENTIONALLY OMITTED.
7.13 SIGNIFICANT SUBSIDIARIES.
If, on any date after the Closing Date, the assets of Subsidiaries which as
of such date are not Significant Subsidiaries (each such entity, a
"NONSIGNIFICANT SUBSIDIARY") represent in the aggregate more than 25% of the
Consolidated Total Assets of the Consolidated Parties, then the Borrower shall
designate, by written notice to the Administrative Agent, one or more
Nonsignificant Subsidiaries as Significant Subsidiaries in order that the assets
of Nonsignificant Subsidiaries after such designation, do not in the aggregate
represent more than 25% of Consolidated Total Assets.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder or any Loan or
other Obligation hereunder shall not be Fully Satisfied, or any Letter of Credit
shall remain outstanding the Borrower shall not, nor shall it permit any
Subsidiary or Significant Subsidiary, as applicable, to, directly or indirectly:
8.01 LIENS.
Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the
following:
(a) [intentionally omitted];
(b) Liens existing on the Closing Date and set forth on SCHEDULE 8.01;
(c) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related
thereto has not expired or which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals and other
Liens imposed by law so long as such Liens secure claims incurred in the
ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and
by appropriate proceedings if adequate reserves are maintained to the
extent required by GAAP;
(e) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation or obligations under customer service contracts or (ii) to
secure the performance of letters of credit, bids, tenders, sales,
contracts, leases, statutory obligations, surety, appeal and performance
bonds and other similar obligations incurred in the ordinary course of
business, in each case not incurred in connection with the borrowing of
money or the payment of the deferred purchase price of property;
(f) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
real property, which in the aggregate are not substantial in amount and
which do not, in any case, materially detract from the value of any
material parcel of real property or impair the use thereof in the ordinary
conduct of business;
(g) Liens on the property or assets of any Subsidiary existing at the
time such Subsidiary becomes a Subsidiary of the Borrower and not incurred
in contemplation thereof, as long as the outstanding principal amount of
the Indebtedness secured thereby is not voluntarily increased by such
Subsidiary after the date such Subsidiary becomes a Subsidiary of the
Borrower;
(h) Liens on the property or assets of the Borrower or any Subsidiary
securing Indebtedness which is incurred to finance or refinance the
acquisition of such property or assets, PROVIDED that (i) each such Lien
shall be created substantially simultaneously with the acquisition of the
related property or assets; (ii) each such Lien does not at any time
encumber any property other than the related property or assets financed by
such Indebtedness and the proceeds thereof; (iii) the principal amount of
Indebtedness secured by each such Lien is not increased; and (iv) the
principal amount of Indebtedness secured by each such Lien shall at no time
exceed 100% of the original purchase price of such related property or
assets at the time acquired;
(i) Liens consisting of judgment or judicial attachment Liens,
PROVIDED that (i) the claims giving rise to such Liens are being diligently
contested in good faith by appropriate proceedings, (ii) reasonable
reserves for the obligations secured by such Liens have been established
and (iii) enforcement of such Liens has been stayed;
(j) any Lien on any specific fixed asset of any corporation existing
at the time such corporation is merged or consolidated with or into any
Borrower or a consolidated Subsidiary of the Borrower and not created in
contemplation of such event;
(k) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing paragraphs of this Section, provided that (i) such Indebtedness
is not secured by any additional assets, and (ii) the amount of such
Indebtedness (together with any accrued interest thereon and closing costs
relating thereto) secured by any such Lien is not materially increased;
(l) Liens on Marketable Securities and/or other securities and
property of West Side or a Wholly Owned Subsidiary of West Side to secure
obligations owing by West Side or a Wholly Owned Subsidiary of West Side
under the West Side Credit Agreement; PROVIDED that no more than
$50,000,000 of the principal amount of such obligations may be secured
pursuant to this SECTION 8.01(l), it being agreed that the principal amount
of such Indebtedness and other obligations under the West Side Credit
Agreement secured by such property may exceed $50,000,000 so long as any
Liens securing such obligations thereunder in excess of $50,000,000 are
otherwise permitted under this SECTION 8.01;
(m) any interest of title of a buyer in connection with, and Liens
arising from UCC financing statements relating to, a Permitted
Securitization Transaction;
(n) Liens arising pursuant to a Permitted Monetization Transaction;
(o) Liens securing Indebtedness permitted under SECTION 8.03(g);
(p) Liens not otherwise permitted by this SECTION 8.01 on real
property of the Borrower and its Subsidiaries securing Indebtedness in an
aggregate principal amount at any time outstanding not to exceed
$50,000,000; and
(q) Liens not otherwise permitted by this SECTION 8.01 securing
Indebtedness or other obligations in an aggregate principal amount at any
time outstanding that does not (when combined with the obligations secured
or evidenced by the Liens permitted under clause (m) above) exceed 10% of
Consolidated Net Tangible Assets.
8.02 INVESTMENTS.
Make any Investments, except:
(a) Investments in cash or Cash Equivalents;
(b) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms;
(c) Investments in the Borrower or in a Wholly-Owned Subsidiary of the
Borrower to the extent not otherwise prohibited hereunder;
(d) the Investments existing on the Closing Date and set forth on
SCHEDULE 8.02;
(e) any transactions permitted under SECTION 8.06;
(f) Investments consisting of Indebtedness permitted under SECTION
8.03 (other than SECTION 8.03(e));
(g) loans and advances to employees, officers and directors made in
the ordinary course of business not to exceed $5,000,000 at any time
outstanding; PROVIDED that all such advances must be in compliance with
applicable Laws, including, but not limited to, Sarbanes-Oxley;
(h) deposits for utilities, security deposits, leases and similar
prepaid expenses incurred in the ordinary course of business consistent
with past practices;
(i) Investments consisting of an Acquisition by the Borrower or any
Subsidiary of the Borrower, PROVIDED that
(i) SAME OR SIMILAR LINE OF BUSINESS. The Property acquired (or
the Property of the Person acquired) in such Acquisition is used or
useful in the Businesses (or any reasonable extensions or expansions
thereof);
(ii) NON-HOSTILE. In the case of an Acquisition of the Capital
Stock of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such
Acquisition;
(iii) PRO FORMA COMPLIANCE CERTIFICATE. For each Acquisition for
which consideration is in excess of $25,000,000, the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such Acquisition
on a Pro Forma Basis the Borrower would be in compliance with the
financial covenants set forth in SECTION 8.11 as of the most recent
fiscal quarter end with respect to which the Administrative Agent has
received the Required Financial Information.
(iv) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of
Default shall exist on the date of such Acquisition (including after
giving effect thereto).
(v) CONSOLIDATED SUBSIDIARY. In the case of an Acquisition of all
or any portion of the Capital Stock or other ownership interest in any
Person, such Person so acquired will be consolidated with the Borrower
in its financial statements upon consummation of the Acquisition.
(j) purchases of inventory, supplies, materials and equipment or
licenses, contributions or leases of intellectual property, in each case in
the ordinary course of business consistent with past practices;
(k) Investments made by Vermont Western Assurance, Inc. and its
Subsidiaries and West Side and its Subsidiaries in securities in the
ordinary course of business;
(l) Investments constituting, or directly related to, a Permitted
Monetization Transaction;
(m) Investments made by the Borrower or Equiserve, Inc. or any of
their respective Subsidiaries constituting "Transfer Agency Investments" as
reported in Borrower's quarterly (Form 10-Q) and annual (Form 10-K) filings
with the SEC in the ordinary course of business; and
(n) other Investments in the Businesses or a related line of business
in an amount not to exceed 10% of the Consolidated Net Tangible Assets in
the aggregate at any time outstanding.
8.03 SUBSIDIARY INDEBTEDNESS.
Permit any Subsidiary of the Borrower to create, incur, assume or suffer to
exist any Indebtedness, except:
(a) intentionally omitted;
(b) Indebtedness arising under this Agreement and the other Loan
Documents;
(c) Indebtedness of the Subsidiaries existing as of the Closing Date
as referenced on SCHEDULE 8.03 (and renewals, refinancings or extensions
thereof on terms and conditions no less favorable in any material respect
to such Person than such existing Indebtedness (excluding pricing, fees and
other similar provisions which may be subject to market terms) and in a
principal amount not in excess of the maximum amount permitted to be drawn
as of the date of such renewal, refinancing or extension);
(d) Capital Lease obligations and Indebtedness incurred (other than
Indebtedness set forth in SCHEDULE 8.03), in each case, to provide all or a
portion of the purchase price or costs of construction of an asset or, in
the case of a Sale and Leaseback Transaction, to finance the value of such
asset owned by the Borrower or any of its Subsidiaries, PROVIDED that (i)
such Indebtedness when incurred shall not exceed the purchase price or cost
of construction of such asset or, in the case of a Sale and Leaseback
Transaction, the fair market value of such asset and any transaction costs
directly related thereto, (ii) no such Indebtedness shall be refinanced for
a principal amount in excess of the principal balance outstanding thereon
(together with any accrued interest thereon and closing costs relating
thereto) at the time of such refinancing; and (iii) the aggregate principal
amount of all such Indebtedness shall not exceed $100,000,000 at any time
outstanding;
(e) unsecured intercompany Indebtedness (subject, however, to the
limitations of SECTION 8.02 in the case of the Borrower or a Subsidiary
extending the intercompany loan, advance or credit);
(f) Indebtedness and Obligations owing under Swap Contracts relating
to the Loans hereunder and other Swap Contracts entered into in order to
manage existing or anticipated interest rate, exchange rate or commodity
price risks and not for speculative purposes;
(g) secured Indebtedness not otherwise permitted by this SECTION 8.03
of the Subsidiaries in an aggregate amount outstanding at any time not to
exceed $100,000,000; PROVIDED the Liens in connection therewith are
permitted pursuant to SECTION 8.01(o);
(h) Guarantees of Indebtedness permitted under this SECTION 8.03;
(i) in connection with any Permitted Monetization Transaction, (A)
Indebtedness owing under any Monetization Hedging Agreement or any
Monetization Securities Agreement and (B) Indebtedness that is (i) secured
by solely by Monetized Marketable Securities that are subject to a
Monetization Hedging Agreement and (ii) otherwise non-recourse to the
Consolidated Parties (other than a Monetization SPE);
(j) in connection with any Permitted Securitization Transaction;
(k) Indebtedness under the West Side Credit Agreement in an aggregate
amount not to exceed $50,000,000 at any time outstanding, unless such
amount in excess of $50,000,000 is otherwise permitted pursuant to this
SECTION 8.03; and
(l) other Indebtedness of the Subsidiaries (which when combined with
the attributable principal amount of any Permitted Securitization
Transaction permitted under clause (j) above) which does not exceed 10% of
Consolidated Net Tangible Assets in the aggregate at any time outstanding.
8.04 FUNDAMENTAL CHANGES.
Except in connection with an Excluded Disposition, merge, dissolve,
liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person;
PROVIDED that, notwithstanding the foregoing provisions of this SECTION 8.04 but
subject to the terms of SECTIONS 7.12:
(a) the Borrower or any Subsidiary of the Borrower may merge with
another Person that is not the Borrower or a Subsidiary of the Borrower,
PROVIDED that (i) such other Person is organized under the law of the
United States or one of its states, (ii) in the case of any merger
involving the Borrower, the Borrower is the corporation surviving such
merger, (iii) in the case of any merger involving a Subsidiary of the
Borrower, the survivor is or will become a Subsidiary of the Borrower, (iv)
immediately prior to and after giving effect to such merger, no Default or
Event of Default exists or would exist, (iv) the Board of Directors of such
Person has approved such merger, and (v) such transaction is permitted
under SECTION 8.02;
(b) Any Subsidiary of the Borrower may merge with or into the Borrower
or any Wholly-Owned Subsidiary of the Borrower;
(c) Any Subsidiary of the Borrower may liquidate, wind-up or dissolve
itself into the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(d) any Monetization SPE may liquidate following the termination of
all Monetization Transactions to which it is a party.
8.05 DISPOSITIONS.
Other than an Excluded Disposition, make any Disposition unless with
respect to such Disposition (a) if such transaction is a Sale and Leaseback
Transaction, such transaction is not prohibited by the terms of SECTION 8.15,
(b) such transaction does not involve a sale or other disposition of receivables
other than receivables owned by or attributable to other Property concurrently
being disposed of in a Permitted Securitization Transaction, (c) no Default or
Event of Default shall exist on the date of, or shall result from, any such
transaction (including after giving effect to such transaction on a pro forma
basis) and (d) the aggregate amount of all such Dispositions (excluding any
assets sold or otherwise transferred in connection with a Permitted
Securitization Transaction, Excluded Dispositions and the Equiserve Disposition)
does not exceed (i) in any twelve-month period, 10% of Consolidated Net Tangible
Assets (measured as of the last day of the immediately preceding fiscal year for
which the Required Financial Information has been received by the Administrative
Agent) or (ii) during the term of this Agreement, 30% of Consolidated Net
Tangible Assets (measured as of December 31, 2004).
8.06 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments (directly or
indirectly) to the Borrower;
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of such
Person;
(c) the Borrower may make payments in connection with any Monetization
Transaction permitted hereunder;
(d) the Borrower may make cash payments to eliminate the "reload"
feature of certain options, so long as such cash payments do not exceed
$15,000,000 in the aggregate during the term of this Agreement;
(e) with respect to the period prior to June 30, 2006 only, the
Borrower may repurchase or redeem its Capital Stock utilizing 100% of the
after-tax net proceeds of the 250 Royall Sale and the State Street Sale and
the $224,000,000 in cash held by DST Health Solutions, Inc. in connection
with the CSC Share Exchange;
(f) with respect to the period prior to June 30, 2006 only, the
Borrower may repurchase or redeem its Capital Stock utilizing up to
$145,000,000 of after-tax net proceeds from the Equiserve Disposition; and
(g) in addition to the foregoing, the Borrower may make dividends and
repurchase or redeem its Capital Stock and/or settle forward equity
transactions in an aggregate amount in any fiscal year not to exceed 10.0%
of Consolidated Net Tangible Assets (measured as of the last day of the
immediately preceding fiscal year for which the Required Financial
Information has been received by the Administrative Agent); PROVIDED that
the limitation set forth in this clause shall not be decreased or otherwise
affected by the Borrower's repurchase of $107,472,386 worth of its Capital
Stock on June 8, 2005 in connection with the settlement of a forward equity
acquisition agreement between the Borrower and Citibank, N.A (the "CITIBANK
FORWARD").
8.07 CHANGE IN NATURE OF BUSINESS.
With respect to the Borrower and its Significant Subsidiaries, engage in
any material line of business substantially different from the Businesses on the
Closing Date or any business substantially related or incidental thereto.
8.08 TRANSACTIONS WITH AFFILIATES.
Directly or indirectly do any of the following, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are no less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate and except for (i) transactions
which are not material either individually or in the aggregate or (ii) loans or
advances to any Affiliate made by the Borrower or its Subsidiaries in an
aggregate amount not to exceed $50,000,000:
(a) make any loan or advance to, or purchase or assume any note or
other obligation to or from, any of its officers, directors, shareholders
or Affiliates, or to or from any member of the immediate family of any of
its officers, directors, shareholders or Affiliates, other than (i) loans,
advances or other transactions between the Borrower and its Subsidiaries
otherwise permitted under this Agreement, (ii) any other loan or advance or
assumption that would not cause the aggregate amount of all such loans and
advances and assumed notes and advances to exceed $500,000 and (iii) loans
or advances to a Monetization SPE in connection with a Permitted
Monetization Transaction; or
(b) enter into, or be a party to, any subcontract of any operations or
other transaction with any of its Affiliates.
8.09 BURDENSOME AGREEMENTS.
(a) The Borrower will not permit any Subsidiary to agree to, incur,
assume or suffer to exist any restriction, limitation or other encumbrance
(by covenant or otherwise) on the ability of such Subsidiary to make any
payment to the Borrower or any of its Subsidiaries (in the form of
dividends, intercompany advances or otherwise) or to transfer any of its
properties or assets to the Borrower or any of its Subsidiaries, except:
(i) Restrictions and limitations existing on the Closing Date and
described on SCHEDULE 8.09;
(ii) Restrictions and limitations applicable to a Subsidiary
existing at the time such Subsidiary becomes a Subsidiary of the
Borrower and not incurred in contemplation thereof, as long as no such
restriction or limitation is made more restrictive after the date such
Subsidiary becomes a Subsidiary of the Borrower;
(iii) Restrictions and limitations existing pursuant to this
Agreement;
(iv) Restrictions and limitations applicable to a Monetization
SPE in connection with a Permitted Monetization Transaction; and
(v) Other restrictions and limitations that are not material
either individually or in the aggregate.
(b) Enter into any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its Property in favor of
the Administrative Agent (for
the benefit of the Lenders) for the purpose of securing the Obligations,
whether now owned or hereafter acquired, or requiring the grant of any
security for any obligation if such Property is given as security for the
Obligations, except (i) any document or instrument governing Indebtedness
incurred pursuant to SECTION 8.03(d), PROVIDED that any such restriction
contained therein relates only to the asset or assets constructed, acquired
or financed in connection therewith, (ii) in connection with any Permitted
Lien or any document or instrument governing any Permitted Lien, PROVIDED
that any such restriction contained therein relates only to the asset or
assets subject to such Permitted Lien and (iii) pursuant to customary
restrictions and conditions contained in any agreement relating to the sale
of any Property permitted under SECTION 8.05, pending the consummation of
such sale.
8.10 USE OF PROCEEDS.
Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
8.11 FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage Ratio as
of the end of any fiscal quarter of the Borrower to be greater than the ratio
set forth below opposite such fiscal quarter:
-------------------------------------------------- -----------------------------------------------
Maximum Consolidated
FISCAL QUARTER ENDED LEVERAGE RATIO
-------------------------------------------------- -----------------------------------------------
Closing Date through and including December 31, 3.25 to 1.00
2005
-------------------------------------------------- -----------------------------------------------
March 31, 2006 and thereafter 3.00 to 1.00
-------------------------------------------------- -----------------------------------------------
(b) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at any time to be
less than the sum of $530,000,000, increased on a cumulative basis as of the end
of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending June 30, 2005 by an amount equal to 50% of Consolidated Net Income (to
the extent positive) for the fiscal quarter then ended PLUS 80% of the Net Cash
Proceeds of any Equity Issuances consummated in such fiscal quarter, then
decreased by an amount equal to (i) 100% of the cost of all shares of Capital
Stock of the Borrower repurchased by the Borrower pursuant to SECTION 8.06(e),
SECTION 8.06(f) and the Citibank Forward and (ii) fifty percent (50%) of the
cost of all other shares of Capital Stock of the Borrower repurchased by the
Borrower after March 31, 2005.
(c) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less
than 4.00 to 1.00.
8.12 PREPAYMENT OF OTHER INDEBTEDNESS, ETC.
Permit any Consolidated Party (x) to (i) make (or give any notice with
respect thereto) any tender offer for the Series A Debentures, or make (or give
any notice with respect thereto) any redemption or acquisition for value or
defeasance (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange with respect thereto and (ii)
make (or give any notice with respect thereto) any voluntary or optional payment
or prepayment of any Subordinated Indebtedness, or make (or give any notice with
respect thereto) any redemption or acquisition for value or defeasance
(including without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when due),
refund, refinance or exchange with respect thereto, and (y) if any Default or
Event of Default has occurred and is continuing or would be directly or
indirectly caused as a result thereof, after the issuance thereof, to (a) amend
or modify any of the terms of any Indebtedness of such Person (other than
Indebtedness arising under the Loan Documents) if such amendment or modification
would add or change any terms in a manner adverse in any material respect to
such Person or to the Lenders, or (b) shorten the final maturity or average life
to maturity thereof or require any payment thereon to be made sooner than
originally scheduled or increase the interest rate applicable thereto, or (c)
make (or give any notice with respect thereto) any voluntary or optional payment
or prepayment thereof, or make (or give any notice with respect thereto) any
redemption or acquisition for value or defeasance (including without limitation,
by way of depositing money or securities with the trustee with respect thereto
before due for the purpose of paying when due), refund, refinance or exchange
with respect thereto.
8.13 ORGANIZATION DOCUMENTS; FISCAL YEAR.
Permit any Consolidated Party to (a) amend, modify or change its
Organization Documents in a manner adverse to the Lenders, (b) change its fiscal
year end in order to avoid a Default or an Event of Default or if a Material
Adverse Effect would result therefrom or (c) make any material change in its
accounting treatment and reporting practices except as permitted by GAAP.
8.14 LIMITATIONS ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY-OWNED
SUBSIDIARIES.
(a) Permit any of its Subsidiaries (other than any Nonsignificant
Subsidiaries) to, sell, lease, transfer or otherwise dispose of the Capital
Stock or any other equity interest of any Wholly-Owned Subsidiary to any Person
(other than the Borrower or any Wholly-Owned Subsidiary) unless (i) such sale,
lease, transfer or other disposition is of all of the Capital Stock and other
equity interests of such Wholly-Owned Subsidiary and (ii) such sale, lease,
transfer or other disposition is permitted under SECTION 8.05.
(b) Permit any of its Subsidiaries to, permit any Wholly-Owned Subsidiary
to issue any Capital Stock or any other equity interest of such Wholly-Owned
Subsidiary to any Person (other than the Borrower or any Wholly-Owned
Subsidiary) except for directors' qualifying shares, or, in the case of any
Subsidiary which is not organized or created under the laws of the United States
of America or any political subdivision thereof, such nominal ownership
interests which are required
to be held by third parties under the laws of the foreign jurisdiction (under
which such Subsidiary was incorporated or organized).
(c) Permit, create, incur or assume or suffer to exist any Lien on any
Capital Stock of any Subsidiary of the Borrower, except for Permitted Liens.
8.15 SALE LEASEBACKS.
Permit any of the Consolidated Parties (other than any Nonsignificant
Subsidiary) to, enter into any Sale and Leaseback Transaction with a Person
other than the Borrower or its Subsidiary, except (a) for any such transaction
permitted pursuant to SECTION 8.03(D) and (b) in connection with a lease for a
temporary period during or at the end of which it is intended that the use by
the Borrower or its Subsidiary of such property or assets will be discontinued.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) NON-PAYMENT. The Borrower fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan or any L/C Obligation,
or (ii) within three Business Days after the earlier of a Responsible
Officer becoming aware of such default or written notice of such default
thereof has been given to the Borrower by the Administrative Agent, any
interest on any Loan or on any L/C Obligation, any commitment or other fee
due hereunder or any other amount payable hereunder or under any other Loan
Document; or
(b) SPECIFIC COVENANTS. (i) The Borrower fails to perform or observe
any term, covenant or agreement contained in any of SECTIONS 7.03(a),
7.05(a), 7.11, or 7.12 or ARTICLE VIII or (ii) the Borrower fails to
perform or observe any other term, covenant or agreement contained in
SECTIONS 7.01, 7.02, 7.03, 7.05 or 7.10, and such default shall continue
unremedied for five Business Days; or
(c) OTHER DEFAULTS. The Borrower fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days after the earlier of a Responsible
Officer becoming aware of such default or written notice of such default
thereof has been given to the Borrower by the Administrative Agent; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower herein, in any other Loan Document, or in any document
delivered in connection
herewith or therewith shall be incorrect or misleading in any material
respect when made or deemed made; or
(e) CROSS-DEFAULT. (i) The Borrower or any Subsidiary (A) fails to
perform or observe (beyond the applicable grace period with respect
thereto, if any) any Contractual Obligation if such failure could
reasonably be expected to have a Material Adverse Effect, (B) fails to make
any payment (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the
Threshold Amount, continuing beyond any applicable grace, notice and cure
periods, or (C) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in
any instrument or agreement evidencing, securing or relating thereto,
continuing beyond any applicable grace, notice and cure periods, or any
other event occurs, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness or the beneficiary
or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount and such amount is not
paid within 10 Business Days of the due date thereof; or
(f) INSOLVENCY PROCEEDINGS, ETC. The Borrower or any of its
Significant Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any
such proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) The Borrower or any
Significant Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released,
vacated or fully bonded within 45 days after its issue or levy; or
(h) JUDGMENTS. There is entered against the Borrower or any Subsidiary
(i) any one or more final judgments or orders for the payment of money in
an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, and (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension
Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of the Threshold Amount; or
(j) INVALIDITY OF LOAN DOCUMENTS. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or the Borrower contests in any manner the
validity or enforceability of any Loan Document; or the Borrower denies
that it has any or further liability or obligation under any Loan Document,
or purports to revoke, terminate or rescind any Loan Document; or
(k) CHANGE OF CONTROL. There occurs any Change of Control.
9.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, upon prior notice to the
Borrower (to the extent the Administrative Agent is able, on commercially
reasonable terms, to give such prior notice), the Administrative Agent shall, at
the request of, or may, with the consent of, the Required Lenders, take any or
all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under
any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code
of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the Commitments shall automatically be cancelled,
the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without
further act of the Administrative Agent or any Lender.
9.03 APPLICATION OF FUNDS.
After the acceleration of the Obligations as provided for in SECTION
9.02(b) (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to SECTION 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under ARTICLE III) payable to the Administrative Agent in its capacity
as such;
SECOND, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders (including Attorney Costs and amounts
payable under ARTICLE III), ratably among them in proportion to the respective
amounts described in this clause SECOND payable to them;
THIRD, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings,
ratably among the Lenders in proportion to the respective amounts described in
this clause THIRD payable to them;
FOURTH, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and Swap Contracts between the Borrower
and any Lender or Affiliate of any Lender and to Cash Collateralize the undrawn
amounts of Letters of Credit, ratably among the Lenders in proportion to the
respective amounts described in this clause FOURTH held by them;
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to SECTION 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause FOURTH above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 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 the Borrower shall not have rights as a third party beneficiary of
any of such provisions.
10.02 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.
10.03 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 11.01 and 9.02) 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 V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
10.04 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.
10.05 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.
10.06 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 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 11.04
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 arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
10.07 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.
10.08 NO OTHER DUTIES, ETC.
Anything herein to the contrary notwithstanding, none of the Book Managers,
Arrangers or the Syndication Agent 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.
10.09 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 the Borrower, 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 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender 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 2.09
and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender 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.
ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower, 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) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 9.02) without the written consent
of such Lender (it being understood and agreed that a waiver of any
condition precedent set forth in SECTION 5.02 or of any Default or Event of
Default or mandatory reduction in the Commitments shall not constitute a
change in the terms of any Commitment of any Lender);
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or 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 (i) amend the
definition of "Default Rate" or to waive any obligation of the Borrower to
pay interest at the Default Rate or (ii) amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C
Borrowing or to reduce any fee payable hereunder;
(d) change SECTION 2.13 or SECTION 9.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender;
(e) change any provision of this SECTION 11.01 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;
(f) except as the result of or in connection with a dissolution,
merger or disposition of the Borrower not prohibited by SECTION 8.04 or
SECTION 8.05, release the Borrower from its obligations under the Loan
Documents without the written consent of each Lender;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) each Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the respective parties thereto.
For the avoidance of doubt and notwithstanding any provision to the
contrary contained in this SECTION 11.01, this Agreement may be amended (or
amended and restated) with the written consent of the Borrower and the Required
Lenders (x) to increase the Aggregate Revolving Commitments of the Lenders, (y)
to add one or more additional tranches of Loans to the Agreement and to permit
the extensions of credit from time to time outstanding thereunder and the
accrued interest and fees in respect thereof (collectively, the "ADDITIONAL
EXTENSIONS OF CREDIT") to share ratably in the benefits of this Agreement and
other Loan Documents with the other then outstanding Obligations and (z) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders; PROVIDED, HOWEVER, that no such amendment
shall permit the Additional Extensions of Credit to share ratably with or with
preference to the Revolving Loans (and participations in any Swing Line Loans
and any L/C
Obligations) without the consent of the Lenders holding a majority of the
outstanding Revolving Loans (and participations in any Swing Line Loans and any
L/C Obligations).
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; PROVIDED that such Defaulting
Lender shall be treated ratably with the other Lenders under the terms of such
amendment, waiver or consent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow the
Borrower to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.
11.02 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 on Schedule 11.02;
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) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Borrower, any Lender, the L/C Issuer
or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower's or
the Administrative Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).
(d) 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. In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.
(e) 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 Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify 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.
11.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 ATTORNEY COSTS, EXPENSES AND TAXES.
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agent and each Lender for all
reasonable costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include, to the extent applicable hereunder, all search, filing, recording,
title insurance and appraisal charges and fees and taxes related thereto, and
other out-of-pocket expenses incurred by the Administrative Agent and the cost
of independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this SECTION 11.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Revolving
Commitments and repayment of all Obligations.
11.05 INDEMNIFICATION BY THE BORROWER.
Whether or not the transactions contemplated hereby are consummated, the
Borrower shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the "INDEMNITEES") from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (c) any actual or alleged presence or release of Hazardous Materials
on or from any property currently or formerly owned or operated by the Borrower
or any Subsidiary, or any Environmental Liability related in any way to the
Borrower or any Subsidiary, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES"); 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 against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent jurisdiction. So long
as an Indemnitee has used security procedures related thereto required by its
corporate policies, such Indemnitee shall not be liable for any damages arising
from the use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in connection with
this Agreement, unless arising from disclosure by such Indemnitee after receipt
and in breach of its confidentiality obligations set forth in SECTION 11.08. All
amounts due under this SECTION 11.05 shall be payable within ten Business Days
after demand therefor.
Upon receipt by an Indemnitee of actual notice of an action or proceeding
against such Indemnitee with respect to which indemnity may be sought under this
Agreement, such Indemnitee shall promptly notify the Borrower in writing;
PROVIDED further that failure to notify the Borrower shall not relieve the
Borrower from any liability which it may have on account of this indemnity or
otherwise, except to the extent the Borrower shall have been materially
prejudiced by such failure. The Borrower shall, at its option or if requested,
assume the defense of any such action or proceeding, including the employment of
counsel reasonably acceptable to the applicable Indemnitee. Any Indemnitee shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnitee, unless: (i) the Borrower has failed
with reasonable promptness to assume the defense and employ counsel or (ii) the
named parties to any such action or proceeding (including any impleaded parties)
include such Indemnitee, and such Indemnitee shall have been advised by counsel
that there may be one or more legal defenses available to it which are different
from or in addition to those available to the Borrower and which it cannot
assert, in a manner reasonably acceptable to such Indemnitee, on behalf of or
while assuming the defense of such Indemnitee; PROVIDED that the Borrower shall
not in such event be responsible hereunder for the fees and expenses of more
than one firm of separate counsel in connection with any action or proceeding in
the same jurisdiction during the same time period, or for additional local
counsel. Notwithstanding the foregoing, the Borrower shall not be liable for any
settlement of any action effected without its written consent (such consent not
to be unreasonably withheld). In addition, the Borrower will not, without prior
written consent of such Indemnitee, settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened
action or proceeding in respect of which indemnification may be sought hereunder
(whether or not the Borrower is a party thereto) unless such settlement,
compromise, consent or termination includes an unconditional release of each
Indemnitee from all losses, claims, damages, liabilities and expenses arising
out of such action or proceeding. To the extent permitted by applicable law, the
Borrower, the Lenders and the Administrative Agent shall not assert, and hereby
waive, any claim against any other party hereto, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement, instrument or transactions contemplated hereby, any
Loan or the use of the proceeds thereof
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Revolving Commitments and the repayment, satisfaction or discharge of
all Obligations.
11.06 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of the Borrower is made to
the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, PLUS interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
11.07 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 the Borrower may
not 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 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 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
Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the 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); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Swing
Line Loans;
(iii) any assignment of a 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 in the amount, if any, required as set forth
in Schedule 11.07 payable by the assignor or assignee, 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 3.01, 3.04, 3.05, 11.04 and 11.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. 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 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 11.01 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 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of SECTION 11.09 as though it were a Lender, provided
such Participant agrees to be subject to SECTION 2.13 as though it were a
Lender.
(e) LIMITATIONS UPON PARTICIPANT RIGHTS. A Participant shall not be
entitled to receive any greater payment under SECTION 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of SECTION 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with SECTION 11.15 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 Committed 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 Committed Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Committed Loan, the Granting Lender shall be obligated to
make such Committed 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
2.12(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 3.04), (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 Committed Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Committed 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 with the
payment of a processing fee in the amount of $2,500, assign all or any portion
of its right to receive payment with respect to any Committed Loan to the
Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Committed 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 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties 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 Committed Loans or
fund risk participations in Unreimbursed Amounts pursuant to SECTION 2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Committed Loans or
fund risk
participations in outstanding Swing Line Loans pursuant to SECTION 2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (b) 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 arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.
11.08 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 and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Borrower; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization. In addition, the Administrative
Agent and the Lenders may disclose the existence of this Agreement and
information about this Agreement to market data collectors, similar service
providers to the lending industry, and service providers to the Administrative
Agent and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions.
For the purposes of this Section, "INFORMATION" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis prior to disclosure by the Borrower. 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. Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Borrower, the Administrative Agent,
each Lender and the respective Affiliates of each of the foregoing (and the
respective partners, directors, officers, employees, agents, advisors and other
representatives of each of the foregoing and their Affiliates) may disclose to
any and all Persons, without limitation
of any kind (a) any information with respect to the U.S. federal and state
income tax treatment of the transactions contemplated hereby and any facts that
may be relevant to understanding such tax treatment, which facts shall not
include for this purpose the names of the parties or any other Person named
herein, or information that would permit identification of the parties or such
other Persons, or any pricing terms or other nonpublic business or financial
information that is unrelated to such tax treatment or facts that are provided
to any of the Persons referred to above.
Each of the Administrative Agent, the Lenders and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
11.09 SET-OFF.
In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default (and after the
Borrower has received notice thereof from the Administrative Agent), each Lender
is authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Borrower, and the Borrower hereby grants a security interest in
all such deposits and indebtedness to the Administrative Agent for the benefit
of the Administrative Agent and the Lenders, against any and all Obligations
owing to such Lender hereunder or under any other Loan Document, now or
hereafter existing, irrespective of whether or not the Administrative Agent or
such Lender shall have made demand under this Agreement or any other Loan
Document and although such Obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such set-off and application.
11.10 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the
"MAXIMUM RATE"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
11.12 INTEGRATION.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; PROVIDED that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent, the Lenders or the Borrower in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
11.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.14 SEVERABILITY.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
11.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "FOREIGN LENDER")
shall deliver to the Administrative Agent and the Borrower, prior to
receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on
all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by
the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Administrative Agent and the Borrower
such additional duly completed and signed copies of one of such forms
(or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the
Administrative Agent of any available exemption from or reduction of,
United States withholding taxes in respect of all payments to be made
to such Foreign Lender by the Borrower pursuant to this Agreement, (B)
promptly notify the Administrative Agent and the Borrower of any
change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of
applicable Laws that the Borrower make any deduction or withholding
for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent and the Borrower on the date when
such Foreign Lender ceases to act for its own account with respect to
any portion of any such sums paid or payable, and at such other times
as may be necessary in the determination of the Administrative Agent
(in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by
such Lender as set forth above, to establish the portion of any such
sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor
thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such
sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under SECTION 3.01 (a) with respect to
any Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this SECTION 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing
provisions of this SECTION 11.15(a); PROVIDED that if such Lender
shall have satisfied the requirement of this SECTION 11.15(a)
on the date such Lender became a Lender or ceased to act for its own
account with respect to any payment under any of the Loan Documents,
nothing in this SECTION 11.15(a) shall relieve the Borrower of its
obligation to pay any amounts pursuant to SECTION 3.01 in the event
that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender
or other Person for the account of which such Lender receives any sums
payable under any of the Loan Documents is not subject to withholding
or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrower is not
required to pay additional amounts under this SECTION 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then
the Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable back-up withholding tax
imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any
tax or other amount from payments made to or for the account of any Lender,
such Lender shall indemnify the Administrative Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, and costs
and expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section shall survive the termination
of the Aggregate Revolving Commitments, repayment of all other Obligations
hereunder and the resignation of the Administrative Agent.
11.16 REPLACEMENT OF LENDERS.
If (i) any Lender requests compensation under SECTION 3.04, (ii) 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 3.01,
(iii) a Lender (a "NON-CONSENTING LENDER") does not consent to a proposed
change, waiver, discharge or termination with respect to any Loan Document that
has been approved by the Required Lenders as provided in SECTION 11.01 but
requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) and, or (iv) 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 11.06), 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 11.06(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 3.05)
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 3.04 or payments required to be made pursuant to
SECTION 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of any such assignment resulting from a Non-Consenting
Lender's failure to consent to a proposed change, waiver, discharge or
termination with respect to any Loan Document, the applicable replacement
bank, financial institution or Fund consents to the proposed change,
waiver, discharge or termination; PROVIDED that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption
shall not impair the validity of the removal of such Non-Consenting Lender
and the mandatory assignment of such Non-Consenting Lender's Commitments
and outstanding Loans and participations in L/C Obligations and Swing Line
Loans pursuant to this SECTION 11.13 shall nevertheless be effective
without the execution by such Non-Consenting Lender of an Assignment and
Assumption.
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.
11.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
11.18 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.19 PATRIOT ACT.
Each Lender 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 "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 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: DST SYSTEMS, INC.
By: /s/ Kenneth V. Hager
-----------------------------------
Name: Kenneth V. Hager
Title: Vice President, CFO and Treasurer
ADMINISTRATIVE AGENT
AND LENDER: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By: /s/ Mollie S. Canup
-----------------------------------
Name: Mollie S. Canup
Title: Vice President
BANK OF AMERICA, N.A.,
in its capacity as a Lender, L/C Issuer
and Swing Line Lender
By: /s/ W. Thomas Barnett
------------------------------------
Name: W. Thomas Barnett
Title: Senior Vice President
CITIBANK, N.A.,
By: /s/ Matthew Nicholls
------------------------------------
Name: Matthew Nicholls
Title: Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Martin Nay
------------------------------------
Name: Martin Nay
Title: Vice President
WELLS FARGO BANK, N.A.
By: /s/ Tammy R. Sturgis
------------------------------------
Name: Tammy R. Sturgis
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ G. Lee Wagner, Jr.
------------------------------------
Name: G. Lee Wagner, Jr.
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ David A. Buck
------------------------------------
Name: David A. Buck
Title: Senior Vice President
LLOYDS TSB BANK PLC
By: /s/ Deborah Carlson
------------------------------------
Name: Deborah Carlson
Title: VP & Manager - Business
Development C.B. C103
By: /s/ Paul Briamonte
------------------------------------
Name: Paul D. Briamonte
Title: Director - Project Finance (USA,
B374
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Michael E. Keating
------------------------------------
Name: Michael Keating
Title: Managing Director
MIZUHO CORPORATE BANK (USA)
By: /s/ Bertrano Tang
------------------------------------
Name: Bertrano Tang
Title: Senior Vice President
COMMERZBANK AG, New York and
Grand Cayman Branches
By: /s/ Hajo Neugartner
------------------------------------
Name: Hajo Neugartner
Title: Vice President
By: /s/ Albert Morrow
------------------------------------
Name: Albert Morrow
Title: Assistant Vice President
UMB BANK, N.A.
By: /s/ Douglas F. Page
------------------------------------
Name: Douglas Page
Title: Executive Vice President
COMMERCE BANK, N.A.
By: /s/ David C. Enslen
------------------------------------
Name: David C. Enslen
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Tsuguyuki Umene
------------------------------------
Name: Tsuguyuki Umene
Title: Deputy General Manager