Exhibit 10.28
$150,000,000 Revolving Credit
AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
Dated as of January 23, 2001
by and among
FEDERATED INVESTORS, INC.
and
THE BANKS SET FORTH HEREIN
and
PNC BANK, NATIONAL ASSOCIATION, as Agent
and
THE BANK OF NEW YORK, as Syndication Agent
1. CERTAIN DEFINITIONS....................................................1
1.1 Certain Definitions..............................................1
1.2 Construction....................................................16
1.3 Accounting Principles...........................................17
2. REVOLVING CREDIT AND SWING LOAN FACILITIES............................17
2.1 The Commitments.................................................17
2.2 Nature of the Banks' and the Borrower's Obligations.............18
2.3 Fees............................................................18
2.4 Permanent Reductions of Commitments.............................19
2.5 [Intentionally omitted].........................................19
2.6 Loan Requests...................................................19
2.7 Making Loans....................................................20
2.8 Borrowings to Repay Swing Loans.................................21
2.9 Notes...........................................................21
2.10 Letter of Credit Subfacility....................................21
2.11 Use of Proceeds.................................................25
2.12 Option of Borrower to Term-Out the Revolving Credit Loans upon
Revolving Credit Expiration Date................................25
2.13 Extension by Banks of the Revolving Credit Expiration Date......25
2.14 Release of Collateral...........................................27
3. [Intentionally Omitted]...............................................27
4. INTEREST RATES........................................................27
4.1 Interest Rate Options...........................................27
4.2 Euro-Rate Interest Periods......................................28
4.3 Interest After Default..........................................29
4.4 Euro-Rate Unascertainable.......................................29
4.5 Selection of Interest Rate Options..............................30
5. PAYMENTS..............................................................30
5.1 Payments........................................................30
5.2 Pro Rata Treatment of the Banks.................................31
5.3 Interest Payment Dates..........................................31
5.4 Voluntary Prepayments...........................................31
5.5 Additional Compensation in Certain Circumstances................33
5.6 Settlement Date Procedures......................................34
6. REPRESENTATIONS AND WARRANTIES........................................35
6.1 Representations and Warranties..................................35
6.2 Updates to Schedules............................................41
7. CONDITIONS OF LENDING.................................................41
7.1 Closing Date....................................................41
7.2 Each Additional Loan............................................44
8. COVENANTS.............................................................44
8.1 Affirmative Covenants...........................................44
8.2 Negative Covenants..............................................47
8.3 Reporting Requirements..........................................53
9. DEFAULT...............................................................56
9.1 Events of Default...............................................56
9.2 Consequences of Event of Default................................57
9.3 Notice of Sale..................................................59
10. THE AGENT.............................................................59
10.1 Appointment.....................................................59
10.2 Delegation of Duties............................................60
10.3 Nature of Duties; Independent Credit Investigation..............60
10.4 Actions in Discretion of the Agent; Instructions from the Banks.60
10.5 Reimbursement and Indemnification of the Agent by the Borrower..61
10.6 Exculpatory Provisions..........................................61
10.7 Reimbursement and Indemnification of the Agent by the Banks.....62
10.8 Reliance by the Agent...........................................62
10.9 Notice of Default...............................................62
10.10 Notices.........................................................62
10.11 PNC Bank, National Association and the Banks in Their Individual
Capacities......................................................63
10.12 Holders of Notes................................................63
10.13 Equalization of the Banks.......................................63
10.14 Successor Agent.................................................63
10.15 The Agent's Fee.................................................64
10.16 Calculations....................................................64
10.17 Beneficiaries...................................................64
11. MISCELLANEOUS.........................................................65
11.1 Modifications, Amendments or Waivers............................65
11.2 No Implied Waivers; Cumulative Remedies; Writing Required.......65
11.3 Reimbursement and Indemnification of the Banks by the Borrower;
Taxes...........................................................66
11.4 Holidays........................................................66
11.5 Funding by Branch, Subsidiary or Affiliate......................66
11.6 Notices.........................................................67
11.7 Severability....................................................68
11.8 Governing Law...................................................68
11.9 Prior Understanding.............................................68
11.10 Duration; Survival..............................................68
11.11 Successors and Assigns..........................................69
11.12 Confidentiality.................................................70
11.13 Counterparts....................................................71
11.14 The Agent's or the Bank's Consent...............................71
11.15 Exceptions......................................................71
11.16 Consent to Jurisdiction; Waiver of Jury Trial...................71
11.17 Limitation of Liability.........................................71
11.18 Tax Withholding Clause..........................................72
11.19 Syndication Agent...............................................72
SCHEDULES
Schedule 1.1(a) - Commitments of the Banks
Schedule 6.1(c) - Subsidiaries of the Borrower
Schedule 6.1(m) - Consents and Approvals
Schedule 6.1(s) - Insurance
Schedule 6.1(u) - Material Contracts
Schedule 8.2(e) - Existing Indebtedness and Liens
Schedule 8.2(h) - Loans and Investments
Schedule 11.6 - Notice Information
EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Security Agreement
Exhibit C - Form of Intercompany Subordination Agreement
Exhibit E - Form of Pledge Agreement
Exhibit F - Form of Revolving Credit Note
Exhibit G - Form of Swing Note
Exhibit H-1 - Form of Revolving Credit Loan Request
Exhibit H-2 - Form of Swing Loan Request
Exhibit J - Requirements of Opinion of Counsel
Exhibit K - Form of Opinion of Counsel (regarding New Subsidiaries)
Exhibit L - Form of Compliance Certificate
Exhibit M - Form of Confidentiality Agreement
73
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January 23,
2001, and is made by and among FEDERATED INVESTORS, INC., a Pennsylvania
corporation (the "BORROWER"), the BANKS (as hereinafter defined), PNC BANK,
NATIONAL ASSOCIATION in its capacity as agent for the Banks under this Agreement
(hereinafter referred to in such capacity as the "AGENT") and THE BANK OF NEW
YORK, as syndication agent (the "SYNDICATION AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower has requested the Agent and the Banks to amend and
restate the Senior Secured Credit Agreement, (the "EXISTING SENIOR CREDIT
AGREEMENT") dated as of January 31, 1996 among the Borrower, the Banks set forth
therein and the Agent, as amended, to provide to the Borrower a $150,000,000
revolving credit facility (the "REVOLVING CREDIT FACILITY"); and
WHEREAS, the Revolving Credit Facility shall be used for general
business purposes, including acquisitions; and
WHEREAS, the Agent and the Banks are willing to amend and restate the
Existing Senior Credit Agreement upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, amend and restate the Existing Senior Credit Agreement as follows:
1. CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS.
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In addition to words and terms defined elsewhere in this Agreement,
the following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
AFFILIATE as to any person shall mean any other person (i) which
directly or indirectly controls, is controlled by, or is under common control
with such person, (ii) which beneficially owns or holds five percent (5%) or
more of any class of the voting stock of such person, or (iii) fifty percent
(50%) or more of the voting stock (or in the case of a person which is not a
corporation, fifty percent (50%) or more of the equity interest) of which is
beneficially owned or held, directly or indirectly, by such person.
AGENT shall mean PNC Bank, National Association and its successors.
AGENT'S FEE shall have the meaning specified in Section 10.15.
AGREEING BANKS shall have the meaning specified in Section 2.13(a).
AGREEMENT shall mean this Senior Secured Credit Agreement, as
amended and restated herein and as the same may be further supplemented,
amended, restated or modified from time to time, including all schedules and
exhibits.
ASSIGNMENT AND ASSUMPTION AGREEMENT shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, the Transferor Bank and the
Agent in the form of EXHIBIT A.
AUDITED STATEMENTS shall have the meaning specified in Section
6.1(i).
AUTHORIZED OFFICER shall mean those persons designated by written
notice to the Agent from the Borrower, authorized to execute notices, reports
and other documents required hereunder. The Borrower may amend such list of
persons from time to time by giving written notice of such amendment to the
Agent.
BANKS shall mean the financial institutions named on SCHEDULE 1.1(A)
and their respective successors and assigns as permitted hereunder, each of
which is referred to herein as a Bank.
BASE RATE shall mean the greater of (i) the interest rate per annum
announced from time to time by the Agent at its Principal Office as its then
prime rate, which rate may not be the lowest rate then being charged commercial
borrowers by the Agent, or (ii) the Federal Funds Effective Rate plus one-half
percent (0.50%) per annum.
BASE RATE OPTION shall mean the Interest Rate Option set forth in
Section 4.1(a).
BASE RATE PORTION shall mean the portion of the Loans bearing
interest at any time under the Base Rate Option.
BENEFIT ARRANGEMENT shall mean at any time an "employee benefit
plan," within the meaning of Section 3(3) of ERISA, which is neither a Defined
Benefit Pension Plan nor a Multiemployer Plan, but which is maintained,
sponsored or otherwise contributed to, by any member of the ERISA Group. Thus, a
Benefit Arrangement includes, e.g., an "employee welfare benefit plan" within
the meaning of Section 3(1) of ERISA, a money purchase pension plan, a funded
deferred profit-sharing plan and an ESOP.
BORROWER shall mean Federated Investors, Inc., a Pennsylvania
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corporation.
BORROWING DATE shall mean with respect to any Loan, the date for the
making thereof or the renewal or conversion thereof to the same or a different
Interest Rate Option, which shall be a Business Day, as specified in the
relevant Loan Request.
BORROWING TRANCHE shall mean, with respect to the Euro-Rate Portion,
Loans to which a Euro-Rate Option applies by reason of the selection of,
conversion to or renewal of such Interest Rate Option on the same day and having
the same Euro-Rate Interest Period, and, with respect to the Base Rate Portion,
Loans to which the Base Rate Option or PNC Quoted Rate Option applies by reason
of the selection of or conversion to such Interest Rate Options.
BUSINESS DAY shall mean (i) with respect to matters relating to the
Euro-Rate Option, a day on which banks in the London interbank market are
dealing in U.S. Dollar deposits and on which commercial banks are open for
domestic and international business in Pittsburgh, Pennsylvania and New York,
New York and (ii) with respect to any other matter, a day on which commercial
banks are open for business in Pittsburgh, Pennsylvania and New York, New York.
CLASS A SHARES shall mean the Class A Common Stock of the Borrower.
CLASS B SHARES shall mean the Class B Common Stock of the Borrower.
CLOSING DATE shall mean January 23, 2001.
COBRA VIOLATION shall mean a failure by any of the Companies to
comply with group health plan continuation coverage requirements of Sections 601
et seq. of ERISA.
COLLATERAL shall mean the Pledged Collateral and the UCC Collateral.
COMMITMENT shall mean, as to any Bank, its Revolving Credit
Commitment, and COMMITMENTS shall mean the Revolving Credit Commitments of all
of the Banks.
COMMON SHARES shall mean the Class A Shares and Class B Shares.
COMPANIES shall mean the Borrower and its Subsidiaries.
CONSOLIDATED EBITDA for each fiscal quarter for the four (4) fiscal
quarters then ended shall mean (i) the sum of net income, depreciation,
amortization, other non-cash charges to net income (excluding any non-cash
charges which require an accrual or reserve for cash charges for any future
period), interest expense and income tax expense MINUS (ii) non-cash credits to
net income, in each case of the Borrower and its Consolidated Subsidiaries for
such period determined in accordance with GAAP; PROVIDED that if the Borrower
and Consolidated Subsidiaries shall make one or more acquisitions of the capital
stock of any Person or all or substantially all of the assets of any Person
permitted by Section 8.2(j) during such period, Consolidated EBITDA for such
period shall be adjusted on a PRO FORMA basis in a manner satisfactory to the
Agent to give effect to all such acquisitions as if they had occurred at the
beginning of such period.
CONSOLIDATED SUBSIDIARIES shall mean and include those subsidiaries
or other entities whose accounts are consolidated with the accounts of the
Borrower in accordance with GAAP PROVIDED that for the purpose of calculating
the financial ratios in Sections 8.2(a)-(c) the impact of the consolidation of
any Special Purpose Subsidiary or entity to which Designated Assets are sold or
assigned by a Special Purpose Subsidiary, in either case pursuant to the Master
Agreement, the Purchase and Sale Agreement or any similar agreement or program
and in accordance with Section 8.2(k)(i), shall be excluded.
CONTROL or CONTROL shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting securities, by
contract or otherwise, including the power to elect a majority of the directors
or trustees of a corporation or trust, as the case may be.
CONTROLLED GROUP shall mean (i) the controlled group of corporations
as defined in Section 1563 of the Internal Revenue Code and regulations
thereunder, and (ii) the group of trades or businesses under common control as
defined in Section 414(c) of the Internal Revenue Code and regulations
thereunder, in the case of either clause (i) or (ii), of which the Borrower or
any Subsidiary is a part or may become a part.
DEFINED BENEFIT PENSION PLAN shall mean at any time an employee
pension benefit plan (including a Multiple Employer Plan but not a Multiemployer
Plan) which is covered by Title IV of ERISA or is subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (i) is
maintained by any member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding five (5) years been
maintained by any entity which was at such time a member of the ERISA Group for
employees of any entity which was at such time a member of the ERISA Group.
DESIGNATED ASSETS shall mean the right to receive deferred sales
charges, including 12b-1 and contingent deferred sales charges, and any
comparable fees from a Fund relating to the sale of Fund shares or sales of
other interest in or obligations of Funds and the maintenance of customer
accounts, including shareholder servicing fees.
DOLLAR, DOLLARS, U.S. DOLLARS and the symbol $ shall mean lawful
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money of the United States of America.
DOMESTIC SUBSIDIARIES shall mean any Subsidiary of the Borrower that
is organized or incorporated under the Laws of any state or commonwealth in the
United States of America.
ENVIRONMENTAL COMPLAINT shall mean any written complaint setting
forth a cause of action for personal or property damage or equitable relief
arising under any Environmental Law, an order, notice of violation, citation,
request for information issued pursuant to any Environmental Laws by an Official
Body, a subpoena or other written notice of any type relating to, arising out
of, or issued pursuant to any Environmental Law.
ENVIRONMENTAL LAWS shall mean all federal, state, local or foreign
laws and regulations, including permits, orders, judgments, consent decrees
issued, or entered into, pursuant thereto, relating to pollution or protection
of human health or the environment.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA GROUP shall mean, at any time, the Borrower and all members of
a Controlled Group.
ESOP shall mean an employee stock ownership plan.
EURO-RATE shall mean with respect to the Loans comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Euro-Rate
Interest Period, the interest rate per annum determined by the Agent by dividing
(the resulting quotient rounded upward, if necessary, to the nearest 1/100 of 1%
per annum) (i) the rate of interest determined by the Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank offered rates for U.S. Dollars
quoted by the British Bankers' Association as set forth on Dow Jones Markets
Service (formerly known as Telerate) (or appropriate successor or, if British
Bankers' Association or its successor ceases to provide such quotes, a
comparable replacement determined by the Agent) display page 3750 (or such other
display page on the Dow Jones Market Service system as may replace display page
3750) two (2) Business Days prior to the first day of such Euro-Rate Interest
Period for an amount comparable to such borrowing and having a borrowing date
and a maturity comparable to such Euro-Rate Interest Period by (ii) a number
equal to 1.00 MINUS the Euro-Rate Reserve Percentage. The Euro-Rate may also be
expressed by the following formula:
Euro-Rate = Average of London Interbank offered rates quoted
by BBA as shown on Dow Jones Markets Service
display page 3750 OR APPROPRIATE SUCCESSOR 1.00 -
Euro-Rate Reserve Percentage
EURO-RATE INTEREST PERIODS shall have the meaning specified in
Section 4.2.
EURO-RATE OPTION shall mean the Interest Rate Option set forth in
Section 4.1(b).
EURO-RATE PORTION shall mean the portion of the Revolving Credit
Loans bearing interest at any time under the Euro-Rate Option.
EURO-RATE RESERVE PERCENTAGE shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent (which determination shall be conclusive absent manifest error)
which is in effect during any relevant period (or, if more than one such
percentage shall be applicable, the daily average of such percentages for those
days in such period during which any such percentages shall be so applicable),
as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as "EUROCURRENCY LIABILITIES") of a member bank
in the Federal Reserve System.
EVENT OF DEFAULT shall mean any of the Events of Default described
in Section 9.1.
EXISTING SENIOR CREDIT AGREEMENT shall have the meaning given to
such term in the first recital clause.
FACILITY FEE shall have the meaning specified in Section 2.3(a).
FEDERAL FUNDS EFFECTIVE RATE for any day shall mean the rate per
annum (based on a year of 360 days and actual days elapsed and rounded upward to
the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or
any successor) on such day as being the weighted average of the rates on
overnight federal funds transactions arranged by federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve Bank (or
any successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "FEDERAL FUNDS
EFFECTIVE RATE" as of the date of this Agreement; PROVIDED, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"FEDERAL FUNDS EFFECTIVE RATE" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
FEDERATED BANK shall mean Federated Investors Trust Company, a state
chartered bank under the laws of New Jersey.
FOREIGN SUBSIDIARIES shall mean any Subsidiary of the Borrower that
is not a Domestic Subsidiary.
FUND FEES shall mean the management, administrative, shareholder
services, 12b-1, back-end and other similar fees contractually due any of the
Companies.
FUNDS shall mean the mutual funds, collateralized bond obligation
vehicles, collateralized mortgage obligation vehicles, investment conduits or
other entities for which any of the Companies serves as an advisor, an
administrator, a distributor, as servicer, a transfer agent, a portfolio or fund
accountant, or a clearing servicer.
GAAP shall mean generally accepted accounting principles as are in
effect from time to time, subject to the provisions of Section 1.3, and applied
on a consistent basis (except for changes in application in which the Borrower's
independent certified public accountants concur) both as to classification of
items and amounts.
GOVERNMENTAL ACTS shall have the meaning given to such term in
Section 2.10(h).
GRANTORS shall mean the Borrower and certain of its Subsidiaries who
are signatories to the Security Agreement as indicated in EXHIBIT B.
GUARANTY of any person shall mean any obligation of such person
guaranteeing or in effect guaranteeing any liability or obligation of any other
person in any manner, whether directly or indirectly, including any agreement to
indemnify or hold harmless any other person, any performance bond or other
suretyship arrangement and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.
HISTORICAL STATEMENTS shall have the meaning specified in Section
6.1(i).
INDEBTEDNESS shall mean as to any person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations under any letter of
credit, currency swap agreement, interest rate swap, cap, collar or floor
agreement or other interest rate protection device, (iv) any other transaction
(including forward sale or purchase agreements, capitalized leases and
conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness and which are not more than thirty (30) days
past due), or (v) any Guaranty of Indebtedness for borrowed money.
INTERCOMPANY SUBORDINATION AGREEMENT shall mean the Intercompany
Subordination Agreement in the form of EXHIBIT C executed and delivered by the
Companies to the Agent for the benefit of the Banks, as amended, restated or
supplemented from time to time in accordance with the terms thereof.
INTERCREDITOR AGREEMENT (SENIOR NOTES) shall mean the Intercreditor
and Collateral Agency Agreement between the Banks, the holders of the Senior
Notes, and PNC, as collateral agent for the benefit of the Banks and the holders
of the Senior Notes, dated as of June 15, 1996, as amended, restated or
supplemented from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE shall mean each date specified for the payment
of interest in Section 5.3.
INTEREST RATE OPTION shall mean the Euro-Rate Option, the Base Rate
Option or the PNC Quoted Rate Option.
INTERIM STATEMENTS shall have the meaning specified in Section
6.1(i).
INTERNAL REVENUE CODE shall mean the Internal Revenue Code of 1986,
as the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
INVESTLINK shall mean Investlink Technologies, Inc., an indirect
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Subsidiary of the Borrower.
INVESTMENT COMPANY ACT shall mean the Investment Company Act of
1940, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
IRS shall mean the Internal Revenue Service.
LABOR CONTRACTS shall have the meaning specified in Section 6.1(u).
LAW shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
LETTER OF CREDIT shall have the meaning assigned to that term in
Section 2.10(a).
LETTER OF CREDIT FEE shall have the meaning assigned to that term in
Section 2.10(c).
LETTER OF CREDIT FRONTING FEE shall have the meaning assigned to
that term in Section 2.10(c).
LETTER OF CREDIT OUTSTANDINGS shall mean at any time the sum of (i)
the aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations.
LEVERAGE RATIO shall mean the ratio of Total Indebtedness to
Consolidated EBITDA.
LIEN shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LIMITED INVESTMENTS shall mean the following: (i) investments or
contributions by a Loan Party directly or indirectly in the capital stock of or
other payments (except in connection with transactions for fair value in the
ordinary course of business, including usual and customary service and occupancy
contracts) to any of the Special Purpose Subsidiaries, (ii) loans by a Loan
Party directly or indirectly to any of the Special Purpose Subsidiaries, (iii)
guarantees by a Loan Party directly or indirectly of the obligations of any of
the Special Purpose Subsidiaries, or (iv) other obligations, contingent or
otherwise, of the Loan Parties to or for the benefit of any of the Special
Purpose Subsidiaries.
LOAN PARTIES shall mean the Pledgors and the Companies.
LOAN REQUEST shall mean a Revolving Credit or Swing Loan Request
made in accordance with Section 2.6(a) or 2.6(b) respectively, or, with respect
to a Revolving Credit Loan, a request to select, convert to or renew a Euro-Rate
Option in accordance with Section 4.2.
LOANS shall mean collectively and LOAN shall mean separately all
Revolving Credit Loans, Swing Loans and Term Loans or any Revolving Credit Loan
Swing Loan or Term Loan.
MASTER AGREEMENT shall mean the Federated Investors Program
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Master Agreement dated as of October 24, 1997, among Federated Investors,
Federated Funding 1997-1, Inc., Federated Investors Management Company,
Federated Securities Corp., the Owner Trustee of the PLT Finance Trust
1997-1, PLT Finance, L.P., Putnam, Lovell & Thorton Inc., and Bankers Trust
Company, as amended or replaced from time to time as permitted under this
Agreement.
MATERIAL ADVERSE CHANGE shall mean any set of circumstances or
events which (i) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Senior Loan Document, (ii) is or could reasonably be expected to be
material and adverse to the business, properties, assets, financial condition,
results of operations or prospects of the Companies, (iii) impairs materially or
could reasonably be expected to impair materially the ability of any of the
Companies to pay punctually its Indebtedness or perform any other obligations in
connection with its Indebtedness, or (iv) impairs materially or could reasonably
be expected to impair materially the ability of the Agent or any of the Banks,
to the extent permitted, to enforce their legal remedies pursuant to this
Agreement or any other Senior Loan Document.
MONTH, with respect to a Euro-Rate Interest Period, shall mean the
interval between the days in consecutive calendar months numerically
corresponding to the first day of such Euro-Rate Interest Period. Any Euro-Rate
Interest Period which begins on the last Business Day of a calendar month for
which there is no numerically corresponding Business Day in the subsequent
calendar month shall end on the last Business Day of such subsequent month.
MULTIEMPLOYER PLAN shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower, any Subsidiary of the Borrower or any member of the ERISA
Group is then making or accruing an obligation to make contributions or, within
the preceding five (5) plan years, has made or had an obligation to make such
contributions.
MULTIPLE EMPLOYER PLAN shall mean a Defined Benefit Pension Plan
which has two (2) or more contributing sponsors (including the Borrower or any
member of the ERISA Group) at least two (2) of whom are not under common
control, as such a plan is described in Sections 4063 and 4064 of ERISA.
NON-AGREEING BANKS shall have the meaning specified in Section
2.13(a).
NOTES shall mean the Revolving Credit Notes, the Term Notes and the
Swing Note.
OFFICIAL BODY shall mean any national, federal, state, local or
other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
PASSPORT shall mean Passport Research Ltd., an indirect
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Subsidiary of the Borrower.
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
PERMITTED INVESTMENTS shall mean:
(i) investments made under usual and customary terms in the ordinary course
of business in or relating to the establishment or maintenance of the Funds;
(ii) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations backed by the full faith and credit of
the United States of America, maturing in sixty (60) months or less from the
date of acquisition;
(iii).commercial paper maturing in one hundred eighty (180) days or
less rated not lower than A-1 by Standard & Poor's Corporation or P-1 by Moody's
Investors Service on the date of acquisition;
(iv)..demand deposits, time deposits or certificates of deposit
maturing within five (5) years in commercial banks whose obligations are rated
A-1, P-1 or the equivalent or better by Standard & Poor's Corporation or Moody's
Investors Service on the date of acquisition;
(v)...corporate obligations rated A or better by Standard & Poor's
Corporation or Moody's Investors Service on the date of acquisition, maturing in
sixty (60) months or less from the date of acquisition;
(vi)..repurchase agreements and reverse repurchase agreements
maturing within one (1) year and entered into with commercial banks or
investment banking firms of recognized standing with respect to any investment
permitted under clauses (i) through (v) above;
(vii).any interest rate protection instrument reasonably
acceptable to the Agent;
(viii) any Fund (A) for which any of the Companies serves as an
investment advisor or (B) for which none of the Companies serves as an
investment advisor, PROVIDED that the aggregate investment in Funds governed by
clause (B) shall not exceed $20,000,000 at any one time; and
(ix)..any money market fund with minimum investment amounts of not
less than $250,000.
PERMITTED LIENS shall mean:
(i)...Liens for taxes, assessments, or similar charges, incurred
in the ordinary course of business and which are not yet due and payable;
(ii)..pledges or deposits made in the ordinary course of business to
secure payment of workmen's compensation, or to participate in any fund in
connection with workmen's compensation, unemployment insurance, old-age pensions
or other social security programs;
(iii).Liens of mechanics, materialmen, warehousemen, carriers, or
other like liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in
default;
(iv)..(A) good-faith pledges or deposits made in the ordinary course
of business to secure performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases, not in excess of the aggregate
amount due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business and (B) Liens granted to surety companies or to financial institutions
to secure standby letters of credit issued by such institutions to surety
companies as an inducement for such surety companies to issue or maintain
existing surety, appeal, indemnity, performance or other similar bonds required
in the ordinary course of business;
(v)...encumbrances consisting of zoning restrictions, easements or
other restrictions on the use of real property, none of which materially impairs
the use of such property or the value thereof, and none of which is violated in
any material respect by existing or proposed structures or land use;
(vi)..Liens, security interests and mortgages in favor of (A) the
Agent for the benefit of the Banks and (B) the holders of the Senior Notes
PROVIDED, any liens, security interests or mortgages in favor of the holders or
the Senior Notes shall relate only to the Collateral or any portion thereof and
not to any other assets or property of any nature not included in the
Collateral, PROVIDED further that after the Agent and the Banks have released
the Collateral pursuant to Section 2.14, any Liens, security interests and
mortgages in favor of the holders of Senior Notes shall not be Permitted Liens;
(vii).any Lien existing on the date of this Agreement and described
on SCHEDULE 8.2(E), PROVIDED that the principal amount secured thereby as of the
Closing Date is not hereafter increased and no additional assets become subject
to such Lien;
(viii) operating leases;
(ix)..capital leases made under usual and customary terms in the
ordinary course of business and Purchase Money Security Interests as and to the
extent permitted in Section 8.2(e)(iii); and
(x)...the following, (A) if the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged
within thirty (30) days of entry, and in either case they do not affect the
Collateral or result in a Material Adverse Change:
(1) claims or Liens for taxes, assessments or charges due and
payable and subject to interest or penalty, PROVIDED that each of
the Companies maintains such reserves or other appropriate
provisions as shall be required by GAAP and pays all such taxes,
assessments or charges forthwith upon the commencement of
proceedings to foreclose any such Lien;
(2) claims, Liens or encumbrances upon, and defects of title
to, real or personal property other than the Collateral, including
any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits;
(3) claims or Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens; or
(4) Liens of governmental entities arising under federal or
state environmental laws.
PERSON or PERSON shall mean any individual, corporation,
partnership, association, joint-stock company, trust, unincorporated
organization, joint venture, government or political subdivision or agency
thereof, or any other entity.
PLEDGE AGREEMENT shall mean the Pledge Agreement in the form of
EXHIBIT E executed and delivered by the Pledgors to the Agent for the benefit of
the Banks as security for the Loans, as amended, restated or supplemented from
time to time in accordance with the terms thereof.
PLEDGED COLLATERAL shall mean that portion of the Collateral which
consists of the issued and outstanding shares of capital stock, beneficial
interests or partnership interests of the Companies and related items which are
pledged under the Pledge Agreement.
PLEDGED SHARES shall mean that portion of the Pledged Collateral
which consists of all of the issued and outstanding Class A Shares.
PLEDGED SUBSIDIARY shall mean a Subsidiary (other than Passport) of
the Borrower whose outstanding capital stock or shares of beneficial interest or
partnership interests are pledged to the Agent for the benefit of the Banks
under the Pledge Agreement.
PLEDGING SUBSIDIARIES shall mean FII Holdings, Inc., Federated
Services Company, Federated International Holdings, BV (subject to Section
8.1(l) and any Subsidiaries of the Borrower which join the Pledge Agreement
after the date hereof pursuant to Section 8.1(l).
PLEDGORS shall mean the Borrower, the Pledging Subsidiaries and the
holders of the Class A Shares.
PNC shall mean PNC Bank, National Association and its successors and
assigns.
PNC QUOTED RATE OPTION shall mean the Interest Rate Option set forth
in Section 4.1(b-1).
POTENTIAL DEFAULT shall mean any event or condition which with
notice, passage of time or a determination by the Agent, all the Banks or the
Required Banks, or any combination of the foregoing, as the case may be, would
constitute an Event of Default.
PREFERRED SHARES shall mean the Preferred Stock of the Borrower.
PRINCIPAL OFFICE shall mean the main banking office of the Agent in
Pittsburgh, Pennsylvania.
PRIOR SECURITY INTEREST shall mean a valid and enforceable perfected
first priority security interest under the Uniform Commercial Code in the UCC
Collateral and the Pledged Collateral which is subject only to Liens for taxes
not yet due and payable to the extent such prospective tax payments are given
priority by statute as permitted hereunder.
PROHIBITED TRANSACTION shall mean any prohibited transaction as
defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by the United
States Department of Labor.
PURCHASE AND SALE AGREEMENT shall mean the Purchase and Sale
---------------------------
Agreement dated as of December 21, 2000 by and among Federated Investors
Management Company, Federated Securities Corp., Federated Funding 1997-1,
Inc., Federated Investors, Inc., Citibank, N.A., and Citicorp North America,
Inc.
PURCHASE MONEY SECURITY INTEREST shall mean Liens upon tangible
personal property securing loans to any Loan Party or Subsidiary of a Loan Party
or deferred payments by such Loan Party or Subsidiary for the purchase of such
tangible personal property.
PURCHASING BANK shall mean a Bank which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
RATABLE SHARE shall mean the proportion that a Bank's Commitment
bears to the Commitments of all the Banks.
REGULATION U shall mean Regulation U, T, G or X as promulgated by
the Board of Governors of the Federal Reserve System, as amended from time to
time.
REIMBURSEMENT OBLIGATIONS shall have the meaning given to such term
in Section 2.10(d)(i).
REPORTABLE EVENT shall mean (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Defined
Benefit Pension Plan, (ii) a withdrawal by a substantial employer from a Defined
Benefit Pension Plan to which more than one employer contributes, as referred to
in Section 4063(b) of ERISA, or (iii) a cessation of operations at a facility
causing more than twenty percent (20%) of plan participants to be separated from
employment, as referred to in Section 4062(f) of ERISA.
REQUIRED BANKS shall mean (i) if there are no Loans outstanding,
Banks whose Commitments aggregate at least 51% of the total Commitments of all
Banks, or (ii) if there are Loans outstanding, Banks, the total principal amount
of whose Loans outstanding aggregate at least 51% of the total principal amount
of the Loans outstanding hereunder as of the immediately preceding Settlement
Date.
RESTRICTED STOCK shall mean the Class B Shares issued under and in
accordance with the Federated Investors Employee Restricted Stock Plan.
REVOLVING CREDIT COMMITMENT shall mean, as to any Bank at any time,
the amount initially set forth opposite its name on SCHEDULE 1.1(A) in the
column labeled "Amount of Commitment for Revolving Credit Loans" and thereafter
on Schedule I to the most recent Assignment and Assumption Agreement, and
REVOLVING CREDIT COMMITMENTS shall mean the aggregate Revolving Credit
Commitments of all of the Banks.
REVOLVING CREDIT EXPIRATION DATE shall mean the date 364 days after
the Closing Date or such later date as determined pursuant to Section 2.13(a).
REVOLVING CREDIT FACILITY shall have the meaning given to such term
in the first recital clause.
REVOLVING CREDIT LOAN REQUEST shall mean a request for Revolving
Credit Loans made in accordance with Section 2.6(a).
REVOLVING CREDIT LOANS shall mean collectively all, and Revolving
Credit Loan shall mean separately any, of the revolving credit loans made by the
Banks or one of the Banks to the Borrower pursuant to Section 2.1(a).
REVOLVING CREDIT NOTES shall mean collectively all, and REVOLVING
CREDIT NOTE shall mean separately any, of the Revolving Credit Notes of the
Borrower in the form of EXHIBIT F, evidencing the Revolving Credit Loans,
together with all amendments, restatements, extensions, renewals, replacements,
refinancings or refundings thereof in whole or in part.
REVOLVING FACILITY USAGE shall mean at any time the sum of the
Revolving Credit Loans and Swing Loans outstanding and the Letter of Credit
Outstandings.
SECTION 12B-1 PLAN shall mean a plan of distribution adopted by a
mutual fund pursuant to Rule 12b-1 of the Investment Company Act.
SECURITY AGREEMENT shall mean the Security Agreement in the form of
EXHIBIT B executed and delivered by the Grantors to the Agent for the benefit of
the Banks as security for the Loans, as amended, restated or supplemented from
time to time in accordance with the terms thereof.
SENIOR LOAN DOCUMENTS shall mean this Agreement, the Notes, the
Intercompany Subordination Agreement, the Security Agreement, the Pledge
Agreement, the Intercreditor Agreement (Senior Notes) and any other instruments,
certificates, powers of attorney or documents delivered or contemplated to be
delivered thereunder or in connection herewith, as the same may be supplemented
or amended from time to time in accordance herewith, and SENIOR LOAN DOCUMENT
shall mean any of the Senior Loan Documents.
SENIOR NOTES shall mean those certain 7.96% Senior Secured Notes due
2006.
SETTLEMENT DATE shall mean the second Business Day of each month and
the third Wednesday of each month (if such day is a Business Day and if not, the
next succeeding Business Day) and any other Business Day on which the Agent
elects to effect settlement pursuant to Section 5.6.
SHAREHOLDER RIGHTS AGREEMENT shall mean the Shareholder Rights
Agreement dated August 1, 1989 among Standard Fire, the Borrower and the persons
executing a letter substantially in the form of EXHIBIT A thereto, as amended
through the Closing Date and as the same may be further amended from time to
time in accordance herewith.
SOLVENT shall mean, with respect to any person on a particular date,
that on such date (i) the fair value of the property of such person is greater
than the total amount of liabilities, including contingent liabilities, of such
person, (ii) 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, (iii) such person is
able to realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (iv) 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, and (v) such person is not engaged in business or
a transaction, and is not about to engage in 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. 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.
SPECIAL PURPOSE SUBSIDIARY shall mean any corporation, business
trust or other entity formed by the Borrower to engage in the limited activities
permitted by Section 8.2(p)(i) and shall be an indirect wholly owned subsidiary
of the Borrower, PROVIDED, that if the Special Purpose Subsidiary is organized
under the law of a foreign jurisdiction which requires that residents of such
foreign jurisdiction maintain a certain level of ownership interest in such
Special Purpose Subsidiary, then a wholly owned Subsidiary of the Borrower shall
own a number of outstanding shares of such Special Purpose Subsidiary that is
not less than the greater of (i) 51% of the outstanding shares of such Special
Purpose Subsidiary and (ii) the number of outstanding shares of such Special
Purpose Subsidiary required pursuant to the law of such foreign jurisdiction.
SUBSIDIARY of any person at any time shall mean (i) any corporation
or trust of which fifty percent (50%) or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such person or one or
more of such person's Subsidiaries, or any partnership of which such person is a
general partner or of which fifty percent (50%) or more of the partnership
interests is at the time directly or indirectly owned by such person or one or
more of such person's Subsidiaries, and (ii) any corporation, trust, partnership
or other entity which is controlled or capable of being controlled by such
person or one or more of such person's Subsidiaries. For the purposes of this
Agreement, none of the Special Purpose Subsidiaries or the Funds shall be
considered a "Subsidiary" of the Borrower. For the purposes of this Agreement,
the term "wholly owned Subsidiaries" shall include (x) all Subsidiaries of which
all of the outstanding shares of capital stock or beneficial interest of such
Subsidiary are owned by the Borrower or another wholly owned Subsidiary of the
Borrower, or (v) foreign Subsidiaries where the law of the applicable foreign
jurisdiction requires that residents of such foreign jurisdiction maintain a
certain level of ownership interest in such Subsidiary and the Borrower or
another wholly owned Subsidiary of the Borrower owns not less than the greater
of (a) 51% of the outstanding shares of capital stock or beneficial interests of
such Subsidiary and (B) the number of outstanding shares of capital stock or
beneficial interests of such Subsidiary required pursuant to the law of such
foreign jurisdiction are owned by the Borrower or another wholly owned
Subsidiary of the Borrower.
SUBSIDIARY SHARES shall have the meaning specified in Section
6.1(c).
SUPERMAJORITY BANKS shall have the meaning specified in Section
2.13(a).
SWING LOAN COMMITMENT shall mean PNC's commitment to make Swing
Loans to the Borrower pursuant to Section 2.1(b) in an aggregate principal
amount up to $20,000,000.
SWING LOAN REQUEST shall mean a request for Swing Loans made in
accordance with Section 2.6(b).
SWING LOANS shall mean collectively and SWING LOAN shall mean
separately all swing loans or any swing loan made by PNC to the Borrower
pursuant to Section 2.1(b).
SWING NOTE shall mean the Swing Note of the Borrower in the form of
EXHIBIT G, evidencing the Swing Loans, together with all amendments, extensions,
renewals, restatements, refinancings or refundings thereof in whole or in part.
TERM LOANS shall mean collectively and TERM LOAN shall mean
separately all term loans or any term loan made by the Banks or one of the Banks
pursuant to Section 2.12.
TERM NOTE shall have the meaning specified in Section 2.12.
TERM-OUT OPTION shall have the meaning specified in Section 2.12.
TOTAL INDEBTEDNESS shall mean, for any fiscal quarter for the fiscal
quarter then ended, all Indebtedness of the Borrower and its Consolidated
Subsidiaries.
TRANSFEROR BANK shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
UCC COLLATERAL shall mean that portion of the Collateral which
consists of the property of the Companies in which security interests are
granted under the Security Agreement.
UNIFORM COMMERCIAL CODE shall have the meaning assigned to that term
in Section 6.1(p).
UNPLEDGED SHARES shall mean all of the issued and outstanding shares
of capital stock of the Borrower other than the Class A Shares.
USAGE FEE shall have the meaning specified in Section 2.3(b).
1.2 CONSTRUCTION.
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Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural, and the
part the whole, "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation." References in this Agreement to "determination" of or by
the Agent or the Banks shall be deemed to include good-faith estimates by the
Agent or the Banks (in the case of quantitative determinations) and good-faith
beliefs by the Agent or the Banks (in the case of qualitative determinations).
Whenever the Agent or the Banks are granted the right herein to act in its or
their sole discretion or to grant or withhold consent, such right shall be
exercised in good faith. The words "hereof," "herein," "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. The section headings and other headings
contained in this Agreement and the Table of Contents preceding this Agreement
are for reference purposes only and shall not control or affect the construction
of this Agreement or the interpretation thereof in any respect. Section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
1.3 ACCOUNTING PRINCIPLES.
---------------------
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP provided that for the purpose of determining
compliance with Section 8.2(e) and (f), the impact of the incurrence of
indebtedness or creation of liens in connection with the sale or transfer of
Designated Assets as described and permitted under Section 8.2(k)(i) shall be
excluded. If one or more changes in GAAP after the date of this Agreement are
required to be applied to then existing transactions, and either a violation of
one or more provisions hereof shall have occurred which would not have occurred
if no change in accounting principles had taken place or a violation of one or
more of the provisions hereof shall not occur which would have occurred if no
change in accounting principles had taken place:
(a) the parties agree that any such violation shall not be considered to
constitute an Event of Default for a period of thirty (30) days;
(b) the parties agree in such event to negotiate in good faith to attempt to
draft an amendment of this Agreement satisfactory to the Required Banks which
shall approximate to the extent possible the economic effect of the original
provisions hereof after taking into account such change or changes in GAAP; and
(c) if the parties are unable to negotiate such an amendment satisfactory to the
Required Banks within thirty (30) days, then as used in this Agreement "GAAP"
shall mean generally accepted accounting principles as in effect prior to such
change.
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 THE COMMITMENTS.
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(a) REVOLVING CREDIT COMMITMENTS. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, each Bank
severally agrees to make Revolving Credit Loans to the Borrower at any time or
from time to time on or after the date hereof to, but not including, the
Revolving Credit Expiration Date in an aggregate principal amount not to exceed,
at any one time such Bank's Revolving Credit Commitment MINUS such Bank's
Ratable Share of the Letter of Credit Outstandings. Within such limits of time
and amount and subject to the other provisions of this Agreement, the Borrower
may borrow, repay and reborrow pursuant to this Section 2.1(a).
(b) SWING LOAN COMMITMENT. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, and in order
to facilitate loans and repayments between Settlement Dates, PNC may make, at
its option, cancelable at any time for any reason whatsoever, swing loans (the
"SWING LOANS") to the Borrower at any time or from time to time after the date
hereof to, but not including, the Revolving Credit Expiration Date in an
aggregate principal amount up to $20,000,000 (the "SWING LOAN COMMITMENT"),
PROVIDED that the aggregate principal amount of PNC's Swing Loans and the
Revolving Credit Loans of all the Banks at any one time outstanding shall not
exceed the Revolving Credit Commitments of all the Banks. Within such limits of
time and amount and subject to the other provisions of this Agreement, the
Borrower may borrow, repay and reborrow pursuant to this Section 2.1(b).
2.2 NATURE OF THE BANKS' AND THE BORROWER'S OBLIGATIONS.
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Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.6 in accordance with its Ratable
Share. The aggregate of each Bank's Revolving Credit Loans outstanding hereunder
to the Borrower at any time shall never exceed its Revolving Credit Commitment
MINUS its Ratable Share of the Letter of Credit Outstandings at such time. The
obligations of each Bank hereunder are several. The failure of any Bank to
perform its obligations hereunder shall not affect the obligations of the
Borrower to any other party nor shall any other party be liable for the failure
of such Bank to perform its obligations hereunder. The Banks shall have no
obligation to make Revolving Credit Loans hereunder on or after the Revolving
Credit Expiration Date.
2.3 FEES.
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(a) FACILITY FEES.
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Accruing from the Closing Date until the Revolving Credit Expiration
Date, the Borrower agrees to pay to the Agent for the account of each Bank, as
consideration for such Bank's Revolving Credit Commitment hereunder, a facility
fee (the "FACILITY FEE") equal to a percentage per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal
to 0.10% of such Bank's Revolving Credit Commitment as the same may be
constituted from time to time
All Facility Fees shall be payable in arrears on the second Business
Day of each April, July, October and January after the date hereof and on the
Revolving Credit Expiration Date or upon acceleration of the Notes.
(b) USAGE FEES. Accruing from the Closing Date until the Revolving Credit
Expiration Date, the Borrower agrees to pay to the Agent for the account of each
Bank, as consideration for such Bank's Revolving Credit Commitment hereunder, a
usage fee (the "USAGE FEE") equal to a percentage per annum (computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed)
equal to 0.125% of the daily amount of the Revolving Facility Usage for each day
that the Revolving Facility Usage exceeds fifty percent (50%) of the Revolving
Credit Commitments (for purposes of this computation, PNC's Swing Loans shall be
deemed to be borrowed amounts under its Revolving Credit Commitment and Letter
of Credit Outstandings shall be deemed to be borrowed amounts under each Bank's
Revolving Credit Commitments in accordance with its Ratable Share). All Usage
Fees shall be payable in arrears on the second Business Day of each April, July,
October and January after the date hereof and on the Revolving Credit Expiration
Date or upon acceleration of the Notes.
2.4 PERMANENT REDUCTIONS OF COMMITMENTS.
-----------------------------------
(a) VOLUNTARY REDUCTIONS. The Borrower shall be permitted, without premium or
penalty, at any time upon five (5) Business Day's notice to the Agent, to reduce
permanently the Revolving Credit Commitments in an aggregate amount of not less
than $5,000,000 and in integral multiples of $1,000,000 for amounts in excess of
$5,000,000, and each Bank's Revolving Credit Commitments shall be reduced in
accordance with its Ratable Share; PROVIDED, HOWEVER, the principal amount of
all Revolving Credit Loans outstanding at any time shall not be permitted to
exceed the Revolving Credit Commitments of all the Banks at such time.
(b) EFFECT OF REDUCTIONS. After each such reduction, the Facility Fee and the
Usage Fee shall be calculated upon the Revolving Credit Commitments of the Banks
as so reduced, and the amount of the reduction of the Revolving Credit
Commitments may not be reinstated.
2.5 [INTENTIONALLY OMITTED]
2.6 LOAN REQUESTS.
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(a) REVOLVING CREDIT LOAN REQUESTS. Except as otherwise provided herein, the
Borrower may from time to time prior to the Revolving Credit Expiration Date
request the Banks to make Revolving Credit Loans, or renew or convert the
Interest Rate Option applicable to existing Revolving Credit Loans, by the
delivery to the Agent, not later than 2:00 p.m. Pittsburgh time (i) three (3)
Business Days prior to the proposed Borrowing Date with respect to the making of
Revolving Credit Loans to which the Euro-Rate Option applies or the conversion
to or the renewal of the Euro-Rate Option for any Revolving Credit Loans; and
(ii) not later than 11:00 a.m. Pittsburgh time on the proposed Borrowing Date
with respect to the making of a Revolving Credit Loan to which the Base Rate
Option applies or the last day of the preceding Euro-Rate Interest Period with
respect to the conversion to the Base Rate Option for any Revolving Credit Loan,
of a duly completed request therefor substantially in the form of EXHIBIT H-1 or
a request by telephone immediately confirmed in writing by letter, facsimile or
telex (each, a "REVOLVING CREDIT LOAN Request"), it being understood that the
Agent may rely on the authority of any person making such a telephonic request
without the necessity of receipt of such written confirmation. Each Revolving
Credit Loan Request shall be irrevocable and shall specify (i) the proposed
Borrowing Date; (ii) the aggregate principal amount of the proposed Revolving
Credit Loans comprising the Borrowing Tranche, which shall be in integral
multiples of $50,000 and not less than $5,000,000 for Revolving Credit Loans to
which the Euro-Rate Option applies and not less than the lesser of $1,000,000 or
the maximum amount available under the Revolving Credit Commitments for
Revolving Credit Loans to which the Base Rate Option applies; (iii) whether the
Euro-Rate Option or the Base Rate Option shall apply to the proposed Revolving
Credit Loans comprising the Borrowing Tranche; and (iv) in the case of Revolving
Credit Loans to which the Euro-Rate Option applies, an appropriate Euro-Rate
Interest Period for the proposed Revolving Credit Loans comprising the Borrowing
Tranche. If no such notice is given at least three (3) Business Days prior to
the expiration of any Euro-Rate Interest Period for any Revolving Credit Loan or
portion thereof, the Borrower shall be deemed to have converted such Revolving
Credit Loan or portion thereof to the Base Rate Option commencing upon the last
day of that Euro-Rate Interest Period.
(b) SWING LOAN REQUESTS. Except as otherwise provided herein, the Borrower may
from time to time prior to the Revolving Credit Expiration Date request PNC to
make Swing Loans by delivery to PNC not later than 3:00 p.m. Pittsburgh time on
the proposed Borrowing Date of a duly completed request therefor substantially
in the form of EXHIBIT H-2 or a request by telephone immediately confirmed in
writing by letter, facsimile or telex (each, a "SWING LOAN REQUEST"), it being
understood that the Agent may rely on the authority of any person making such a
telephonic request without the necessity of receipt of such written
confirmation. Each Swing Loan Request shall be irrevocable and shall specify (i)
the proposed Borrowing Date (ii) whether the Base Rate Option or the PNC Quoted
Rate Option shall apply and (iii) the principal amount of such Swing Loan, which
shall not be less than $100,000. PNC shall use reasonable efforts to inform the
Borrower by 12:00 noon (Pittsburgh time) on each Business Day as to what the PNC
Quoted Rate Option is on such Business Day. If PNC has not informed the Borrower
as to the PNC Quoted Rate Option available on any Business Day, the Borrower may
also telephone PNC on any Business Day to request PNC to provide the Borrower
with the PNC Quoted Rate Option available on such Business Day, and PNC shall
promptly respond to such request. If the Borrower elects the PNC Quoted Rate
Option to apply with respect to any Swing Loan, such PNC Quoted Rate Option will
be in effect until 3:00 p.m. (Pittsburgh time) on the following Business Day.
2.7 MAKING LOANS.
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(a) REVOLVING CREDIT LOANS. The Agent shall, promptly after receipt by it of a
Revolving Credit Loan Request pursuant to Section 2.6(a), notify the Banks of
its receipt of such Revolving Credit Loan Request specifying: (i) the proposed
Borrowing Date and the time and method of disbursement of such Revolving Credit
Loan; (ii) the amount and type of such Revolving Credit Loan and the applicable
Euro-Rate Interest Period (if any); and (iii) the apportionment among the Banks
of the Revolving Credit Loans as determined by the Agent in accordance with
Section 2.2. Each Bank shall remit the principal amount of each Revolving Credit
Loan to the Agent such that the Agent is able to, and the Agent shall, to the
extent the Banks have made funds available to it for such purpose, fund such
Revolving Credit Loan to the Borrower in U.S. Dollars and immediately available
funds at the Principal Office prior to 3:00 p.m. Pittsburgh time on the
Borrowing Date; PROVIDED that if any Bank fails to remit such funds to the Agent
in a timely manner the Agent may elect in its sole discretion to fund with its
own funds the Revolving Credit Loan of such Bank on the Borrowing Date;
PROVIDED, FURTHER, that such funding by the Agent shall not be deemed to
increase the Revolving Credit Commitment of the Agent or to reduce the Revolving
Credit Commitment of such Bank.
(b) SWING LOANS. So long as PNC elects to make Swing Loans, PNC shall, after
receipt by it of a Swing Loan Request pursuant to Section 2.6(b), fund such
Swing Loan to the Borrower in U.S. Dollars and immediately available funds at
the Principal Office prior to 5:00 p.m. Pittsburgh time on the Borrowing Date;
PROVIDED that after PNC receives notice of default as set forth in Section 10.9,
PNC shall not make any Swing Loans.
2.8 BORROWINGS TO REPAY SWING LOANS.
-------------------------------
PNC may at its option, exercisable at any time for any reason
whatsoever, demand repayment of the Swing Loans, and each Bank shall make a
Revolving Credit Loan in an amount equal to such Bank's Ratable Share of the
aggregate principal amount of the outstanding Swing Loans plus, if PNC so
requests, accrued interest thereon, PROVIDED that no Bank shall be obligated in
any event to make Revolving Credit Loans in excess of its Revolving Credit
Commitment MINUS its Ratable Share of the Letter of Credit Outstandings.
Revolving Credit Loans made pursuant to the preceding sentence shall bear
interest at the Base Rate Option and shall be deemed to have been properly
requested in accordance with Section 2.6(a) without regard to any of the
requirements of that provision. PNC shall provide notice to the Banks (which may
be telephonic or written notice by letter, facsimile or telex) that such
Revolving Credit Loans are to be made under this Section 2.8 and of the
apportionment among the Banks, and the Banks shall be unconditionally obligated
to fund such Revolving Credit Loans (whether or not the conditions specified in
Section 7.2 are then satisfied) by the time PNC so requests, which shall not be
earlier than 3:00 p.m. Pittsburgh time on the Business Day next succeeding the
date the Banks receive such notice from PNC.
2.9 NOTES.
-----
(a) REVOLVING CREDIT NOTES. The obligation of the Borrower to repay the
aggregate unpaid principal amount of the Revolving Credit Loans made to it by
each Bank together with interest thereon shall be evidenced by a promissory note
of the Borrower dated the Closing Date in the form of EXHIBIT F payable to the
order of each Bank in a face amount equal to the Revolving Credit Commitment of
such Bank. The Revolving Credit Notes shall be payable in full on the Revolving
Credit Expiration Date or earlier acceleration of the Notes.
(b) SWING NOTE. The obligation of the Borrower to repay the unpaid principal
amount of the Swing Loans made to it by PNC together with interest thereon shall
be evidenced by a demand promissory note of the Borrower dated the Closing Date
in the form of EXHIBIT G payable to the order of PNC in a face amount equal to
the Swing Loan Commitment.
2.10 LETTER OF CREDIT SUBFACILITY.
----------------------------
(a) ISSUANCE OF LETTERS OF CREDIT. The Borrower may request the issuance of a
letter of credit (each a "LETTER OF CREDIT") on behalf of itself or another
Company by delivering to the Agent a completed application and agreement for
letters of credit in such form as the Agent may specify from time to time by no
later than 10:00 a.m. Pittsburgh time at least three (3) Business Days, or such
shorter period as may be agreed to by the Agent, in advance of the proposed date
of issuance. Subject to the terms and conditions hereof and in reliance on the
agreements of the other Banks set forth in this Section 2.10, the Agent will
issue a Letter of Credit PROVIDED that each Letter of Credit shall (A) have a
maximum maturity of three hundred sixty-four (364) days from the date of
issuance, (B) in the event that the Letter of Credit shall have an expiration
date later than the Revolving Credit Expiration Date, the Borrower shall provide
to the Agent with respect to any such Letter of Credit no later than five (5)
Business Days prior to the Revolving Credit Expiration Date either (i) cash
collateral for deposit in a non-interest bearing account with the Agent an
amount equal to the maximum amount available to be drawn on such Letter of
Credit and the Borrower pledges to the Agent and the Banks a security interest
in all such cash as security for the Letter of Credit Outstandings, or (ii) a
replacement letter of credit, PROVIDED, FURTHER, that in no event shall (i) the
Letter of Credit Outstandings exceed, at any one time, $25,000,000, or (ii) the
Revolving Facility Usage exceed, at any one time, the Revolving Credit
Commitments.
(b) PARTICIPATIONS. Immediately upon issuance of each Letter of Credit, and
without further action, each Bank shall be deemed to, and hereby agrees that it
shall, have irrevocably purchased for such Bank's own account and risk from the
Agent an individual participation interest in such Letter of Credit and drawings
thereunder in an amount equal to such Bank's Ratable Share of the maximum amount
which is or at any time may become available to be drawn thereunder and each
such Bank shall be responsible to reimburse the Agent immediately for its
Ratable Share of any disbursement under any Letter of Credit which has not been
reimbursed by the Borrower in accordance with Section 2.10(d).
(c) LETTER OF CREDIT FEES. The Borrower shall pay (i) to the Agent for the
ratable account of the Banks a fee (the "LETTER OF CREDIT FEE") equal to forty
(40) basis points per annum (computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed), which fee shall be computed on the
daily average Letter of Credit Outstandings and shall be payable quarterly in
arrears commencing with the second Business Day of each April, July, October and
January following issuance of each Letter of Credit and on the Revolving Credit
Expiration Date, and (ii) to the Agent for its own account a fee (the "LETTER OF
CREDIT FRONTING FEE") equal to 0.125% per annum (computed on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed), which fee
shall be computed on the daily average Letter of Credit Outstandings and shall
be payable quarterly in arrears commencing on the Closing Date and thereafter on
the second Business Day of each April, July, October and January. The Borrower
shall also pay to the Agent for the Agent's sole account the Agent's then in
effect customary fees and administrative expenses payable with respect to the
Letters of Credit as the Agent may generally charge or incur from time to time
in connection with the issuance, maintenance, modification (if any), assignment
or transfer (if any), negotiation, and administration of Letters of Credit.
(d) DISBURSEMENTS, REIMBURSEMENT.
----------------------------
(i) The Borrower shall be obligated immediately to reimburse the Agent for all
amounts which the Agent is required to advance pursuant to the Letters of Credit
(collectively, the "REIMBURSEMENT OBLIGATIONS"). Such amounts advanced shall
become, at the time the amounts are advanced, Revolving Credit Loans from the
Banks. Such Revolving Credit Loans shall bear interest at the rate applicable
under the Base Rate Option unless the Borrower elects to have a different
Interest Rate Option apply to such Revolving Credit Loans pursuant to and in
accordance with the provisions contained in Section 4.1.
(ii) The Agent will notify (A) the Borrower of each demand or presentment for
payment or other drawing under each Letter of Credit, and (B) the Banks of the
amount required to be advanced pursuant to the Letters of Credit. Before 10:00
a.m. (Pittsburgh time) on the date of any advance the Agent is required to make
pursuant to the Letters of Credit, each Bank shall make available such Bank's
Ratable Share of such advance in immediately available funds to the Agent.
(e) DOCUMENTATION. The Borrower agrees to be bound by the terms of the Agent's
application and agreement for Letters of Credit and the Agent's written
regulations and customary practices relating to Letters of Credit, though such
interpretation may be different from the Borrower's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error, negligence and/or mistakes, whether of omission or commission, in
following any Company's instructions or those contained in the Letters of Credit
or any modifications, amendments or supplements thereto.
(f) DETERMINATIONS TO HONOR DRAWING REQUESTS. In determining whether to honor
any request for drawing under any Letter of Credit by the beneficiary thereof,
the Agent shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit.
(g) NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS. The obligation of the
Banks to participate in Letters of Credit pursuant to Section 2.10(b) and the
obligation of the Banks pursuant to Section 2.10(d) to fund Revolving Credit
Loans upon a draw under a Letter of Credit and the obligations of the Borrower
to reimburse the Agent upon a draw under a Letter of Credit pursuant to Section
2.10 shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of such Sections under all circumstances,
including the following circumstances:
(i) the failure of any Company or any other Person to comply with the conditions
set forth in Sections 2.1, 2.6, 2.7 or 7.2 or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being acknowledged that
such conditions are not required for the making of a Revolving Credit Loan under
Section 2.10(d);
(ii) any lack of validity or enforceability of any Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right which any
Company or any Bank may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Agent or other bank or any other Person or, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any Company or
Subsidiaries of a Company and the beneficiary for which any Letter of Credit was
procured);
(iv) any draft, demand, certificate or other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Agent under any Letter of Credit against presentation of a
demand, draft or certificate or other document which does not comply with the
terms of such Letter of Credit;
(vi) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of any Company or Subsidiaries
of any Company;
(vii) any breach of this Agreement or any other Senior Loan Document by any
party thereto;
(viii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing;
(ix) the fact that an Event of Default or a Potential Default shall have
occurred and be continuing; or
(x) the Revolving Credit Expiration Date shall have passed or this Agreement or
the Revolving Credit Commitments hereunder shall have been terminated (in which
case the Borrower shall be required to immediately reimburse the Agent and the
Banks for the amount of any drawing funded by the Banks).
(h) INDEMNITY. In addition to amounts payable as provided in Section 10.5, the
Borrower hereby agrees to protect, indemnify, pay and save harmless the Agent
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which the
Agent may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of any Letter of Credit, other than as a result of (A) the gross
negligence or willful misconduct of the Agent as determined by a final judgment
of a court of competent jurisdiction or (B) subject to the following clause
(ii), the wrongful dishonor by the Agent of a proper demand for payment made
under any Letter of Credit or (ii) the failure of the Agent to honor a drawing
under any such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "GOVERNMENTAL
ACTS").
(i) LIABILITY FOR ACTS AND OMISSIONS. As between the Borrower and the Agent, the
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Agent shall not be
responsible for : (i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for an issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such 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; (iii) failure
of the beneficiary of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Agent, including any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of the Agent's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth above, any action taken or omitted by the Agent under or in
connection with the Letters of Credit issued by it or any documents and
certificates delivered thereunder, if taken or omitted in good-faith, shall not
put the Agent under any resulting liability to the Borrower.
2.11 USE OF PROCEEDS.
---------------
The proceeds of the Revolving Credit Loans shall be used for lawful
purposes in accordance with the second recital clause above.
2.12 OPTION OF BORROWER TO TERM-OUT THE REVOLVING CREDIT LOANS UPON
---------------------------------------------------------------
REVOLVING CREDIT EXPIRATION DATE.
--------------------------------
The Borrower may elect, by written request which shall be delivered
ten (10) days prior to the Revolving Credit Expiration Date, to repay all
amounts or a portion thereof of principal outstanding under the Revolving Credit
Loans due and payable on the Revolving Credit Expiration Date in four (4) equal
quarterly installments which such installments shall be made on the second
Business Day of each April, July, October and January following the Revolving
Credit Expiration Date (the "TERM-OUT OPTION"). If the Borrower elects the
Term-Out Option, it shall deliver to each Bank, on or before the Revolving
Credit Expiration Date a term note for its Ratable Share and setting forth such
obligation of the Borrower (the "TERM NOTE"). Additionally, the Borrower hereby
agrees to execute such amendments and modifications to the Loan Documents, prior
to the Revolving Credit Expiration Date, as Agent shall reasonably request to
evidence and govern the Term Loan; provided that no amendments or modifications
to the Loan Documents shall be made with respect to any covenants of the
Borrower or to the rate of interest under any Interest Rate Option.
2.13 EXTENSION BY BANKS OF THE REVOLVING CREDIT EXPIRATION DATE.
----------------------------------------------------------
(a) REQUESTS; APPROVAL BY ALL BANKS OR REQUIRED BANKS; OPTIONAL CONVERSION
-----------------------------------------------------------------------
TO TERM LOANS FOR NON-AGREEING BANKS
- ------------------------------------
(i) No earlier than sixty (60) days and no later than forty-five (45) days prior
to the then applicable Revolving Credit Expiration Date, the Borrower may
request a 364-day extension of the Revolving Credit Expiration Date by written
notice to the Agent. Agent shall promptly notify the Banks of such request. No
later than thirty (30) days prior to the then applicable Revolving Credit
Expiration Date, each Bank shall respond to the Agent in writing as to whether
or not it agrees to the Borrower's request for such extension; provided,
however, that the failure of any Bank to respond within such time period shall
not in any manner constitute an agreement by such Bank to extend the Revolving
Credit Expiration Date.
(ii) If all Banks elect to extend the then applicable Revolving Credit
Expiration Date, the Agent shall so notify the Banks and the Borrower promptly,
but in no event earlier than thirty (30) days prior to the then applicable
Revolving Credit Expiration Date, that such Revolving Credit Expiration Date
shall be extended for an additional period of 364 days. Borrower hereby agrees
to execute such amendments and modifications to the Loan Documents, prior to the
extension of the Revolving Credit Expiration Date, as Agent shall reasonably
request to evidence and govern the extension of such date.
(iii) In the event that Banks with at least eighty percent (80%) of the
Commitments (the "SUPERMAJORITY BANKS"), but less than all of the Banks, shall
agree to an extension of the Revolving Credit Expiration Date in accordance with
this Section 2.13(a)(i), the Agent shall so notify the Banks and the Borrower
promptly, but in no event earlier than thirty (30) days prior to the then
applicable Revolving Credit Expiration Date, and: (i) the Revolving Credit
Commitments of those Banks not agreeing to an extension of the Revolving Credit
Expiration Date (the "NON-AGREEING BANKS") shall be terminated on the Revolving
Credit Expiration Date (without giving effect to the extension thereof) and all
Loans owing to the Non-Agreeing Banks together with all interest thereon and
costs and expenses related thereto shall be due and payable on such Revolving
Credit Expiration Date except to the extent that (A) the Borrower shall
substitute for such Non-Agreeing Bank another financial institution pursuant to
a duly executed Assignment and Assumption Agreement and in accordance with the
terms and conditions of Section 11.11 (except that such financial institution
shall only be assigned the Revolving Credit Loan and Revolving Credit Commitment
of such Non-Agreeing Bank) or (B) Borrower has elected, by written notice
received by the Agent no later than ten (10) days prior to the Revolving Credit
Expiration Date, to convert all or any portion of the Loans of the Non-Agreeing
Banks to Term Loans in accordance with Section 2.12 and, to the extent that less
than the full aggregate amount of Loans of the Banks are to be so converted,
then the Borrower shall convert each and every Non-Agreeing Bank's Loans on a
PRO RATA basis, (ii) the Revolving Credit Commitments of the Banks agreeing to
an extension of the Revolving Credit Expiration Date (the "AGREEING BANKS")
shall be extended for an additional period of 364 days, and (iii) none of the
Agreeing Banks shall be required to increase its Revolving Credit Commitment.
The Borrower hereby agrees to execute such amendments and modifications to the
Loan Documents, prior to any extension of the Revolving Credit Expiration Date,
as Agent shall reasonably request to evidence and govern the extension of such
date and the Term Loans, if any, arising under this Section 2.13.
(b) FAILURE OF SUPERMAJORITY BANKS TO EXTEND; OPTIONAL CONVERSION TO TERM
------------------------------------------------------------------------
LOAN.
----
In the event that less than the Supermajority Banks shall agree to
an extension of the Revolving Credit Expiration Date in accordance with Section
2.13, the Agent shall promptly so notify the Borrower and the Banks, the
Revolving Credit Commitments shall be terminated on the Revolving Credit
Expiration Date, and all Loans, together with all interest thereon and costs and
expenses related thereto, shall be due and payable on the Revolving Credit
Expiration Date, unless the Borrower has elected, by written notice received by
the Agent no later than ten (10) days prior to the Revolving Credit Expiration
Date (which notice Agent shall promptly forward to the Banks), to convert all or
a portion of the Loans outstanding on the Revolving Credit Expiration Date to
Term Loans in accordance with Section 2.12. Any failure of the Agent or any Bank
to notify any party hereto that the Revolving Credit Expiration Date will not be
extended shall not constitute a commitment or agreement of any nature to extend
such date.
2.14 RELEASE OF COLLATERAL.
---------------------
Upon full, final and unconditional release of the Collateral by the
holders of the Senior Notes as evidenced in a manner satisfactory to the Agent,
the Agent and the Banks will release their Prior Security Interest in the
Collateral, provided however that the Borrower and the other Loan Parties, as
applicable covenant and agree that they shall (i) continue to maintain
compliance at all times with all of the covenants and conditions of this
Agreement, including without limitation the covenant contained in Section 8.2(f)
(ii) enter into any reasonable amendments to this Agreement required to evidence
such release and (iii) enter into a guaranty agreement in form and substance
reasonably acceptable to the Agent to guaranty the Loans and all of the
obligations of the Borrower and the other Loan Parties under this Agreement and
any of the other Senior Loan Documents.
3. [Intentionally Omitted]
4. INTEREST RATES
4.1 INTEREST RATE OPTIONS.
---------------------
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Loans as selected from one (1) of the three (3) Interest
Rate Options set forth below, it being understood that subject to the provisions
of this Agreement, the Borrower may select different Interest Rate Options and
different Euro-Rate Interest Periods to apply simultaneously to the Loans
comprising different Borrowing Tranches and may convert to or renew one or more
Interest Rate Options with respect to all or any portion of the Loans comprising
any Borrowing Tranche; PROVIDED that there shall not be at any one time
outstanding more than seven (7) Borrowing Tranches in the aggregate among all
the Loans accruing interest at the Euro-Rate Option, PROVIDED, FURTHER, that
only the Base Rate Option or the PNC Quoted Rate Option shall be applicable with
respect to Swing Loans, PROVIDED, FURTHER, that the PNC Quoted Rate Option shall
not be applicable with respect to any Loans other than the Swing Loans. The
Agent's determination of a rate of interest and any change therein shall in the
absence of manifest error be conclusive and binding upon all parties hereto. If
at any time the designated rate applicable to any Loan made by the Bank exceeds
such Bank's highest lawful rate, the rate of interest on such Bank's Loan shall
be limited to such Bank's highest lawful rate; PROVIDED, that the portion of
interest which exceeds the amount such Bank can lawfully receive and, thus, is
not paid to such Bank shall be due and payable upon the following Interest
Payment Date(s) to the extent lawfully permissible.
(a) BASE RATE OPTION: A fluctuating rate per annum (computed on the basis of a
year of (i) 365 or 366 days, as the case may be, and actual days elapsed, for
Loans based on the Agent's prime rate or (ii) 360 days and actual days elapsed
for Loans based on the Federal Funds Effective Rate) equal to the Base Rate),
such interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate.
(b) EURO-RATE OPTION: A rate per annum (computed on a basis of a year of 360
days and actual days elapsed) equal to (i) the Euro-Rate PLUS forty (40) basis
points, or (ii) after election by the Borrower of the Term-Out Option, the
Euro-Rate PLUS, if the initial principal amount of the Term Loans is equal to or
greater than $75,000,000, seventy-five (75) basis points and, if the initial
principal amount of the Term Loans is less than $75,000,000, sixty-two and
one-half (62-1/2%) basis points (which, in either case, includes all fees
charged in connection with the Term Loans under this Agreement except the
Agent's Fee).) The Euro-Rate shall be adjusted automatically with respect to any
Euro-Rate Portion outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage notwithstanding that such effective date occurs
during a Euro-Rate Interest Period. The Agent shall give prompt notice to the
Borrower of the Euro-Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive.
(b-1).PNC QUOTED RATE OPTION: A fixed rate per annum computed on the
basis of a year of 365 or 366 days, as the case may be, equal to such interest
rate as offered by PNC pursuant to Section 2.6(b) hereof, such interest rate to
remain in effect from the time the PNC Quoted Rate Option is elected until 3:00
p.m. (Pittsburgh time) on the following Business Day.
(c) RATE QUOTATIONS. The Borrower may call the Agent on or before the date on
which a Loan Request is to be delivered to receive an indication of the rates
then in effect, but it is acknowledged that such indication shall not be binding
on the Agent or the Banks nor affect the rate of interest which thereafter is
actually in effect when the election is made.
4.2 EURO-RATE INTEREST PERIODS.
--------------------------
At any time when the Borrower shall select, convert to or renew the
Euro-Rate Option to apply to any Revolving Credit Loan, the Borrower shall
notify the Agent thereof at least three (3) Business Days prior to the effective
date of such Euro-Rate Option by delivering a Loan Request. The notice shall
select a Euro-Rate interest period during which such Interest Rate Option shall
apply, such periods to be one (1), two (2), three (3) or six (6) months (the
"EURO-RATE INTEREST PERIODS"); PROVIDED that:
(a) any Euro-Rate Interest Period which would otherwise end on a date which is
not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which case such Euro-Rate
Interest Period shall end on the next preceding Business Day;
(b) any Euro-Rate Interest Period which begins on the last Business Day of a
calendar month for which there is no numerically corresponding Business Day in
the subsequent calendar month during which such Interest Period is to end shall
end on the last Business Day of such subsequent month;
(c) the Euro-Rate Portion for each Euro-Rate Interest Period shall be in
integral multiples of $50,000 and not less than $5,000,000;
(d) the Borrower shall not select, convert to or renew a Euro-Rate Interest
Period for any portion of the Revolving Credit Loans that would end after the
Revolving Credit Expiration Date; and
(e) in the case of the renewal of the Euro-Rate Option at the end of a Euro-Rate
Interest Period, the first day of the new Euro-Rate Interest Period shall be the
last day of the preceding Euro-Rate Interest Period, without duplication in
payment of interest for such day.
4.3 INTEREST AFTER DEFAULT.
----------------------
To the extent permitted by Law, upon the occurrence and during the
continuance of an Event of Default, after any principal of or interest on any
Loan or any fee or other amounts hereunder shall have become due and payable by
its terms or by acceleration, declaration or otherwise, and after expiration of
any applicable grace period, such principal, interest, fee or other amount shall
bear interest for each day thereafter until paid in full (before and after
judgment) at a rate per annum which shall be equal to two percent (2%) above the
rate of interest otherwise applicable with respect to such amount or two percent
(2%) above the Base Rate Option if no rate of interest is otherwise applicable,
payable on demand. The Borrower acknowledges that such increased interest rate
reflects, among other things, the fact that such Loans or other amounts have
become a substantially greater risk given their default status and that the
Banks are entitled to additional compensation for such risk.
4.4 EURO-RATE UNASCERTAINABLE.
-------------------------
If
(a) on any date on which a Euro-Rate would otherwise be determined, the Agent
shall have determined (which determination shall be conclusive absent manifest
error) that:
(i) adequate and reasonable means do not exist for ascertaining such
Euro-Rate, or
(ii) a contingency has occurred which materially and adversely affects the
London interbank market,
(b) at any time any Bank shall have determined (which determination shall be
conclusive absent manifest error) that:
(i) the making, maintenance or funding of any Loan to which the Euro-Rate Option
applies has been made impracticable or unlawful by compliance by such Bank in
good faith with any Law or any interpretation or application thereof by any
Official Body or with any request or directive of any such Official Body
(whether or not having the force of Law),
(ii) the Euro-Rate Option will not adequately and fairly reflect the cost to
such Bank of the establishment or maintenance of any Loan, or if any Bank
determines after making all reasonable efforts that deposits of the relevant
amount in Dollars for the relevant Euro-Rate Interest Period for a Loan to which
the Euro-Rate Option applies are not available to such Bank in the London
interbank market, then, in the case of any event specified in subsection (a)
above, the Agent shall promptly so notify the Banks and the Borrower thereof,
and in the case of an event specified in subsection (b) above, such Bank shall
promptly so notify the Agent and attach a certificate to such notice as to the
specific circumstances of such notice and the Agent shall promptly send copies
of such notice and certificate to the other Banks and the Borrower. Upon such
date as shall be specified in such notice (which shall not be earlier than the
date such notice is given) the obligation of (A) the Banks in the case of such
notice given by the Agent, or (B) such Bank in the case of such notice given by
such Bank, to allow the Borrower to select, convert to or renew the Euro-Rate
Option shall be suspended until the Agent shall have later notified the
Borrower, or such Bank shall have later notified the Agent, of the Agent's or
such Bank's, as the case may be, determination (which determination shall be
conclusive absent manifest error) that the circumstances giving rise to such
previous determination no longer exist. If at any time the Agent makes a
determination under subsection (a) of this Section 4.4 or any Bank notifies the
Agent of a determination under subsection (b) of this Section 4.4 and, in either
case, the Borrower has previously notified the Agent of its selection of,
conversion to or renewal of the Euro-Rate Option and such Euro-Rate Option has
not yet gone into effect, such notification shall be deemed to provide for
selection of, conversion to or renewal of the Base Rate Option otherwise
available with respect to such Loans. If any Bank notifies the Agent of a
determination under subsection (b) of this Section 4.4, the Borrower shall,
subject to the Borrower's indemnification obligations under Section 5.5(b), as
to any Loan of the Bank to which the Euro-Rate Option applies, on the date
specified in such notice either convert such Loan to the Base Rate Option
otherwise available with respect to such Loan or prepay such Loan in accordance
with Section 5.4. Absent due notice from the Borrower of conversion or
prepayment, such Loan shall automatically be converted to the Base Rate Option
otherwise available with respect to such Loan upon such specified date.
4.5 SELECTION OF INTEREST RATE OPTIONS.
----------------------------------
(a) If the Borrower fails to select a Euro-Rate Interest Period in accordance
with the provisions of Section 4.2 in the case of renewal of the Euro-Rate
Portion, the Borrower shall be deemed to have converted such Loan or option
thereof to the Base Rate Option otherwise available with respect to such Loans,
commencing upon the last day of that Euro-Rate Interest Period. If an Event of
Default shall occur and be continuing, the Agent shall limit the Borrower to the
Base Rate Option hereunder; PROVIDED, HOWEVER, that, unless the Loans have been
accelerated hereunder, such limitation with respect to the Euro-Rate Portion
shall not be effective until the expiration of any applicable Euro-Rate Interest
Period.
(b) If the Borrower fails to select an Interest Rate Option in accordance with
the provisions of Section 4.1 for any Swing Loan to which the PNC Quoted Rate
applies before the PNC Quoted Rate Option expires, the Borrower shall be deemed
to have converted such loan to the Base Rate Option otherwise available with
respect to such Swing Loan, commencing immediately upon the expiration of the
PNC Quoted Rate Option.
5. PAYMENTS
5.1 PAYMENTS.
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All payments and prepayments to be made in respect of principal,
interest, Facility Fees, Usage Fees, Letter of Credit Fees, Letter of Credit
Fronting Fees, Agent's Fees or other amounts due from the Borrower hereunder
shall be payable prior to 11:00 a.m. Pittsburgh time (or 3:00 p.m. Pittsburgh
time, in the event payments are to be made using the proceeds of Loans to be
made on such date), on the date when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrower,
and without set-off, counterclaim or other deduction of any nature, and an
action therefor shall immediately accrue. Such payments shall be made to the
Agent at the Principal Office for the account of PNC with respect to the Swing
Loans and the ratable accounts of the Banks with respect to the Revolving Credit
Loans in U.S. Dollars and in immediately available funds, and the Agent shall
promptly distribute such amounts to the Banks in immediately available funds,
subject to the provisions of Section 5.6; PROVIDED that in the event payments
are received by 11:00 a.m. Pittsburgh time by the Agent with respect to the
Revolving Credit Loans on the Settlement Date and such payments are not
distributed to the Banks on the same day received by the Agent, the Agent shall
pay the Banks the Federal Funds Effective Rate with respect to the amount of
such payments for each day held by the Agent and not distributed to the Banks.
The Agent's and each Bank's statement of account, ledger or other relevant
record shall, in the absence of manifest error, be conclusive as the statement
of the amount of principal of and interest on the Loans and other amounts owing
under this Agreement and shall be deemed an "account stated."
5.2 PRO RATA TREATMENT OF THE BANKS.
-------------------------------
Each borrowing, and each selection of, conversion to or renewal of
any Interest Rate Option and each payment or prepayment by the Borrower with
respect to principal, interest, Facility Fees, Usage Fees, Letter of Credit
Fees, Letter of Credit Fronting Fees or other fees (except for the Agent's Fees
and the fees set forth in the second sentence of Section 2.10(c)) or amounts due
from the Borrower hereunder to the Banks with respect to the Revolving Credit
Loans, shall (except as provided in Section 4.4(b), 5.4 or 5.5) be made in
proportion to the Revolving Credit Loans outstanding from each Bank and, if no
Revolving Credit Loans are then outstanding, in proportion to the Ratable Share
of each Bank.
5.3 INTEREST PAYMENT DATES.
----------------------
Interest on Loans to which the Base Rate Option or the PNC Quoted
Rate Option applies shall be due and payable in arrears on the second Business
Day of each April, July, October and January after the date hereof and on the
Revolving Credit Expiration Date (with respect to Revolving Credit Loans) and
upon any earlier acceleration of the Notes. Interest on the Euro-Rate Portion
shall be due and payable on the last day of each Euro-Rate Interest Period and,
if any such Euro-Rate Interest Period is longer than three (3) months, also on
the second Business Day after the end of the third month during such period and
on the Revolving Credit Expiration Date (with respect to Revolving Credit Loans)
and upon any earlier acceleration of the Notes.
5.4 VOLUNTARY PREPAYMENTS.
---------------------
(a) The Borrower shall have the right at its option from time to time to prepay
the Loans in whole or part without premium or penalty (except as provided in
sub-section (b) below or in Section 5.5):
(i) at any time with respect to any Swing Loan or any other Loan to which
the Base Rate Option applies;
(ii) on the last day of the applicable Euro-Rate Interest Period with respect to
Revolving Credit Loans to which the Euro-Rate Option applies; and
(iii) on the date specified in a notice by any Bank pursuant to Section 4.4(b)
with respect to any Revolving Credit Loan to which the Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Loans, it
shall provide a prepayment notice to the Agent at least one (1) Business Day
prior to the date of prepayment of Revolving Credit Loans or no later than 3:00
p.m. Pittsburgh time on the date of prepayment of Swing Loans setting forth the
following information:
(x) the date, which shall be a Business Day, on which the
proposed prepayment is to be made; and
(y) the total principal amount of such prepayment, which
shall not be less than $100,000 for any Swing Loan or
$1,000,000 for any Revolving Credit Loan.
All prepayment notices shall be irrevocable. The principal amount of
the Loans to which the Euro-Rate Option applies for which a prepayment notice is
given, together with interest on such principal amount and any related fees
shall be due and payable on the date specified in such prepayment notice as the
date on which the proposed prepayment is to be made. The principal amount of the
Loans to which the Base Rate Option applies for which a prepayment notice is
given shall be due and payable on the date specified in such prepayment notice
as the date on which the proposed prepayment is made; but interest on such
principal amount and any related fees shall be due and payable on the next
scheduled Interest Payment Date. All prepayments permitted pursuant to this
Section 5.4(a) shall be applied to the unpaid installments of principal of the
Loans in the inverse order of scheduled maturities. Unless otherwise specified
by the Borrower with respect to prepayments of the Euro-Rate Portion permitted
under this Section 5.4(a)(ii) or (iii) above, all prepayments shall be applied
first to the Base Rate Portion and then to the Euro-Rate Portion, subject to
Section 5.5(b).
(b) In the event any Bank (i) gives notice under Section 4.4(b) or Section
5.5(a), (ii) does not fund Loans because the making of such Loans would
contravene any Law applicable to such Bank pursuant to Section 7.2, (iii) does
not approve any action as to which consent of the Required Banks is requested by
the Borrower and obtained hereunder, or (iv) becomes subject to the control of
an Official Body (other than normal and customary supervision), then the
Borrower shall have the right at its option, with the consent of the Agent,
which shall not be unreasonably withheld, to prepay the Loans of such Bank in
whole together with all interest accrued thereon, within ninety (90) days after
(w) receipt of such Bank's notice under Section 4.4(b) or 5.5(a), (x) the date
such Bank has failed to fund Loans pursuant to Section 7.2 because the making of
such Loans would contravene Law applicable to such Bank, (y) the date of
obtaining the consent which such Bank has not approved, or (z) the date such
Bank became subject to the control of an Official Body, as applicable; PROVIDED
that the Borrower shall also pay to such Bank at the time of such prepayment any
amounts required under Section 5.4(a) and Section 5.5 and any accrued interest
due on such amount and any related fees; PROVIDED, HOWEVER, that the Revolving
Credit Commitment of such Bank shall be provided by one or more of the remaining
Banks or a replacement bank acceptable to the Agent and the Borrower in the
exercise of their reasonable discretion; PROVIDED, FURTHER, the remaining Banks
shall have no obligation hereunder to increase their Revolving Credit
Commitments. Notwithstanding the foregoing, the Agent may only be replaced in
accordance with Section 10.14 and the Agent must at all times be a Bank
hereunder.
5.5 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
------------------------------------------------
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES, RESERVES, CAPITAL
ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law, guideline or interpretation or
any change in any Law, guideline or interpretation or application thereof by any
Official Body charged with the interpretation or administration thereof or
compliance with any request or directive (whether or not having the force of
Law) of any central bank or other Official Body:
(i) subjects any Bank to any tax or changes the basis of taxation with respect
to this Agreement, the Notes, the Loans or payments by the Borrower of
principal, interest, Facility Fees, Usage Fees, Letter of Credit Fees, Letter of
Credit Fronting Fees, Agent's Fees or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on the overall net income of such
Bank),
(ii) imposes, modifies or deems applicable any reserve, special deposit or
similar requirement against credits or commitments to extend credit extended by,
or assets (funded or contingent) of, deposits with or for the account of, or
other acquisitions of funds by, any Bank, or
(iii) imposes, modifies or deems applicable any capital adequacy or similar
requirement (A) against assets (funded or contingent) of, or credits or
commitments to extend credit extended by, any Bank, or (B) otherwise applicable
to the obligations of any Bank under this Agreement, and the result of any of
the foregoing is to increase the cost to, reduce the income receivable by, or
impose any expense (including loss of margin) upon any Bank with respect to this
Agreement, the Notes or the making, maintenance or funding of any part of the
Loans (or, in the case of any capital adequacy or similar requirement, to have
the effect of reducing the rate of return on the capital of any Bank or any
Bank's parent, taking into consideration the customary policies of any Bank or
any Bank's parent with respect to capital adequacy) by an amount which such Bank
in its sole discretion deems to be material, such Bank shall from time to time
notify in writing the Borrower and the Agent of the amount determined in good
faith (using any averaging and attribution methods employed in good faith) by
such Bank (which determination shall be conclusive, absent manifest error) to be
necessary to compensate such Bank for such increase in cost, reduction of income
or additional expense. Such notice shall set forth in reasonable detail the
basis for such determination. Such amount shall be due and payable by the
Borrower to such Bank ten (10) Business Days after such notice is given.
(b) INDEMNITY. In addition to the compensation required by subsection (a) of
this Section 5.5, the Borrower shall indemnify each Bank against all
liabilities, losses or expenses (including loss of margin and any loss or
expense incurred in liquidating or employing deposits from third parties,
including any loss or expense incurred in connection with funds acquired by a
Bank to fund or maintain Loans subject to the Euro-Rate Option) which such Bank
sustains or incurs hereunder, including:
(i) payment, prepayment, conversion or renewal of any Loan to which the
Euro-Rate Option applies on a day other than the last day of the corresponding
Euro-Rate Interest Period (whether or not such payment, prepayment, conversion
or renewal is mandatory, voluntary or automatic and whether or not such payment
or prepayment is then due);
(ii) attempt by the Borrower to revoke (expressly, by later inconsistent notices
or otherwise) in whole or part any notice relating to Loan Requests under
Section 2.6 or voluntary prepayments under Section 5.4; or
(iii) default by the Borrower in the performance or observance of any covenant
or condition contained in this Agreement or any other Senior Loan Document,
including any failure of the Borrower to pay when due (by acceleration or
otherwise) any principal, interest, Facility Fees, Usage Fees, Letter of Credit
Fees, Letter of Credit Fronting Fees, Agent's Fees or any other amount due
hereunder.
Notwithstanding the foregoing, nothing in the foregoing Section
5.5(b)(i), (ii) or (iii) shall be construed to permit the Borrower to engage in
any action otherwise prohibited hereunder. If any Bank sustains or incurs any
such loss or expense, it shall from time to time notify the Borrower of the
amount determined in good faith by such Bank (which determination shall be
conclusive absent manifest error and may include such assumptions, allocations
of costs and expenses and averaging or attribution methods as such Bank shall
deem reasonable) to be necessary to indemnify such Bank for such loss or
expense. Such notice shall set forth in writing in reasonable detail the basis
for such determination. Such amount shall be due and payable by the Borrower to
such Bank ten (10) Business Days after such notice is given.
5.6 SETTLEMENT DATE PROCEDURES.
--------------------------
In order to minimize the transfer of funds between the Banks and the
Agent, the Borrower may borrow, repay and reborrow Swing Loans and PNC may make
Swing Loans as provided in Section 2.1(b) during the period between Settlement
Dates. Not later than 12:00 p.m. Pittsburgh time on each Settlement Date, the
Agent shall notify each Bank of its Ratable Share of the Loans (including both
the Swing Loans made by the Agent and the Revolving Credit Loans made by the
Banks). Prior to 3:00 p.m. Pittsburgh time on such Settlement Date, each Bank
shall pay to the Agent the amount equal to the positive difference, if any,
between its Ratable Share of the Revolving Credit Loans and Swing Loans and its
Revolving Credit Loans, and the Agent shall pay to each Bank its Ratable Share
of all payments made by the Borrower to the Agent with respect to the Revolving
Credit Loans. The Agent shall also effect settlement in accordance with the
foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans
and may at its option effect settlement on any other Business Day. These
settlement procedures are established solely as a matter of administrative
convenience, and nothing contained in this Section 5.6 shall relieve the Banks
of their obligations to fund Revolving Credit Loans on dates other than a
Settlement Date pursuant to Section 2.8. The Agent may at any time at its option
for any reason whatsoever require each Bank to pay immediately to the Agent such
Bank's Ratable Share of the outstanding Revolving Credit Loans and Swing Loan;
PROVIDED the principal amount of such Bank's Revolving Credit Loans shall not
exceed its Revolving Credit Commitment MINUS its Ratable Share of the Letter of
Credit Outstanding; PROVIDED, FURTHER, nothing in this Section 5.6 shall require
the Banks to fund any Revolving Credit Loan bearing interest at the Euro-Rate on
a date other than in accordance with Section 2.7(a).
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrower represents and warrants to the Agent and each of the
Banks that:
(a) ORGANIZATION AND QUALIFICATION. The Borrower is a corporation, duly
organized, validly existing and in good standing under the laws of Pennsylvania;
each Subsidiary of the Borrower is duly organized in the form of organization
stated on SCHEDULE 6.1(C) and is validly existing and in good standing under the
laws of its jurisdiction of organization; each Company has the lawful power to
own or lease its properties and to engage in the business it presently conducts
or proposes to conduct; and each Company is duly licensed or qualified and in
good standing in each jurisdiction wherein the property owned or leased by it or
the nature of the business transacted by it or both makes such licensing or
qualification necessary.
(b) CAPITALIZATION AND OWNERSHIP. The authorized shares of capital stock of the
Borrower consist of 100,000,000 Preferred Shares, none of which is issued and
outstanding, 20,000 Class A Common Shares of which 9,000 shares are issued and
outstanding and, as of the close of business on January 16, 2001, 900,000,000
Class B Common Shares, of which 129,505,456 shares are issued and 116,950,809
shares are outstanding. All issued and outstanding shares have been validly
issued and are fully paid and nonassessable.
(c) SUBSIDIARIES. SCHEDULE 6.1(C) sets forth the name of each of the Borrower's
Subsidiaries, the form and jurisdiction of organization of each, the owner(s) of
its authorized capital stock, and the percentage of issued and the outstanding
shares or interests (referred to herein as the "SUBSIDIARY SHARES") of each.
Each Company has good and marketable title to all of the Subsidiary Shares it
purports to own, free and clear in each case of any Lien except the pledge of
the Subsidiary Shares pursuant to the Pledge Agreement. All Subsidiary Shares
have been validly issued and are fully paid and nonassessable. There are no
options, warrants or other rights outstanding to purchase any such shares.
(d) POWER AND AUTHORITY. The Borrower has full power to enter into, execute,
deliver and carry out this Agreement and the other Senior Loan Documents to
which it is a party, to incur the Indebtedness contemplated by the Senior Loan
Documents and to perform its obligations under the Senior Loan Documents to
which it is a party and all such actions have been duly authorized by all
necessary proceedings on its part. At the time of execution, the Grantors, the
Pledgors and the Companies had full power to enter into, execute, deliver and
carry out the Security Agreement, the Pledge Agreement and the Intercompany
Subordination Agreement, respectively, and to perform their respective
obligations thereunder and all such actions had been duly authorized by all
necessary proceedings on their respective parts and the Grantors, the Pledgors
and the Companies continue to have the full power and authority to perform their
respective obligations under the Security Agreement, the Pledge Agreement and
the Intercompany Subordination Agreement, respectively and no actions have been
taken to rescind the same and each of the Security Agreement, the Pledge
Agreement and the Intercompany Subordination Agreement, respectively continues
in full force and effect.
(e) VALIDITY AND BINDING EFFECT. This Agreement has been and each other Senior
Loan Document, when duly executed and delivered by the Loan Parties which are
parties thereto, will have been duly and validly executed and delivered by the
Loan Parties. This Agreement constitutes, and the Security Agreement, the Pledge
Agreement, the Intercompany Subordination Agreement and each other Senior Loan
Document when duly executed and delivered by the Loan Parties pursuant to the
provisions hereof or thereof will constitute, legal, valid and binding
obligations of the Loan Parties, enforceable against them in accordance with
their respective terms, except to the extent that enforceability of any of the
foregoing Senior Loan Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting the enforceability of
creditors' rights generally or limiting the right of specific performance.
(f) NO CONFLICT. Neither the execution and delivery of this Agreement or the
other Senior Loan Documents by the Loan Parties nor the consummation of the
transactions herein or therein contemplated or compliance with the terms and
provisions hereof or thereof by them will conflict with, constitute a default
under or result in any breach of the terms and conditions of the declaration of
trust, articles of incorporation, bylaws, partnership agreement or equivalent
documents of any Loan Party or of any Law or of any material agreement,
instrument, order, writ, judgment, injunction or decree to which any Loan Party
is a party or by which it is bound or to which it is subject, or will result in
the creation or enforcement of any Lien whatsoever upon any property (now or
hereafter acquired) of any Loan Party (other than Liens granted under the Senior
Loan Documents); PROVIDED that foreclosure on the Pledged Collateral or other
transfer of the Pledged Collateral under the Pledge Agreement without obtaining
the approvals described in Section 9(b) of the Pledge Agreement may result in
the termination of contracts under the Investment Company Act.
(g) LITIGATION. There are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower, threatened against any of the
Companies at law or in equity before any Official Body which individually or in
the aggregate may result in any Material Adverse Change. None of the Companies
is in violation of any order, writ, injunction or any decree of any Official
Body which may result in any Material Adverse Change.
(h) TITLE TO PROPERTIES. Each of the Companies has good and marketable title to
or valid leasehold interest in all properties, assets and other rights which it
purports to own or lease or which are reflected as owned or leased on its books
and records, free and clear of all liens and encumbrances except Permitted
Liens, and subject to the terms and conditions of the applicable leases. The
tangible and intangible personal property relating to facilities and computers
of the Companies (including the leases, computer software and aircraft) are held
by one or more wholly owned Pledged Subsidiaries. All leases of property are in
full force and effect and, except as set forth on SCHEDULE 6.1(M), such leases
do not require any consent to consummate the transactions contemplated hereby or
to foreclose on the Pledged Shares.
(i) FINANCIAL STATEMENTS. The Borrower has delivered to the Agent copies of the
audited consolidated financial statements for the Borrower and its Consolidated
Subsidiaries for fiscal year 1999 (the "AUDITED STATEMENTS"). In addition, the
Borrower has delivered to the Agent copies of the unaudited interim financial
statements for the Borrower and its Consolidated Subsidiaries for and as of the
end of the fiscal quarter ended September 30, 2000 (the "INTERIM STATEMENTS")
(the Audited and Interim Statements being collectively referred to as the
"HISTORICAL STATEMENTS"). The Historical Statements are correct and complete and
fairly represent the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as of their dates and the consolidated results of
operations for the fiscal periods then ended and have been prepared in
accordance with GAAP consistently applied, subject (in the case of the Interim
Statements) to normal year-end audit adjustments. None of the Companies has any
significant liabilities, contingent or otherwise, or material forward or
long-term commitments that are not disclosed in the Historical Statements or in
the notes thereto, and except as disclosed therein there are no unrealized or
anticipated losses from any commitments of any of the Companies which may cause
a Material Adverse Change. Since December 31, 1999, there has been no Material
Adverse Change.
(j) MARGIN STOCK. None of the Companies engages or intends to engage
principally, or as one of its important activities, in the business of extending
credit for the purpose, immediately, incidentally or ultimately, of purchasing
or carrying margin stock (within the meaning of Regulation U). No part of the
proceeds of any Loan has been or will be used, immediately, incidentally or
ultimately, to purchase or carry any margin stock (except investments in Funds
in accordance with ordinary business operations), or to extend credit to others
for the purpose of purchasing or carrying any margin stock or to refund
Indebtedness originally incurred for such purpose, or for any purpose which
entails a violation of or which is inconsistent with the provisions of the
regulations of the Board of Governors of the Federal Reserve System. None of the
Companies holds or intends to hold margin stock (including shares in the Funds)
such that the aggregate current market value (as defined in Regulation U) of all
such margin stock exceeds twenty-five percent (25%) of the value (as determined
by any reasonable method) of the consolidated assets of the Companies.
(k) FULL DISCLOSURE. Neither this Agreement nor any Senior Loan Document, nor
any certificate, statement, agreement or other documents furnished to the Agent
or any Bank in connection herewith or therewith contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein, in light of the circumstances under
which they were made, not misleading. There is no fact known to any of the
Companies which materially adversely affects the business, property, assets,
financial condition or results of operations of the Companies taken as a whole,
which has not been set forth in this Agreement or in the other agreements,
documents, certificates and statements furnished in writing to the Agent and the
Banks prior to or at the date hereof in connection with the transactions
contemplated hereby.
(l) TAXES. All federal, state, local and other tax returns required to have been
filed with respect to the Companies have been filed, and payment or adequate
provision has been made for the payment of all taxes, fees, assessments and
other governmental charges which have or may become due pursuant to said returns
or to assessments received except to the extent that such taxes, fees,
assessments and other charges are being contested in good faith by appropriate
proceedings diligently conducted and for which such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made. There are no agreements or waivers extending the statutory period of
limitations applicable to any federal income tax return of the Companies for any
period except with respect to the federal income tax return of the Companies for
1996 for which the associated statutory period of limitations was extended until
December 31, 2001.
(m) CONSENTS AND APPROVALS. No consent, approval, exemption, order or
authorization of, or a registration or filing with, any Official Body or any
other person is required by any Law or any agreement in connection with the
execution, delivery and carrying out of this Agreement and the other Senior Loan
Documents by the Loan Parties, except for the filing of financing statements in
the state and county filing offices as listed on Schedule 6.1(m) attached
hereto, all of which shall have been obtained or made on or prior to the Closing
Date unless otherwise indicated on SCHEDULE 6.1(M), PROVIDED that foreclosure on
the Pledged Collateral or other transfer of the Pledged Collateral under the
Pledge Agreement may necessitate obtaining the approvals described in Section
9(b) of the Pledge Agreement.
(n) NO EVENT OF DEFAULT; COMPLIANCE WITH INTERESTS. No event has occurred and is
continuing and no condition exists or will exist after giving effect to the
borrowings to be made on the Closing Date under the Senior Loan Documents which
constitutes an Event of Default or Potential Default. None of the Companies is
in violation of (i) any term of any declaration of trust, charter, instrument,
bylaw, similar or other organizational or governing document or (ii) any
agreement or instrument to which it is a party or by which it or any of its
properties may be subject or bound where such violation would constitute a
Material Adverse Change.
(o) PATENTS, LICENSES, FRANCHISES, ETC. The Companies own or possess all the
material patents, trademarks, service marks, tradenames, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate their
respective properties and to carry on their respective businesses as presently
conducted and planned to be conducted by the Companies, without known conflict
with the rights of others.
(p) SECURITY INTERESTS. The Liens granted or to be granted to the Agent for the
benefit of the Banks pursuant to the Security Agreement and the Pledge Agreement
in the Collateral constitute and will continue to constitute first-priority
perfected security interests under the Uniform Commercial Code as enacted in
each applicable jurisdiction (the "UNIFORM COMMERCIAL CODE") or other applicable
Law entitled to all the rights, benefits and priorities provided by the Uniform
Commercial Code or such Law. The grant of such Liens does not and will not
impair or cause the termination of any investment advisory or other contracts of
any of the Companies under any Law (including the Investment Company Act). Upon
the filing of financing statements relating to said security interests in each
office and in each jurisdiction where required in order to perfect the security
interests described above, taking possession of any stock certificates
evidencing the Pledged Collateral and recordation of the Security Agreement in
the United States Patent and Trademark Office, all such action as is necessary
or advisable to establish such rights of the Agent will have been taken. There
will be upon execution and delivery of the Security Agreement and the Pledge
Agreement and such filings and such taking of possession referred to in the
preceding sentence, no necessity for any further action in order to preserve,
protect and continue such rights, except the filing of continuation statements
with respect to such financing statements within six (6) months prior to each
five (5) year anniversary of the filing of such financing statements, PROVIDED
that foreclosure on the Pledged Collateral or other transfer of the Pledged
Collateral under the Pledge Agreement may necessitate obtaining the approvals
described in Section 9(b) of the Pledge Agreement. All filing fees and other
expenses in connection with each such action have been or will be paid by the
Borrower.
(q) PROCEEDS. The Borrower will use the proceeds of the Loans only for lawful
purposes in accordance with the second recital clause and not in contravention
of any applicable Law, including the Investment Company Act, or any other
provision hereof.
(r) STATUS OF THE PLEDGED COLLATERAL. All of the Pledged Collateral consisting
of capital stock pledged or to be pledged by the Pledgors pursuant to the Pledge
Agreement is duly authorized, validly issued, fully paid, nonassessable and
owned beneficially and of record by the Pledgor pledging the same free and clear
of any Lien or restriction on transfer, except as otherwise provided by the
Pledge Agreement and except as the right of the Banks to dispose of the Pledged
Shares may be limited by the Securities Act of 1933, as amended, and the
regulations promulgated by the Securities and Exchange Commission thereunder and
by applicable state securities laws, PROVIDED that foreclosure on the Pledged
Shares or other transfer of the Pledged Shares under the Pledge Agreement may
necessitate obtaining the approvals described in Section 9(b) of the Pledge
Agreement. There are no agreements or understandings with respect to the Pledged
Shares of capital stock included in the Pledged Collateral except the
Shareholder Rights Agreement and the Articles of Incorporation and the Bylaws of
the Borrower. The restrictions on transfer contained in the Shareholder Rights
Agreement do not and shall not restrict the pledge of the Pledged Shares under
the Pledge Agreement or the transfer of the Pledged Shares by the Agent. There
are no agreements or understandings with respect to the Pledged Collateral
consisting of capital stock of any Subsidiaries of the Borrower. The Banks
hereby consent to amending and restating the second sentence of Section 4(b) of
the Pledge Agreement to read as follows: "After the occurrence and during the
continuation of an Event of Default, at the written direction of the Collateral
Agent, the Pledgors shall not be entitled to exercise any of such rights, and
the Collateral Agent may exercise all of such rights for the benefit of the
Creditors." At such time as the consent of the holders of the Senior Notes is
obtained pursuant to the Intercreditor Agreement (Senior Notes), the Banks
expressly authorize PNC Bank, National Association, as collateral agent under
the Pledge Agreement, to enter into an amendment to the Pledge Agreement
reflecting the amendment described in the foregoing sentence.
(s) INSURANCE. SCHEDULE 6.1(S) lists all insurance policies and other bonds to
which any of the Companies is a party, all of which are valid and in full force
and effect. No notice has been given or material claim made and no ground exists
to cancel or avoid any of such policies or bonds or to reduce the coverage
provided thereby. Such policies and bonds provide adequate coverage from
reputable and financially sound insurers in amounts sufficient to insure the
assets and risks of the Companies in accordance with prudent business practice
in the industry of the Companies.
(t) COMPLIANCE WITH LAWS. The Companies have complied in all respects with all
applicable Laws, including federal and state securities laws and Section 17(a)
of the Investment Company Act, in all jurisdictions in which any of the
Companies is presently or will be doing business except where the failure to do
so would not constitute a Material Adverse Change.
(u) MATERIAL CONTRACTS. SCHEDULE 6.1(U) lists all material contracts relating to
the business operations of the Companies, which are required to be included
under applicable Securities and Exchange Commission regulations, including, to
the extent required under such regulations, all employee benefit plans,
employment agreements, collective bargaining agreements and labor contracts (the
"LABOR CONTRACTS"), all investment advisory contracts, investment counseling
contracts, Section 12b-1 Plans, distribution agreements, and administrative
service agreements and all leases and other contracts for $1,000,000 or more
entered into in the ordinary course of business. All material contracts of each
of the Companies are valid, binding and enforceable upon each of the parties
thereto in accordance with their respective terms, and there is no default
thereunder with respect to any of the Companies and, to the Borrower's
knowledge, with respect to parties other than the Companies.
(v) INVESTMENT COMPANIES. None of the Companies is an "investment company"
registered or required to be registered under the Investment Company Act or
under the "control" of an "investment company" as such terms are defined in the
Investment Company Act and none of them shall become such an "investment
company" or under such "control." Each Fund that constitutes an "investment
company" is in compliance in all material respects with all requirements
applicable to an "investment company" under the Investment Company Act.
(w) SOLVENCY. Each of the Companies is, and after consummation of this Agreement
and the other Senior Loan Documents and giving effect to all Indebtedness
incurred hereby and thereby and the Liens granted by the Companies in connection
herewith will be, Solvent, as determined as of the Closing Date.
(x) BENEFIT ARRANGEMENTS.
--------------------
(i) Neither the Borrower nor any member of the ERISA Group sponsors, maintains
or otherwise contributes to, or has within the preceding five (5) year period
sponsored, maintained or otherwise contributed to, a Defined Benefit Pension
Plan or a Multiemployer Plan.
(ii) The Borrower and each member of the ERISA Group are in compliance in all
material respects with any applicable provisions of ERISA with respect to all
Benefit Arrangements. There has been no Prohibited Transaction with respect to
any Benefit Arrangement, or COBRA Violation, which could result in any material
liability of the Borrower or any other member of the ERISA Group. With respect
to each Benefit Arrangement that is a defined contribution plan, the Borrower
and each member of the ERISA Group (A) have fulfilled in all material respects
their obligations under the minimum funding standards of ERISA, if applicable,
or contractual obligations to contribute to such plans, and (B) have not had
asserted against them any penalty for failure to fulfill the minimum funding
requirements of ERISA.
(iii) To the extent that any Benefit Arrangement is insured, the Borrower and
all members of the ERISA Group have paid when due all premiums required to be
paid for all periods through and including the Closing Date. To the extent that
any Benefit Arrangement is funded other than with insurance, the Borrower and
all members of the ERISA Group have made when due all contributions required to
be paid for all periods through and including the Closing Date.
(y) EMPLOYMENT MATTERS. Each of the Companies is in compliance with the Labor
Contracts and all applicable federal, state and local labor and employment Laws,
including those related to equal employment opportunity and affirmative action,
labor relations, minimum wage, overtime, child labor, medical insurance
continuation, worker adjustment and relocation notices, immigration controls and
worker and unemployment compensation, where the failure to comply would
constitute a Material Adverse Change. There are no outstanding grievances,
arbitration awards or appeals therefrom arising out of the Labor Contracts or
current or threatened strikes, picketing, handbilling or other work stoppages or
slowdowns at facilities of the Companies which in any case would constitute a
Material Adverse Change.
(z) ENVIRONMENTAL MATTERS. The Companies are in material compliance with all
applicable Environmental Laws and have not received any Environmental Complaint
from any Official Body or private person alleging that any of the Companies is a
potentially responsible party, and the Borrower has no reason to believe that
such an Environmental Complaint might be received.
(aa) EXISTING BUSINESS. The Companies are currently engaged in the mutual
-----------------
fund, investment advisory, retirement plan servicing and financial services
business.
6.2 UPDATES TO SCHEDULES.
--------------------
Should any of the information or disclosures provided on any of the
Schedules attached hereto become outdated or incorrect in any material respect,
the Borrower shall promptly provide the Agent in writing with such revisions or
updates to such Schedule as may be necessary or appropriate to update or correct
the same; PROVIDED, unless any such Schedules have become outdated or incorrect
in any material and adverse respect, the Borrower may provide such revisions or
updates on a quarterly basis at the same time as the Borrower delivers its
quarterly compliance certificate in accordance with Section 8.3(d); PROVIDED,
FURTHER, that no Schedule that has become outdated or incorrect in any material
and adverse respect shall be deemed to have been amended, modified or superseded
by any such correction or update, nor shall any breach of warranty or
representation resulting from the inaccuracy or incompleteness of any such
Schedule be deemed to have been cured thereby.
7. CONDITIONS OF LENDING
The obligation of each Bank to make Loans hereunder is subject to
the performance by the Borrower of its obligations to be performed hereunder at
or prior to making of any such Loans and to the satisfaction of the following
further conditions:
7.1 CLOSING DATE.
------------
On the Closing Date:
(a) The representations and warranties of the Borrower contained in Article 6
shall be true and accurate on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which relate solely to an earlier date or
time, which representations and warranties shall be true and correct on and as
of the specific dates or times referred to therein), and the Borrower shall have
performed and complied with all covenants and conditions hereof; no Event of
Default or Potential Default under this Agreement shall have occurred and be
continuing or shall exist; and there shall be delivered to the Agent for the
benefit of each Bank a certificate of the Borrower, dated the Closing Date and
signed by the Chief Executive Officer, President, Chief Financial Officer,
Treasurer or Controller of the Borrower, to both such effects.
(b) There shall be delivered to the Agent for the benefit of each Bank a
certificate dated the Closing Date and signed by the Secretary or an Assistant
Secretary of each of the Companies, certifying as appropriate as to:
(i) all action taken by such Company in connection with this Agreement and the
other Senior Loan Documents to which it is a party, as applicable;
(ii) the names of the officer or officers authorized to sign this Agreement and
the other Senior Loan Documents to which such Company is a party and the true
signatures of such officer or officers and, in the case of the Borrower,
specifying the Authorized Officers who are authorized to act on behalf of the
Borrower for purposes of this Agreement and the true signatures of such
officers, on which the Agent and each Bank may conclusively rely; and
(iii) copies of its organizational documents, including its declaration of trust
or articles of incorporation and bylaws or partnership agreement, as applicable,
as in effect on the Closing Date certified by the appropriate state official
where such documents are filed in a state office together with certificates from
the appropriate state officials as to the continued existence and good standing
of each of the Companies in each state where organized or qualified to do
business, PROVIDED such certifications of state officials shall not be required
for Federated Fonds - Service GmbH, Federated International Holdings, BV,
Federated International - Europe GmbH and Federated International Management,
Ltd.
(c) The Notes, the Intercompany Subordination Agreement, the Pledge Agreement
and the Security Agreement shall have been duly executed and delivered to the
Agent for the benefit of the Banks, together with all appropriate financing
statements, appropriate stock powers and certificates evidencing the Pledged
Collateral. With respect to shareholders of the Borrower who are Pledgors, there
shall be delivered to the Agent, for the benefit of the Banks, certification of
authority and proof of incumbency or identity reasonably satisfactory to the
Agent and its counsel of the officer, trustee, custodian or other person
executing the Pledge Agreement on behalf of such Pledgor, including signature
guarantees in the case of shareholders who are individuals.
(d) There shall be delivered to the Agent, for the benefit of each Bank, a legal
opinion of outside counsel reasonably acceptable to the Agent and its counsel
(who may rely on the opinions of such other counsel as may be acceptable to the
Agent), dated the Closing Date and in form and substance satisfactory to the
Agent and its counsel in substantially the form of EXHIBIT J.
(e) All legal details and proceedings in connection with the transactions
contemplated by this Agreement and the other Senior Loan Documents shall be in
form and substance satisfactory to the Banks and counsel for the Banks, and the
Banks shall have received all such other counterpart originals or certified or
other copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to the Banks and said counsel,
as the Banks or said counsel may reasonably request.
(f) The Borrower shall pay or cause to be paid, to the extent not previously
paid (i) to the Agent for its own account, all fees payable on or before the
Closing Date as set forth in that certain letter dated November 14, 2000 and the
costs and expenses for which the Agent is entitled to be reimbursed, (ii) to the
Agent, for the account of the Banks (as defined in the Existing Senior Credit
Agreement), all accrued interest (if any) and any other fees and expenses
accrued pursuant to the Existing Credit Agreement and (iii) to the Agent for the
account of the Banks all fees accrued through the Closing Date and the costs and
expenses for which the Banks are entitled to be reimbursed pursuant to this
Agreement.
(g) All material consents required to effectuate the transactions contemplated
by the Senior Loan Documents shall have been obtained.
(h) There shall be no Material Adverse Change in the Historical Statements
previously delivered to the Agent since the date of their preparation; since
December 31, 1999, there shall be no Material Adverse Change; and there shall be
delivered to the Agent, for the benefit of each Bank, a certificate dated the
Closing Date and signed by the Chief Executive Officer, President, Chief
Financial Officer, Treasurer or Controller of the Borrower to each such effect.
(i) The making of the Loans shall not contravene any Law applicable to the
Borrower or any of the Banks, and the Banks and the Agent shall have received
all such certificates and documents in relation thereto as the Banks and the
Agent and their respective counsel shall have reasonably requested.
(j) No action, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages in
respect of this Agreement or the consummation of the transactions contemplated
hereby or which, in the Agent's sole discretion, would make it inadvisable to
consummate the transactions contemplated by this Agreement or any of the other
Senior Loan Documents.
(k) The Borrower shall deliver evidence acceptable to the Agent that adequate
insurance in compliance with Section 8.1(c) is in full force and effect and that
all premiums then due thereon have been paid, together with a certified copy of
the Borrower's casualty insurance policy or policies evidencing coverage
satisfactory to the Agent, with additional insured and lender loss payable
endorsements in form and substance satisfactory to the Agent and its counsel
naming the Agent as additional insured and lender loss payee for the benefit of
the Banks.
(l) The Agent shall have received copies of all lien search results and copies
of all filing receipts and acknowledgments issued by any governmental authority
to evidence any recordation or filing necessary to perfect the Lien of the Agent
for the benefit of the Banks on the Collateral or other satisfactory evidence of
such recordation and filing and to evidence that such Lien constitutes a Prior
Security Interest in favor of the Agent for the benefit of the Banks.
7.2 EACH ADDITIONAL LOAN.
--------------------
At the time of making any Loans (including conversions or renewals
of existing Loans) or issuing any Letters of Credit other than Loans made or
Letters of Credit issued on the Closing Date hereunder and after giving effect
to the proposed borrowings: the representations and warranties contained in
Article 6 and any certificates delivered by any of the Companies after the
Closing Date shall be true on and as of the date of such additional Loan or
Letter of Credit with the same effect as though such representations, warranties
and certifications had been made on and as of such date (except representations,
warranties and certifications which expressly relate solely to an earlier date
or time, which representations, warranties and certifications shall be true and
correct on and as of the specific dates or times referred to therein or made),
and the Borrower shall have performed and complied with all covenants and
conditions hereof; no Event of Default or Potential Default shall have occurred
and be continuing or shall exist; the making of the Loans shall not contravene
any Law applicable to the Borrower or any of the Banks; and the Borrower shall
have delivered to the Agent a duly executed and completed Loan Request or
application for a Letter of Credit as the case may be.
8. COVENANTS
8.1 AFFIRMATIVE COVENANTS.
---------------------
The Borrower covenants and agrees that until payment in full of the
Loans and interest thereon, satisfaction of all of the Borrower's other
obligations hereunder and termination of the Revolving Credit Commitments and
the Swing Loan Commitment, it shall, unless otherwise consented to in writing by
the Required Banks, comply at all times with the following affirmative
covenants:
(a) PRESERVATION OF EXISTENCE, ETC. The Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain, its existence and its license or
qualification and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary, except as otherwise permitted in Section 8.2(j).
(b) PAYMENT OF LIABILITIES, INCLUDING TAXES, ETC. The Borrower shall pay and
discharge, and shall cause each of its Subsidiaries to pay and discharge, all
liabilities to which it is subject or which are asserted against it, promptly as
and when the same shall become due and payable, including all taxes, assessments
and governmental charges upon it or any of its properties, assets, income or
profits, prior to the date on which penalties attach thereto, except to the
extent that such liabilities, including taxes, assessments or charges, are being
contested in good faith and by appropriate and lawful proceedings diligently
conducted and for which such reserve or other appropriate provisions, if any, as
shall be required by GAAP shall have been made, but only to the extent that
failure to discharge any such liabilities would not result in a Material Adverse
Change; PROVIDED that the Borrower and each of its Subsidiaries will pay all
such liabilities forthwith upon the commencement of proceedings to foreclose any
Lien which may have attached as security therefor.
(c) MAINTENANCE OF INSURANCE. The Loan Parties shall maintain and shall cause
each of its Subsidiaries to maintain, with financially sound and reputable
insurers, public liability and property damage insurance with respect to its
business and properties and the business and properties of its Subsidiaries
against loss or damage of the kinds customarily carried or maintained by Persons
of established reputation engaged in similar businesses and in amounts
acceptable to Agent and will deliver evidence thereof to Agent. The Loan Parties
shall cause, pursuant to endorsements and assignments in form and substance
reasonably satisfactory to Agent, the Agent, for the benefit of Agent and Banks,
to be named as lender's loss payee in the case of casualty insurance, Agent, for
the benefit of Agent and Banks, to be named as additional insured in the case of
all liability insurance and Agent, for the benefit of Agent and Banks, to be
named as assignee in the case of all business interruption insurance; PROVIDED,
that notwithstanding the foregoing, in the absence of a Potential Default or an
Event of Default, the Loan Parties may receive and retain proceeds from such
casualty policies to the extent that such proceeds are less than or equal to
$500,000.
(d) MAINTENANCE OF PROPERTIES AND LEASES. The Borrower shall maintain, and shall
cause each of its Subsidiaries to maintain, in good repair, working order and
condition (ordinary wear and tear excepted) in accordance with the general
practice of other businesses of similar character and size, all of those
properties useful or necessary to its business, and from time to time the
Borrower shall make, and shall cause each Subsidiary to make, all appropriate
repairs, renewals or replacements thereof.
(e) VISITATION RIGHTS. The Borrower shall permit, and shall cause each of its
Subsidiaries to permit, any of the officers or authorized employees or
representatives of any of the Banks to visit and inspect any of its properties
and to examine and make excerpts from its books and records and discuss its
business affairs, finances and accounts with its officers, all in such
reasonable detail and at such reasonable times and as often as any of the Banks
may reasonably request, subject to the provisions of Section 11.12, PROVIDED
that each Bank shall provide the Borrower and the Agent with reasonable notice
prior to any visit or inspection. In the event any Bank desires to visit or
inspect any of the Companies as permitted in the preceding sentence, such Bank
shall make a reasonable effort to conduct such visit or inspection
contemporaneously with any visit or inspection to be performed by the Agent.
(f) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Borrower shall maintain and
keep, and shall cause each of its Subsidiaries to maintain and keep, proper
books of record and account which enable the Borrower and its Subsidiaries to
issue financial statements in accordance with GAAP and as otherwise required by
applicable Laws of any Official Body having jurisdiction over the Borrower or
any Subsidiary, and in which full, true and correct entries shall be made in all
material respects of all its dealings and business and financial affairs.
(g) MAINTENANCE OF PATENTS, TRADEMARKS, ETC. The Borrower shall maintain, and
shall cause each of its Subsidiaries to maintain, in full force and effect, all
patents, trademarks, tradenames, copyrights, licenses, franchises, permits and
other authorizations necessary for the ownership and operation of its properties
and business if the failure so to maintain the same would constitute a Material
Adverse Change.
(h) BENEFIT ARRANGEMENTS. The Borrower shall, and shall cause each member of the
ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Benefit Arrangements except where such failure,
alone or in conjunction with any other failure, would not result in a Material
Adverse Change. Without limiting the generality of the foregoing, the Borrower
shall cause Benefit Arrangements which are defined contribution plans maintained
by the Borrower or any member of the ERISA Group to be funded in accordance with
the minimum funding requirements of ERISA and shall make, and cause each member
of the ERISA Group to make, in a timely manner, all contributions due to Benefit
Arrangements.
(i) COMPLIANCE WITH LAWS. The Borrower shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable Laws, including all Environmental
Laws, in all respects, including the Investment Company Act, PROVIDED that it
shall not be deemed to be a violation of this Section 8.1(i) as the result of
any failure to comply with any Law if such failure to comply would not result in
fines, penalties, other similar liabilities or injunctive relief which in the
aggregate would constitute a Material Adverse Change.
(j) OWNERSHIP OF SUBSIDIARIES. The Borrower shall keep and maintain 100%
ownership and control of each of its Subsidiaries, except (i) Passport,
Investlink, and Federated Fonds - Service GmbH (in which event the percentage of
ownership of at least 50% shall be maintained), and (ii) Subsidiaries which are
less than wholly owned and which may be created or acquired in the future
pursuant to Section 8.2(h)(iii).
(k) USE OF PROCEEDS. The Borrower will use the proceeds of the Loans only for
lawful purposes in accordance with the second recital clause and such uses shall
not contravene any applicable Law, including the Investment Company Act, or any
other provision hereof.
(l) NEW SUBSIDIARIES. The Borrower shall pledge, and shall cause each of its
Subsidiaries as applicable to pledge, to the Agent for the benefit of the Banks,
all of the capital stock of any Domestic Subsidiaries hereafter created or
acquired by any of the Companies and 65% of the capital stock of any Foreign
Subsidiaries (other than any Foreign Subsidiaries owned by another Foreign
Subsidiary) hereafter created or acquired by any of the Companies, and shall
cause each such Subsidiary to enter into the Intercompany Subordination
Agreement and (other than registered investment adviser or broker-dealer
Subsidiaries or Foreign Subsidiaries) the Security Agreement and shall cause to
be delivered a legal opinion of such outside counsel reasonably acceptable to
the Agent and its counsel in form and substance satisfactory to the Agent and
its counsel as to the matters set forth on EXHIBIT K. The Banks hereby consent
to the release of the capital stock of Federated Fonds - Service GmbH which is
pledged by Federated International Holdings, BV pursuant to the Pledge Agreement
and, at such time as the consent of the holders of the Senior Notes is obtained
pursuant to the Intercreditor Agreement (Senior Notes), expressly authorize PNC
Bank, National Association, as collateral agent under the Intercreditor
Agreement (Senior Notes), to release such stock from the Pledge Agreement.
(m) FURTHER ASSURANCES. The Borrower shall faithfully preserve and protect, and
shall cause each of its Subsidiaries to faithfully preserve and protect, from
time to time, at its expense, the Agent's Lien on and Prior Security Interest in
the Collateral as a continuing first priority perfected Lien under the Uniform
Commercial Code, subject only to Permitted Liens, and shall do, and shall cause
each of its Subsidiaries as applicable to do, such other acts as the Agent in
its sole discretion may deem necessary or advisable from time to time in order
to preserve, perfect and protect the Liens granted under the Senior Loan
Documents and to exercise and enforce its rights and remedies thereunder with
respect to the Collateral.
8.2 NEGATIVE COVENANTS.
------------------
The Borrower covenants and agrees that until payment in full of the
Loans and interest thereon, satisfaction of all of the Borrower's other
obligations hereunder and termination of the Revolving Credit Commitments and
the Swing Loan Commitment, it shall, unless otherwise consented to in writing by
the Required Banks, comply with the following negative covenants:
(a) MINIMUM CONSOLIDATED EBITDA. The Borrower shall not permit Consolidated
EBITDA as of the end of each fiscal quarter for the four (4) fiscal quarters
then ended to be less than $200,000,000.
(b) MINIMUM INTEREST COVERAGE RATIO. The Borrower shall not permit the ratio of
Consolidated EBITDA to consolidated interest expense of the Borrower and its
Consolidated Subsidiaries as of the end of each fiscal quarter for the four (4)
fiscal quarters then ended to be less than 4.0 to 1.0.
(c) MAXIMUM LEVERAGE RATIO . The Borrower shall not permit the Leverage Ratio as
of the end of each fiscal quarter beginning with the fiscal quarter ended
December 31, 2000 to exceed 2.0 to 1.0.
(d) [INTENTIONALLY OMITTED]
-----------------------
(e) INDEBTEDNESS. The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Senior Loan Documents;
(ii) Indebtedness under the Senior Notes;
(iii) Indebtedness pursuant to capitalized leases made under usual and customary
terms in the ordinary course of business and Indebtedness secured solely by
Purchase Money Security Interests not exceeding at any one time in the aggregate
$30,000,000;
(iv) existing Indebtedness as set forth on SCHEDULE 8.2(E) (including any
extensions or renewals thereof, PROVIDED there is no increase in the principal
amount thereof as of the Closing Date unless otherwise specified on SCHEDULE
8.2(E));
(v) intercompany Indebtedness which is subordinated to the Loans pursuant
to the Intercompany Subordination Agreement,
(vi) any short-term Indebtedness under securities clearing arrangements secured
by or for which marketable securities and related cash balances with customary
loan-to-value ratios are available to repay such Indebtedness;
(vii) unsecured Indebtedness assumed in connection with an acquisition
permitted by Section 8.2(j)(iii); or
(viii) unsecured Indebtedness (in addition to Indebtedness permitted
above) not to exceed at any one time in the aggregate $25,000,000.
(f) LIENS. The Borrower shall not, and shall not permit any of its Subsidiaries
to, at any time create, incur, assume or suffer to exist any Lien on any of its
property or assets, tangible or intangible, now owned or hereafter acquired, or
agree to become liable to do so, except Permitted Liens.
(g) GUARANTIES. The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time directly or indirectly, become or be liable in
respect of any Guaranty, or assume, guaranty, become surety for, endorse or
otherwise agree, become or remain directly or contingently liable upon or with
respect to any obligation or liability of any other person, except for the Liens
granted under the Senior Loan Documents, and the guarantee by the Companies of
obligations of the Subsidiaries of the Borrower (other than any Subsidiary which
is not wholly owned) to third parties, which obligations are incurred in the
ordinary course of such Subsidiaries' business consistent with industry practice
and not otherwise forbidden by this Agreement; PROVIDED that, except for Limited
Investments, in no event shall the Borrower or its Subsidiaries become or be
liable in respect of any Guaranty, or assume, guarantee, become surety for,
endorse or otherwise agree, become or remain directly or contingently liable
upon or with respect to any obligation or liability of the Special Purpose
Subsidiaries.
(h) LOANS AND INVESTMENTS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, at any time make or suffer to remain outstanding any loan
or advance to, or purchase, acquire or own any stock, bonds, notes or securities
of, or any partnership interest (whether general or limited) in, or any other
investment or interest in, or make any capital contribution to, any other
person, or agree, become or remain liable to do any of the foregoing, except:
(i) loans and investments as set forth on SCHEDULE 8.2(H) (including any
extensions or renewals thereof, PROVIDED there is no increase in the principal
amount thereof as of the Closing Date unless otherwise specified on SCHEDULE
8.2(H));
(ii) investments in wholly owned Subsidiaries existing on the date hereof and
wholly owned Subsidiaries hereafter created or acquired, PROVIDED the Borrower
and each of its Subsidiaries shall comply with the requirements of Section
8.1(l);
(iii) investments in (A) Subsidiaries, which are less than wholly owned, but
over which the Borrower maintains control, and (B) corporate entities in which
the Borrower does not maintain control but for which none of the Companies has
any liability greater than its initial investment in such entity and where the
activities in which such entity engages are consistent with the activities set
forth in Section 6.1(aa), PROVIDED, that (1) the investments permitted by clause
(B) of this Section 8.2(h)(iii) shall not exceed $10,000,000, (2) the stock of
any such Subsidiary or corporate entity which is owned by the Borrower or
another Subsidiary shall be pledged to the Agent for the benefit of the Banks
under the Pledge Agreement PROVIDED THAT, notwithstanding the foregoing, in no
event shall the Borrower or another Subsidiary be required to pledge more than
65% of the capital stock of any Foreign Subsidiary, PROVIDED, FURTHER, however,
with respect to investments pursuant to clause (B) above, such stock must be
pledged only upon the request of the Agent, upon the occurrence of an Event of
Default or Potential Default;
(iv) intercompany loans which are subordinated to the Loans pursuant to the
Intercompany Subordination Agreement,
(v) trade credit extended, and loans and advances extended to subcontractors or
suppliers, under usual and customary terms in the ordinary course of business;
(vi) advances to employees to meet expenses incurred by such employees in
the ordinary course of business;
(vii) Permitted Investments;
(viii) loans, advances and investments in Subsidiaries existing on the
date hereof; and
(ix) Limited Investments in the Special Purpose Subsidiaries so long as the
Limited Investments in all Special Purpose Subsidiaries do not exceed $500,000
in the aggregate.
(i) DIVIDENDS AND RELATED DISTRIBUTIONS. The Borrower shall not make or pay, or
agree to become or remain liable to make or pay, any dividend or other
distribution of any nature (whether in cash, property, securities or otherwise)
on account of or in respect of any shares of the capital stock of the Borrower
(including the Preferred Shares and the Common Shares), or on account of the
purchase, redemption, retirement or acquisition of any shares of the capital
stock (or warrants, options or rights therefor) of the Borrower, nor permit any
such action to be taken indirectly by any of its Subsidiaries, except:
(i) [intentionally omitted];
(ii) in addition to repurchases of Unpledged Shares permitted pursuant to
Section 8.2(i)(iv) below, so long as no Event of Default or Potential Default
has occurred and is continuing, the Borrower may repurchase not in excess of (a)
from and after January 1, 2001 through the term of the Agreement, primarily on a
public stock exchange and in accordance with any stock repurchase plan
authorized by the Borrower's Board of Directors from time to time, up to
$125,000,000 of Unpledged Shares but, so long as the Senior Notes remain
outstanding, in no event more than the amount permitted pursuant to the note
purchase agreements entered into in connection with the Senior Notes, and (b)
during the term of this Agreement, $5,000,000 of Restricted Stock;
(iii) any Subsidiary which is less than wholly owned may make distributions
as permitted under its organizational documents; and
(iv) during the Borrower's fiscal year 2001 and thereafter, so long as (A) no
Event of Default or Potential Default has occurred and is continuing, and (B)
the Borrower is in compliance with Section 8.2(a), in the case of both clauses
(A) and (B) after giving effect to any such dividend or stock repurchase
payment, the Borrower may (1) make dividend payments with respect to the Common
Shares and in an amount not to exceed, and (2) in addition to repurchases of
Unpledged Shares permitted pursuant to Section 8.2(i)(ii) above, repurchase
Unpledged Shares for an amount not to exceed, in any fiscal year on a cumulative
basis for clauses (1) and (2), 50% of any net income (or minus 100% of any net
loss) of the Borrower and its Subsidiaries from January 1, 2000 through the date
of payment.
(j) LIQUIDATIONS, MERGERS, CONSOLIDATIONS AND ACQUISITIONS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, dissolve or liquidate or
wind-up its affairs, or become a party to any merger or consolidation, or
acquire by purchase, lease or otherwise all or substantially all of the assets
or capital stock of any other person, except:
(i) [Intentionally omitted]
(ii) any Grantor (other than the Borrower) may liquidate into, merge or
consolidate with a wholly owned Grantor (other than the Borrower) and any wholly
owned Subsidiary which is not a Grantor may liquidate into, merge or consolidate
with a wholly owned Subsidiary (so long as if the entity into which any
wholly-owned Subsidiary which is not a Grantor is liquidating, merging or
consolidating is a Grantor, it continues to be a Grantor after the liquidation,
merger or consolidation); and
(iii) the Borrower or another Pledged Subsidiary may effect an acquisition of
the capital stock or assets (tangible or intangible) of another person or
persons, so long as (A) such person is a company which engages in the mutual
fund, investment advisory, retirement plan servicing or financial services
business or a business related or ancillary to any of the foregoing, (B) if such
person is a public company, the acquisition is not hostile and (C) after giving
effect to such acquisition, no Event of Default or Potential Default shall exist
or be continuing and fifteen (15) days prior to the consummation of such
acquisition, the Borrower shall have provided to the Agent and the Banks pro
forma financial statements for the Borrower and the Consolidated Subsidiaries,
after giving effect to such acquisition, demonstrating such compliance.
(k) DISPOSITIONS OF ASSETS OR SUBSIDIARIES. The Borrower shall not, and shall
not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or
otherwise transfer or dispose of, voluntarily or involuntarily, any of its
properties or assets, tangible or intangible (including sale, assignment,
discount or other disposition of accounts, contract rights, chattel paper,
equipment or general intangibles with or without recourse or of capital stock,
shares of beneficial interest or partnership interests of a Subsidiary), except:
(i) any sale, transfer or lease of assets by the Borrower or any wholly owned
Subsidiary to the Borrower or any other wholly owned Grantor and any sale or
transfer of Designated Assets by a Subsidiary of the Borrower to another
Subsidiary of the Borrower followed by an immediate transfer to a Special
Purpose Subsidiary, in connection with a securitization or other receivables
sale transaction so long as such transaction is non-recourse to any of the
Companies or any Special Purpose Subsidiary (except for customary recourse
provisions, including recourse to the Designated Assets being sold or
transferred).
(ii) any sale, transfer or lease of assets which are no longer necessary or
required in the conduct of the Borrower's or any Subsidiary's business resulting
in after-tax proceeds (net of reasonable and customary expenses in connection
with such sale, transfer or lease) not exceeding in the aggregate $10,000,000 in
any fiscal year;
(iii) any sale, transfer or lease of assets in the ordinary course of business
which are replaced by substitute assets; PROVIDED such substitute assets are
subject to the Banks' Prior Security Interest; and
(iv) any sale, transfer or lease of assets, other than those specifically
excepted pursuant to clauses (i) through (iii) above, which is approved by the
Required Banks.
(l) SELF-DEALING. The Borrower shall not, and shall not permit any of its
Subsidiaries to, enter into or carry out any transaction (including purchasing
property or services from or selling property or services to any Affiliate or
other person), except upon arm's-length terms and conditions and in accordance
with all applicable Law (including the Investment Company Act) provided that the
foregoing requirements regarding arms-length terms and conditions shall not be
applicable to transactions (i) permitted in the Shareholder Rights Agreement or
(ii) between or among the Borrower or any Subsidiaries over which the Borrower
maintains control.
(m) BENEFIT ARRANGEMENTS. The Borrower shall not, and shall not permit any
--------------------
of its Subsidiaries or member of the ERISA Group to:
(i) fail to satisfy the minimum funding requirements of ERISA and the Internal
Revenue Code with respect to any Benefit Arrangement which is a money purchase
pension plan;
(ii) request a minimum funding waiver from the IRS with respect to any Benefit
Arrangement which is a money purchase pension plan;
(iii) engage in a Prohibited Transaction with any Benefit Arrangement which,
alone or in conjunction with any other circumstances or set of circumstances
resulting in liability under ERISA, would constitute a Material Adverse Change;
(iv) commit a COBRA Violation which would constitute a Material Adverse
Change;
(v) fail to give any and all notices and make all disclosures and governmental
filings required under ERISA or the Internal Revenue Code, where such failure is
likely to result in a Material Adverse Change; or
(vi) adopt a Defined Benefit Pension Plan or adopt, or otherwise agree to
contribute to, a Multiemployer Plan or a Multiple Employer Plan, PROVIDED that
members of the Controlled Group other than the Companies may incur obligations
under Defined Benefit Pension Plans so long as the total "benefit liabilities"
as defined in Section 4001(a)(16) of ERISA under such Defined Benefit Pension
Plans do not at any time exceed $1,000,000.
(n) [INTENTIONALLY OMITTED]
-----------------------
(o) [INTENTIONALLY OMITTED]
-----------------------
(p) CONTINUATION OF OR CHANGE IN BUSINESS. The enterprises represented by the
Companies taken as a whole shall continue to engage in their respective
businesses substantially as conducted and operated by the Companies during the
present fiscal year, and the Borrower shall not permit any material change in
such businesses (i.e., the mutual fund, investment advisory, retirement plan
servicing and financial services business, and the business of Federated Bank,
as such businesses now exist or may exist in the future), either directly or
indirectly (including by means of loans and investments), and any change must be
in accordance with all applicable Law (including the Investment Company Act);
PROVIDED, that
(i) the only activities in which the Special Purpose Subsidiaries shall be
permitted to engage are to finance broker commissions with respect to the sale
of proprietary or private label mutual funds administered or distributed by the
Companies and to hold stock of other Special Purpose Subsidiaries, PROVIDED
(A) the Special Purpose Subsidiaries shall not enter into any agreements
which permit any cross-defaults with any of the Senior Loan
Documents and
(B) the Limited Investments in the Special Purpose Subsidiaries by the
Companies are not greater than $500,000 in the aggregate; and
(ii) the Borrower, FII Holdings, Inc. and Federated Services Company shall
not become registered as investment advisers or broker-dealers.
(q) [INTENTIONALLY OMITTED]
---------------------
(r) [INTENTIONALLY OMITTED]
---------------------
(s) CHANGES IN OTHER DOCUMENTS. The Borrower shall not amend or modify any
provisions of the Shareholder Rights Agreements, its organizational documents
(including Articles of Incorporation and Bylaws) or the Senior Notes or any
related agreement, document or instrument, without providing at least fifteen
(15) Business Days' prior written notice to the Agent and, in the event such
change would be adverse to the Banks as determined by the Agent in its sole
discretion, obtaining the prior written consent of the Required Banks.
Notwithstanding the foregoing, the Borrower may exercise its right to
unilaterally terminate the Shareholder Rights Agreement, without providing any
prior written notice or obtaining any prior written consent but the Borrower
shall notify the Agent at such time of any termination.
(t) INTERCOMPANY TRANSACTIONS. The Borrower shall not permit there to be any
restriction on the dividends payable by its Subsidiaries except as otherwise
required by Law or this Agreement. The Borrower shall not permit there to be any
intercompany debt owing by the Borrower to its Subsidiaries unless such debt is
subordinated to the Loans pursuant to the Intercompany Subordination Agreement.
Except as permitted in Section 8.2(h), no existing business or assets of the
Companies shall be transferred or otherwise diverted to or used for the benefit
of Subsidiaries which are not wholly owned.
(u) CHANGE IN OWNERSHIP. The Borrower shall not permit any change in the
ownership of the Class A Shares except transfers of the Class A Shares may be
made among the officers, directors and employees of the Borrower and its
Subsidiaries and their respective family and affiliates, so long as the transfer
is subject to the Pledge Agreement; PROVIDED however, that notwithstanding the
provisions of this Section 8.2(u), the Borrower shall not take any action or
permit any action to be taken which would result in less than all of the Class A
Shares continuing to be pledged at all times to the Agent under the Pledge
Agreement.
(v) [INTENTIONALLY OMITTED]
---------------------
(w) FISCAL YEAR AND ACCOUNTING METHODS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, (i) change its fiscal year from the twelve
(12) month period beginning January 1 and ending December 31 or (ii) change from
the accrual method of accounting.
8.3 REPORTING REQUIREMENTS.
----------------------
The Borrower covenants and agrees that until payment in full of the
Loans and interest thereon, satisfaction of all of the Borrower's other
obligations hereunder and termination of the Revolving Credit Commitments and
the Swing Loan Commitment, it will furnish or cause to be furnished to the Agent
and each of the Banks:
(a) [INTENTIONALLY OMITTED]
---------------------
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any event within
forty-five (45) days after the end of each fiscal quarter in each fiscal year,
its operations report, including, at a minimum, consolidated financial
statements of the Borrower and its Consolidated Subsidiaries consisting of a
consolidated balance sheet as of the end of such fiscal quarter and related
consolidated statement of operations, retained earnings and cash flows for the
fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and certified (subject to normal year-end audit adjustments)
by the Chief Executive Officer, President, Chief Financial Officer, Treasurer or
Controller of the Borrower as having been prepared in accordance with GAAP,
consistently applied, and setting forth in comparative form the respective
financial statements for the corresponding date and periods in the previous
fiscal year.
(c) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event within
ninety (90) days after the end of each fiscal year of the Borrower, financial
statements of the Borrower and its Consolidated Subsidiaries consisting of
consolidated and consolidating balance sheets as of the end of such fiscal year,
and related consolidated and consolidating statement of operations, consolidated
stockholders' equity, consolidated statement of retained earnings and
consolidated statement of cash flow for the fiscal year then ended, all in
reasonable detail and setting forth in comparative form the financial statements
as of the end of and for the preceding fiscal year, and (in the case of the
consolidated financial statements only) certified by Ernst & Young LLP or
another independent certified public accountant of nationally recognized
standing satisfactory to the Required Banks. The certificate or report of
accountants shall be free of qualifications (other than (A) any consistency
qualification, or (B) any qualification relating to an inconsistency with GAAP,
that may result from a change in the method used to prepare Borrower's financial
statements as to which such accountants concur) and shall not indicate the
occurrence or existence of any event, condition or contingency which would
materially impair the prospect of payment or performance of any covenant,
agreement or duty of the Borrower under any of the Senior Loan Documents,
together with a letter of such accountants substantially to the effect that
based upon their ordinary and customary examination of the affairs of the
Borrower, performed in connection with the preparation of such consolidated
financial statements, and in accordance with generally accepted auditing
standards, they are not aware of the existence of any condition or event which
constitutes or would, upon notice or lapse of time, or both, constitute an Event
of Default or, if they are aware of such condition or event, stating the nature
thereof and confirming the Borrower's calculations with respect to the
certificate to be delivered pursuant to Section 8.3(d) with respect to such
financial statements.
(d) CERTIFICATE OF THE BORROWER. Concurrently with the financial statements of
the Borrower furnished to the Agent and to the Banks pursuant to Sections 8.3(b)
and 8.3(c), a certificate of the Borrower signed by the Chief Executive Officer,
President, Chief Financial Officer, Treasurer or Controller of the Borrower, in
the form of EXHIBIT L, to the effect that, except as described pursuant to
Section 8.3(e), (i) the representations and warranties of the Borrower contained
in Article 6 and any certifications delivered by any of the Companies after the
Closing Date are true on and as of the date of such certificate with the same
effect as though such representations, warranties and certifications had been
made on and as of such date (except representations, warranties and
certifications which expressly relate solely to an earlier date or time) and the
Borrower has performed and complied with all covenants and conditions hereof,
(ii) no Event of Default or Potential Default exists and is continuing on the
date of such certificate and (iii) containing calculations in sufficient detail
to demonstrate the Leverage Ratio and compliance as of the date of the financial
statements with the covenants contained in Section 8.1(l) and Sections 8.2(a),
(b), (c), (h), (i), (j), (k) and (u).
(e) NOTICE OF DEFAULT. Promptly after the Borrower has learned of the occurrence
of an Event of Default, Potential Default or Material Adverse Change, a
certificate signed by the Borrower's Chief Executive Officer, President, Chief
Financial Officer, Treasurer or Controller setting forth the details of such
Event of Default, Potential Default or Material Adverse Change and the action
which the Borrower proposes to take with respect thereto.
(f) NOTICE OF LITIGATION. Promptly after the commencement thereof, notice of all
actions, suits, proceedings or investigations before or by any Official Body or
any other person against any of the Companies or any of the Funds or which
relates to the Collateral, involves a claim or series of claims of $5,000,000 or
more or which if adversely determined would constitute a Material Adverse
Change.
(g) CERTAIN EVENTS. Written notice to the Agent of (i) any sale or other
transfer of assets as permitted under subsections (i), (ii), (iii) or (iv) of
Section 8.2(k), (ii) any merger, acquisition, consolidation or liquidation
permitted under Section 8.2((j), (iii) any change in the ownership or management
of the Borrower permitted under Section 8.2(u) or (v), (iv) the creation or
acquisition of any new Subsidiaries or investment in any other corporate entity,
such notice to be delivered to the Agent within five (5) Business Days after
occurrence of such event or consummation of such transaction(s), and in the case
of the creation or acquisition of a new Subsidiary or investment in any other
corporate entity, accompanied by the items specified in Section 8.1 to be
delivered within thirty (30) calendar days after the creation or acquisition of
a new Subsidiary or investment in any other corporate entity, and (v) any
amendment to the declaration of trust, certificate or articles of incorporation,
bylaws, partnership agreement or other organizational documents of any of the
Companies or the use by any of the Companies of any fictitious name, it being
understood that any such amendments require at least ten (10) Business Days'
prior notice to the Agent and may in some cases, including any amendment to the
Articles of Incorporation of the Borrower which the Agent has determined would
be adverse to the Banks pursuant to Section 8.2(s), require the prior written
consent of the Required Banks.
(h) OTHER NOTICES, REPORTS AND INFORMATION. At the same time sent or provided to
the holders of the Senior Notes under the Senior Notes and related documents,
all notices and reports provided under the Senior Notes and related documents
(unless already provided pursuant to any other provision of this Section 8.3).
Promptly upon their becoming available to the Borrower, (i) the annual budget of
the Companies, to be supplied not later than fifteen (15) days prior to
commencement of the fiscal year to which it is applicable, (ii) any reports
including management letters submitted to any of the Companies by independent
accountants in connection with any annual, interim or special audit, (iii) any
reports, or notices distributed by any of the Companies to its shareholders on a
date no later than the date supplied to the shareholders, (iv) upon request,
periodic reports filed by any of the Companies with the Securities and Exchange
Commission, (v) periodic reports of examination by the Securities and Exchange
Commission or the National Association of Securities Dealers, Inc. of any of the
Companies and any responses thereto, (vi) any Revenue Agent's Report and
accompanying Statement of Income Tax Examination Changes and any notice of
assessment or deficiency by the IRS within ten (10) days of receipt, and (vii)
such other reports and information as the Banks may from time to time reasonably
request. The Borrower shall also notify the Banks promptly of the enactment of
any legislation or adoption of any Law which may result in a Material Adverse
Change.
(i) NOTICES REGARDING BENEFIT ARRANGEMENTS. Promptly upon becoming aware of the
occurrence thereof, notice (including the nature of the event and, when known,
any action taken or threatened by the IRS with respect thereto) of any
Prohibited Transaction which could subject the Borrower or any member of the
ERISA Group to a civil penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Internal Revenue Code in connection with any
Defined Benefit Pension Plan, Benefit Arrangement or any trust created
thereunder.
(j) FINANCIAL STATEMENTS REGARDING THE SPECIAL PURPOSE SUBSIDIARIES. At the same
time that the Borrower provides the quarterly financial statements required
under Section 8.3(b) for the Borrower and its Consolidated Subsidiaries, it
shall also provide quarterly financial statements of the type required by
Section 8.3(b) for the Special Purpose Subsidiaries. At the same time that the
Borrower provides the annual financial statements required under Section 8.3(c)
for the Borrower and its Consolidated Subsidiaries, it shall also provide
consolidated and consolidating annual financial statements, of the type required
by Section 8.3(c), for the Borrower, its Consolidated Subsidiaries and the
Special Purpose Subsidiaries.
(k) NOTICES REGARDING SPECIAL PURPOSE SUBSIDIARIES. Within five (5) Business
Days after the creation of any new Special Purpose Subsidiary, the Borrower
shall provide written notice to the Agent of the creation of any new Special
Purpose Subsidiary, accompanied by the declaration of trust, certificate or
articles of incorporation, bylaws or other organizational documents of the new
Special Purpose Subsidiary.
9. DEFAULT
9.1 EVENTS OF DEFAULT.
-----------------
An Event of Default shall mean the occurrence or existence of any
one or more of the following events or conditions (whatever the reason therefor
and whether voluntary, involuntary or effected by operation of Law):
(a) The Borrower shall (i) fail to pay any principal of any Loan (including
scheduled installments, mandatory prepayments or the payment due at maturity) or
(ii) fail to pay any interest on any Loan or any other amount owing thereunder
or hereunder within five (5) Business Days after such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made at any time by the Borrower herein or by
the Borrower or any other Loan Party in any other Senior Loan Document, or in
any certificate, other instrument or statement furnished pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading in
any material respect as of the time it was made or furnished; or
(c) The Borrower shall default in the observance or performance of any covenant,
condition or provision hereof or of any other Senior Loan Document and such
default shall continue unremedied for a period of fifteen (15) Business Days
after written notice thereof is given to the Borrower by the Agent at the
request of any Bank (such grace period to be applicable only in the event such
default can be remedied by corrective action of the Borrower as determined by
the Agent in its sole discretion); PROVIDED no grace period shall apply to
defaults in the observance or performance of Sections 8.2(a),(b),(c), (i), (j),
(k), (p), (u) or Section 8.3(e); or
(d) The Borrower or any other Loan Party shall default in the observance or
performance of any covenant, condition or provision hereof or of any other
Senior Loan Document and such default shall continue unremedied for a period of
fifteen (15) Business Days after the Borrower or any other Loan Party becomes
aware of the occurrence thereof (such grace period to be applicable only in the
event such default can be remedied by corrective action of the Borrower or any
other Loan Party as determined by the Agent in its sole discretion); PROVIDED no
grace period shall apply to defaults in the observance or performance of
Sections 8.2(a), (b), (c), (i), (j), (k), (p), (u) or Section 8.3(e); or
(e) A default or event of default shall occur at any time under the Senior Notes
or under the terms of any other Indebtedness (if any) of any of the Companies,
or all or any part of the Senior Notes or other Indebtedness shall not be paid
when due, and such default or event of default or non-payment continues
unremedied for fifteen (15) Business Days after any of the Companies becomes
aware thereof; PROVIDED no grace period hereunder shall apply in any event where
such default, event of default or nonpayment permits the holder of any
Indebtedness of the Companies to accelerate such Indebtedness; or
(f) Any final judgment(s) for the payment of money in excess of $10,000,000 in
the aggregate shall be entered against any of the Companies by a court having
jurisdiction in the premises, which judgment(s) are not discharged, vacated,
bonded or stayed pending appeal within a period of thirty (30) days from the
date of entry; or
(g) Any of the Senior Loan Documents shall cease to be legal, valid and binding
agreements enforceable against any Loan Party executing the same or such Loan
Party's heirs, representatives, successors and assigns (as permitted under the
Senior Loan Documents) in accordance with the respective terms thereof or shall
in any way be terminated (except in accordance with its terms) or become or be
declared ineffective or inoperative or shall in any way be challenged or
contested by any Loan Party or cease to give or provide the respective Liens,
security interests, rights, titles, interests, remedies, powers or privileges
intended to be created thereby; or
(h) Within a period of twelve (12) consecutive calendar months, individuals who
were directors of the Borrower on the first day of such period shall cease to
constitute a majority of the board of directors of the Borrower other than as a
result of death, voluntary resignation or retirement.
(i) A proceeding shall have been instituted in a court having jurisdiction in
the premises seeking a decree or order for relief in respect of any of the
Companies in an involuntary case under any applicable bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar
official) of any of the Companies shall have been appointed (pursuant to a
proceeding or otherwise) or for any substantial part of its property, or for the
winding-up or liquidation of its affairs, and such proceeding shall remain
undismissed or unstayed and in effect for a period of thirty (30) consecutive
days or such court shall enter a decree or order granting any of the relief
sought in such proceeding; or
(j) Any of the Companies shall commence a voluntary case under any applicable
bankruptcy, insolvency, reorganization or other similar Law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such Law, or shall consent to the appointment or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or other similar official) of itself or for any substantial part of its
property (other than voluntary liquidations permitted under Section 8.2(j)) or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action in
furtherance of any of the foregoing.
9.2 CONSEQUENCES OF EVENT OF DEFAULT.
--------------------------------
(a) If an Event of Default specified under subsections (a) through (h) of
Section 9.1 shall occur and be continuing, no Bank shall have any further
obligation to make Loans hereunder and the Agent, upon the request of the
Required Banks, shall by written notice to the Borrower take any or all of the
following actions: (i) terminate the Commitments, (ii) declare the unpaid
principal amount of the Notes then outstanding and all interest accrued thereon,
any unpaid fees and all other Indebtedness (including the stated amount of all
outstanding Letters of Credit of the Borrower to the Banks hereunder and
thereunder to be forthwith due and payable, and the same shall thereupon become
and be immediately due and payable to the Agent for the benefit of each Bank,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, and (iii) require the Borrower to, and Borrower
shall thereupon, deposit in a non-interest bearing account with the Agent, as
cash collateral for its obligations under the Senior Loan Documents, an amount
equal to the maximum amount currently or at any time thereafter available to be
drawn on all outstanding Letters of Credit, and the Borrower hereby pledges to
the Agent and the Banks, and grants to the Agent and the Banks a security
interest in, all such cash as security for such obligations, provided that upon
the earlier of (x) the curing of all existing Events of Default to the
satisfaction of the Required Banks and (y) payment in full of the Loans,
satisfaction of all of the Borrower's other obligations hereunder and
termination of the Commitments, the Agent shall return such cash collateral to
the Borrower; and
(b) if an Event of Default specified under subsections (i) or (j) of Section 9.1
shall occur, the Banks shall have no further obligation to make Loans hereunder,
the Commitments shall without any further action terminate and the unpaid
principal amount of the Notes then outstanding and all interest accrued thereon,
any unpaid fees and all other Indebtedness (including the stated amount of all
outstanding Letters of Credit) of the Borrower to the Banks hereunder and
thereunder shall be immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived; and
(c) In case an Event of Default shall occur and be continuing, any Bank to whom
any obligation is owed by the Borrower hereunder or under any other Senior Loan
Document or any participant of such Bank which has agreed in writing to be bound
by the provisions of Section 10.14 and any branch, subsidiary or affiliate of
such Bank or participant anywhere in the world shall have the right, in addition
to all other rights and remedies available to it, without notice to the
Borrower, to set off against and apply to the then unpaid balance of all the
Loans and all other obligations of the Borrower hereunder or under any other
Senior Loan Document any debt owing to, and any other funds held in any manner
for the account of, the Borrower by such Bank or participant or by such branch,
subsidiary or affiliate, including all funds in all deposit accounts (whether
time or demand, general or special, provisionally credited or finally credited,
or otherwise) now or hereafter maintained by the Borrower for its own account
(but not including funds held in custodian or trust accounts) with such Bank or
participant or such branch, subsidiary or affiliate. Such right shall exist
whether or not any Bank or the Agent shall have made any demand under this
Agreement or any other Senior Loan Document, whether or not such debt owing to
or funds held for the account of the Borrower is or are matured or unmatured and
regardless of the existence or adequacy of any collateral, guaranty or any other
security, right or remedy available to any Bank or the Agent; and
(d) In case an Event of Default shall occur and be continuing, and whether or
not the Agent shall have accelerated the maturity of the Loans of the Borrower
pursuant to any of the foregoing provisions of this Section 9.2, the Agent on
behalf of the Banks may proceed to protect and enforce its rights by suit in
equity, action at law and/or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement or
the Notes, including as permitted by applicable Law the obtaining of the EX
PARTE appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of the Agent on behalf of the Banks; and
(e) From and after the date on which the Agent has taken any action pursuant to
this Section 9.2 and until all obligations of the Borrower have been paid in
full, any and all proceeds received by the Agent from any sale or other
disposition of the Collateral, or any part thereof, or the exercise of any other
remedy by the Agent, shall be applied as follows:
(i) first, to reimburse the Agent and the Banks for out-of-pocket costs,
expenses and disbursements, including reasonable attorneys' fees and legal
expenses, incurred by the Agent or the Banks in connection with realizing on the
Collateral or collection of any obligations of the Borrower under any of the
Senior Loan Documents, including advances made subsequent to an Event of Default
by the Banks or any one of them or the Agent for the reasonable maintenance,
preservation, protection or enforcement of, or realization upon, the Collateral,
including advances for taxes, insurance, repairs and the like and reasonable
expenses incurred to sell or otherwise realize on, or prepare for sale or other
realization on, any of the Collateral;
(ii) second, to the repayment of all Indebtedness then due and unpaid of the
Borrower to the Banks incurred under this Agreement or any of the Senior Loan
Documents, whether of principal, interest, fees, expenses or otherwise, in such
manner as the Agent may determine in its discretion, subject to the provisions
of Section 5.2; and
(iii) the balance, if any, as required by Law.
(f) In addition to all of the rights and remedies contained in this Agreement or
in any of the other Senior Loan Documents, the Agent shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code or
other applicable Law, all of which rights and remedies shall be cumulative and
non-exclusive, to the extent permitted by Law. The Agent may, and upon the
request of the Required Banks shall, exercise all post-default rights granted to
the Agent and the Banks under the Senior Loan Documents or applicable Law.
9.3 NOTICE OF SALE.
--------------
Any notice required to be given by the Agent of a sale, lease, or
other disposition of the Collateral or any other related action by the Agent, if
given ten (10) days prior to such proposed action, shall constitute commercially
reasonable and fair notice thereof to the Borrower or any other Loan Party.
10. THE AGENT
10.1 APPOINTMENT.
-----------
Each Bank hereby irrevocably designates, appoints and authorizes PNC
to act as Agent for such Bank under this Agreement to execute and deliver or
accept on behalf of each of the Banks the other Senior Loan Documents. Each Bank
hereby irrevocably authorizes, and each holder of any Note by the acceptance of
a Note shall be deemed irrevocably to authorize, the Agent to take such action
on behalf of such Bank and such holder under the provisions of this Agreement
and the other Senior Loan Documents and any other instruments and agreements
referred to herein, and to exercise such powers and to perform such duties
hereunder as are specifically delegated to or required of the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. PNC
agrees to act as the Agent on behalf of the Banks to the extent provided in this
Agreement.
10.2 DELEGATION OF DUTIES.
--------------------
The Agent may perform any of its duties hereunder by or through
agents or employees (PROVIDED such delegation is exercised with reasonable care
and does not constitute a relinquishment of its duties as Agent) and, subject to
Sections 10.5, 10.6 and 10.7, shall be entitled to engage and pay for the advice
or services of any attorneys, accountants or other experts concerning all
matters pertaining to its duties hereunder and to rely upon any advice so
obtained, PROVIDED reasonable care is used in the selection of the foregoing
experts.
10.3 NATURE OF DUTIES; INDEPENDENT CREDIT INVESTIGATION.
--------------------------------------------------
The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Senior Loan Documents and no
implied covenants, functions, responsibilities, duties, obligations, or
liabilities shall be read into this Agreement or shall otherwise exist. The
duties of the Agent shall be mechanical and administrative in nature and shall
include the duty to provide to each Bank an executed original of such Bank's
Revolving Credit Note and an executed original of this Agreement and a copy of
the other Senior Loan Documents; the Agent shall not have by reason of this
Agreement a fiduciary or trust relationship in respect of any Bank; and nothing
in this Agreement, expressed or implied, is intended to or shall be so construed
as to impose upon the Agent any obligations in respect of this Agreement except
as expressly set forth herein. Each Bank expressly acknowledges (i) that the
Agent has not made any representations or warranties to it and that no act by
the Agent hereafter taken, including any review of the affairs of the Borrower
or any Subsidiary of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Bank; (ii) that it has made and
will continue to make, without reliance upon the Agent, its own independent
investigation of the financial condition and affairs and its own appraisal of
the creditworthiness of the Borrower in connection with this Agreement and the
making and continuance of the Loans hereunder; and (iii) except as expressly
provided herein, that the Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or other
information with respect thereto, whether coming into its possession before the
making of any Loan or at any time or times thereafter.
10.4 ACTIONS IN DISCRETION OF THE AGENT; INSTRUCTIONS FROM THE BANKS.
---------------------------------------------------------------
The Agent agrees, upon the written request of the Required Banks, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, PROVIDED that the Agent shall not
be required to take any action which exposes the Agent to legal liability or
which is contrary to this Agreement or any other Senior Loan Document or
applicable Law. In the absence of a request by the Required Banks, the Agent
shall have authority, in its sole discretion, to take or not to take any such
action, unless this Agreement specifically requires the consent of the Required
Banks or all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
10.6. Subject to the provisions of Section 10.6, no Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks, or in the absence of such instructions, in the absolute
discretion of the Agent.
10.5 REIMBURSEMENT AND INDEMNIFICATION OF THE AGENT BY THE BORROWER.
--------------------------------------------------------------
The Borrower unconditionally agrees to pay or reimburse the Agent
and save the Agent harmless against (i) liability for the payment of all
reasonable and necessary out-of-pocket costs, expenses and disbursements for
which reimbursement is customarily obtained, including fees and expenses of
counsel and consultants, incurred by the Agent (a) in connection with the
development, negotiation, preparation, printing, execution, administration,
interpretation and performance of this Agreement and the other Senior Loan
Documents, (b) relating to any requested amendments, waivers or consents
pursuant to the provisions hereof, (c) in connection with the enforcement of
this Agreement or any other Senior Loan Document or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Senior Loan Document, whether in bankruptcy or
receivership proceedings or otherwise, and (d) in any workout or restructuring
or in connection with the protection, preservation, exercise or enforcement of
any of the terms hereof or of any rights hereunder or under any other Senior
Loan Document or in connection with any foreclosure, collection or bankruptcy
proceedings, and (ii) all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent, in its capacity as such, in any way relating to or arising out of this
Agreement or any other Senior Loan Document or any action taken or omitted by
the Agent hereunder or thereunder; PROVIDED that the Borrower shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (a) if
the same results from the Agent's gross negligence or willful misconduct, or (b)
if the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense, or (c) if the same results
from a compromise or settlement agreement entered into without the consent of
the Borrower which consent shall not be unreasonably withheld.
10.6 EXCULPATORY PROVISIONS.
----------------------
Neither the Agent nor any of its directors, officers, employees,
agents or affiliates shall (i) be liable to any Bank for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith,
including pursuant to any other Senior Loan Document, unless caused by its or
their own gross negligence or willful misconduct, (ii) be responsible in any
manner to any of the Banks for the effectiveness, enforceability, genuineness,
validity or the due execution of this Agreement or any other Senior Loan
Document or for any recital, representation, warranty, document, certificate,
report or statement herein or made or furnished under or in connection with this
Agreement or any other Senior Loan Document, or (iii) be under any obligation to
any of the Banks to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions hereof or thereof on the part of
the Borrower or any Subsidiary of the Borrower, or the financial condition of
the Borrower or any Subsidiary of the Borrower, or the existence or possible
existence of any Event of Default or Potential Default. Neither the Agent nor
any Bank nor any of their respective directors, officers, employees, agents,
attorneys or affiliates shall be liable to the Borrower or any other Loan Party
for consequential damages resulting from any breach of contract, tort or other
wrong in connection with the negotiation, documentation or administration of the
Senior Loan Documents or the collection of the Loans.
10.7 REIMBURSEMENT AND INDEMNIFICATION OF THE AGENT BY THE BANKS.
-----------------------------------------------------------
Each Bank agrees to reimburse and indemnify the Agent (to the extent
not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent, in its capacity as such,
in any way relating to or arising out of this Agreement or any other Senior Loan
Document or any action taken or omitted by the Agent hereunder or thereunder,
PROVIDED that no such reimbursement shall be required with respect to expenses
incurred by the Agent during the time period through the Closing Date and no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(i) if the same relates to or arises out of the Agent's gross negligence or
willful misconduct, or (ii) if such Bank was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense,
or (iii) if the same results from a compromise and settlement agreement entered
into without the consent of the Required Banks, which consent shall not be
unreasonably withheld.
10.8 RELIANCE BY THE AGENT.
---------------------
The Agent shall be entitled to rely upon any writing, telegram,
telex or teletype message, facsimile, resolution, notice, consent, certificate,
letter, cablegram, statement, order or other document or conversation by
telephone or otherwise believed by it to be genuine and correct and to have been
signed, sent or made by the proper person or persons, and upon the advice and
opinions of counsel and other professional advisers selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action
hereunder unless it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
10.9 NOTICE OF DEFAULT.
-----------------
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default unless the Agent has
received written notice from a Bank or the Borrower referring to this Agreement,
specifically describing such Potential Default or Event of Default and stating
that such notice is a "notice of default."
10.10 NOTICES.
-------
The Agent shall promptly send to each Bank a copy of all notices
received from the Borrower and/or any other Loan Party pursuant to the
provisions of this Agreement or any other Senior Loan Document upon receipt
thereof. The Agent shall promptly notify the Borrower and the other Banks of
each change in the Base Rate and the effective date thereof.
10.11 PNC BANK, NATIONAL ASSOCIATION AND THE BANKS IN THEIR INDIVIDUAL
-----------------------------------------------------------------
CAPACITIES.
- ----------
With respect to its Commitments and the Loans made by it, the Agent
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not the Agent, and the term "Banks" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. PNC and its affiliates and each of the Banks and their respective
affiliates may, without liability to account, except as prohibited herein, make
loans to, accept deposits from, discount drafts for, act as trustee under
indentures of, and generally engage in any kind of banking or trust business
with, the Borrower and its shareholders, any Subsidiary of the Borrower and
their respective Affiliates, in the case of the Agent, as though it were not
acting as Agent hereunder and in the case of each Bank, as though such Bank were
not a Bank hereunder.
10.12 HOLDERS OF NOTES.
----------------
The Agent may deem and treat any payee of any Note as the owner
thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
10.13 EQUALIZATION OF THE BANKS.
-------------------------
The Banks and the holders of any participations in any Notes agree
among themselves that, with respect to all amounts received by any Bank or any
such holder for application on any obligation hereunder or under any Note or
under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker's
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will be made in the manner stated in the following sentence so that, in effect,
all such excess amounts will be shared ratably among the Banks and such holders
in proportion to their interests in payments under the Notes, except as
otherwise provided in Sections 4.4 (b), 5.4 or 5.5. The Banks or any such holder
receiving any such amount shall purchase for cash from each of the other Banks
an interest in such Bank's Loans in such amount as shall result in a ratable
participation by the Banks and each such holder in the aggregate unpaid amount
under the Notes, PROVIDED that if all or any portion of such excess amount is
thereafter recovered from the Bank or the holder making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by Law
(including court order) to be paid by the Bank or the holder making such
purchase.
10.14 SUCCESSOR AGENT.
---------------
The Agent (i) may resign as Agent with the consent of the Borrower,
such consent not to be unreasonably withheld or (ii) shall resign if such
resignation is requested by the Required Banks or required by Section 5.4(b), in
either case (i) or (ii) by giving not less than thirty (30) days' prior written
notice to the Borrower and the Banks. If the Agent shall resign under this
Agreement, then either (a) the Required Banks shall appoint from among the Banks
a successor agent for the Banks, subject to the consent of such successor agent
by the Borrower, such consent not to be unreasonably withheld, or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following the Agent's notice to the Banks of its resignation, then
the Agent shall appoint, with the consent of the Borrower, such consent not to
be unreasonably withheld, a successor agent who shall serve as Agent until such
time as the Required Banks appoint, and the Borrower consents, which consent
shall not be unreasonably withheld, to the appointment of, a successor agent.
Upon its appointment pursuant to either clause (a) or (b) above, such successor
agent shall succeed to the rights, powers and duties of the Agent and the term
"Agent" shall mean such successor agent, effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement. After the resignation of any Agent hereunder, the
provisions of this Article 10 shall inure to the benefit of such former Agent,
and such former Agent shall not by reason of such resignation be deemed to be
released from liability for any actions taken or not taken by it while it was an
Agent under this Agreement.
10.15 THE AGENT'S FEE.
---------------
The Borrower shall pay to the Agent an annual fee (the "AGENT'S
FEE"), payable annually in advance on the Closing Date and on each anniversary
of the Closing Date (if extended pursuant to Section 2.13)and, if the Borrower
elects the Term-Out Option, on the Revolving Credit Expiration Date, as set
forth in that certain letter dated November 14, 2000 between the Borrower and
the Agent.
10.16 CALCULATIONS.
------------
In the absence of gross negligence or willful misconduct, the Agent
shall not be liable for any error in computing the amount payable to any Bank
whether in respect of the Loans, fees or any other amounts due to the Banks
under this Agreement. In the event an error in computing any amount payable to
any Bank is made, the Agent, the Borrower and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
10.17 BENEFICIARIES.
-------------
Except as set forth in Sections 10.5, 10.14, 10.15 and 10.16, the
provisions of this Article 10 are solely for the benefit of the Agent and the
Banks, and the Borrower or any other Loan Party shall not have any rights to
rely on or enforce any of the provisions hereof. In performing its functions and
duties under this Agreement, the Agent shall act solely as agent of the Banks
and does not assume and shall not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for the Borrower or any other
Loan Party.
11. MISCELLANEOUS
11.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.
------------------------------------
With the written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and the Borrower may from time to time enter into
written agreements amending or changing any provision of this Agreement or any
other Senior Loan Document or the rights of the Banks, the Borrower or the other
Loan Parties hereunder or thereunder, or may grant written waivers or consents
to a departure from the due performance of the obligations of the Borrower or
the other Loan Parties hereunder or thereunder. Any such agreement, waiver or
consent made with such written consent shall be effective to bind all the Banks;
PROVIDED that without the written consent of all the Banks, no such agreement,
waiver or consent may be made which will:
(i) increase the amount of the Revolving Credit Commitment or any Term Loan
of any Bank hereunder;
(ii) reduce the scheduled principal payments of any Loan, reduce the rate of
interest borne by any Loan (except as provided in Section 4.1(0)), or reduce any
fees payable to any Bank hereunder;
(iii) whether or not any Loans are outstanding, extend the time for payment of
principal or interest of any Loan or any fees payable to any Bank hereunder;
(iv) except as permitted under Section 8.2(k) or in connection with the sharing
of Collateral in connection with the Senior Notes, release any Collateral or
other security, if any, for the Borrower's obligations hereunder; or
(v) amend Sections 4.1(c), 8.2(k), 10.6 or this Section 11.1, alter any
provision hereof regarding the pro rata treatment of the Banks hereunder, change
the definition of Required Banks, or change any requirement providing for the
Banks or the Required Banks to authorize the taking of any action hereunder.
11.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED.
---------------------------------------------------------
No course of dealing and no delay or failure of the Agent or any
Bank in exercising any right, power, remedy or privilege under this Agreement or
any other Senior Loan Document shall affect any other or future exercise thereof
or operate as a waiver thereof; nor shall any single or partial exercise thereof
or any abandonment or discontinuance of steps to enforce such a right, power,
remedy or privilege preclude any further exercise thereof or of any other right,
power, remedy or privilege. The rights and remedies of the Agent and the Banks
under this Agreement and the other Senior Loan Documents are cumulative and not
exclusive of any rights or remedies which they would otherwise have. Any waiver,
permit, consent or approval of any kind or character on the part of any Bank of
any breach or default under this Agreement or any such waiver of any provision
or condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11.3 REIMBURSEMENT AND INDEMNIFICATION OF THE BANKS BY THE BORROWER; TAXES.
---------------------------------------------------------------------
The Borrower agrees unconditionally upon demand to pay or reimburse
to each Bank and to save such Bank harmless against (i) liability for the
payment of all reasonable and necessary out-of-pocket costs, expenses and
disbursements for which reimbursement is customarily obtained, including fees
and expenses of counsel for each Bank incurred by such Bank (a) after the date
of the closing of the syndication hereunder, in connection with the
administration and interpretation of this Agreement and other instruments and
documents to be delivered hereunder, (b) relating to any amendments, waivers or
consents pursuant to the provisions hereof, (c) in connection with the
enforcement of this Agreement or any other Senior Loan Document, or collection
of amounts due hereunder or thereunder or the proof and allowability of any
claim arising under this Agreement or any other Senior Loan Document, whether in
bankruptcy or receivership proceedings or otherwise, and (d) in any workout,
restructuring or in connection with the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Senior Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, and (ii) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Bank, in its capacity as such, in any way relating to or arising
out of this Agreement or any other Senior Loan Document or any action taken or
omitted by such Bank hereunder or thereunder; PROVIDED that the Borrower shall
not be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (a) if
the same results from such Bank's gross negligence or willful misconduct, or (b)
if the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense, or (c) if the same results
from a compromise or settlement agreement entered into without the consent of
the Borrower, which consent shall not be unreasonably withheld. The Banks will
attempt to minimize the fees and expenses of legal counsel for the Banks by
considering the usage of one law firm to represent the Banks and the Agent where
appropriate. The Borrower agrees unconditionally to pay all stamp, document,
transfer, recording or filing taxes or fees and similar impositions now or
hereafter determined by the Agent or any Bank to be payable in connection with
this Agreement or any other Senior Loan Document, and the Borrower agrees
unconditionally to save the Agent and the Banks harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions.
11.4 HOLIDAYS.
--------
Whenever any payment or action to be made or taken hereunder shall
be stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day (except as provided in
Section 4.2(a) with respect to Euro-Rate Interest Periods), and such extension
of time shall be included in computing interest or fees, if any, in connection
with such payment or action.
11.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
------------------------------------------
(a) NOTIONAL FUNDING. Each Bank shall have the right from time to time, without
notice to the Borrower, to deem any branch, subsidiary or affiliate (which for
the purposes of this Section 11.5 shall mean any corporation or association
which is directly or indirectly controlled by or is under direct or indirect
common control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies at any time, PROVIDED that immediately
following (on the assumption that a payment was then due from the Borrower to
such other office) and as a result of such change the Borrower would not be
under any greater financial obligation pursuant to Section 5.5 than it would
have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to the Bank's actual methods of making,
maintaining or funding the Loans or any sources of funding actually used by or
available to such Bank.
(b) ACTUAL FUNDING. Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, subsidiary or affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this Section
11.5(b). If any Bank causes a branch, subsidiary or affiliate to make or
maintain any part of the Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Loans to the same extent as if such Loan were
made or maintained by such Bank but in no event shall any Bank's use of such a
branch, subsidiary or affiliate to make or maintain any part of the Loans
hereunder cause such Bank or such branch, subsidiary or affiliate to incur any
cost or expenses payable by the Borrower hereunder or require the Borrower to
pay any other compensation to any Bank (including any expenses incurred or
payable pursuant to Section 5.5) which would otherwise not be incurred.
11.6 NOTICES.
-------
Any notice, request, demand, direction or other communication to be
given to or made upon any party hereto under any provision of this Agreement and
any financial report to be given pursuant to Section 8.3 hereof (each, for
purposes of this Section 11.6 only, a "NOTICE") shall be given or made by
telephone or in writing (which includes by means of electronic transmission
(i.e., "E-MAIL") or facsimile transmission or by setting forth such Notice on a
site on the World Wide Web (a "WEBSITE POSTING") if Notice of such Website
Posting (including the information necessary to access such site) has previously
been delivered to the applicable parties hereto by another means set forth in
this Section 11.6) in accordance with this Section 11.6, PROVIDED, that any
financial report to be given pursuant to Section 8.3 hereof shall be made in
writing. Any such Notice must be delivered to the applicable parties hereto at
the addresses and numbers set forth under their respective names on SCHEDULE
11.6 hereof or in accordance with any subsequent unrevoked Notice from any such
party that is given in accordance with this Section 11.6. Any Notice shall be
effective:
(a) In the case of hand-delivery, when delivered;
(b) If given by mail, four days after such Notice is deposited with the United
States Postal Service, with first-class postage prepaid, return receipt
requested;
(c) In the case of a telephonic Notice, when a party is contacted by telephone,
if delivery of such telephonic Notice is confirmed no later than the next
Business Day by hand delivery, a facsimile or electronic transmission, a Website
Posting or an overnight courier delivery of a confirmatory Notice (received at
or before noon on such next Business Day);
(d) In the case of a facsimile transmission, when sent to the applicable party's
facsimile machine's telephone number, if the party sending such Notice receives
confirmation of the delivery thereof from its own facsimile machine;
(e) In the case of electronic transmission, when actually received;
(f) In the case of a Website Posting, upon delivery of a Notice of such posting
(including the information necessary to access such site) by another means set
forth in this Section 11.6; and
(g) If given by any other means (including by overnight courier), when actually
received.
Any Bank giving a Notice to a Loan Party shall concurrently send a copy thereof
to the Agent, and the Agent shall promptly notify the other Banks of its receipt
of such Notice.
11.7 SEVERABILITY.
------------
The provisions of this Agreement are intended to be severable. If
any provision of this Agreement shall be held invalid or unenforceable in whole
or in part in any jurisdiction, such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without in
any manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
11.8 GOVERNING LAW.
-------------
Each Letter of Credit and Section 2.10 shall be subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, as the same may be
revised or amended from time to time, and to the extent not inconsistent
therewith the internal laws of the Commonwealth of Pennsylvania without regard
to its conflict of laws principles and the balance of this Agreement shall be
deemed to be a contract under the laws of the Commonwealth of Pennsylvania and
for all purposes shall be governed by and construed and enforced in accordance
with the internal laws of the Commonwealth of Pennsylvania without regard to its
conflict of laws principles.
11.9 PRIOR UNDERSTANDING.
-------------------
This Agreement supersedes all prior understandings and agreements,
whether written or oral, between the parties hereto and thereto relating to the
transactions provided for herein and therein, including any prior
confidentiality agreements and commitments.
11.10 DURATION; SURVIVAL.
------------------
All representations and warranties of the Borrower contained herein
or made in connection herewith shall survive the making of the Loans and shall
not be waived by the execution and delivery of this Agreement, any investigation
by the Agent or the Banks, the making of the Loans, or payment in full of the
Loans. All covenants and agreements of the Borrower contained in Sections 8.1,
8.2 and 8.3 shall continue in full force and effect from and after the date
hereof so long as the Borrower may borrow hereunder and until payment of all
amounts due hereunder and termination of the Revolving Credit Commitments and
the Swing Loan Commitment. All covenants and agreements of the Borrower
contained herein relating to the payment of principal, interest, premiums,
additional compensation or expenses and indemnification, including those set
forth in the Notes, Article 5 and Sections 10.5 and 11.3, but not including
third-party claims with respect to which indemnification may be sought under
Section 10.5 or 11.3, shall survive for a period of one (1) year after payment
in full of the Loans and termination of the Revolving Credit Commitments and the
Swing Loan Commitment, and the Banks shall make any claim with respect to the
foregoing within such period, PROVIDED that such period shall be extended with
respect to any matters pending at the end of such one (1) year period. Except as
otherwise provided above, all obligations of the Borrower and the other Loan
Parties to the Banks, including indemnification obligations with respect to
third-party claims under Section 10.5 or 11.3, shall survive the payment in full
of the Loans and of all other obligations of the Borrower and the other Loan
Parties and termination of the Revolving Credit Commitments and the Swing Loan
Commitment.
11.11 SUCCESSORS AND ASSIGNS.
----------------------
This Agreement shall be binding upon and shall inure to the benefit
of the Banks, the Agent, the Borrower and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
and obligations hereunder or any interest herein except under the circumstances
contemplated under Section 8.1(a). Each Bank may, at its own cost, make
assignments of or sell participations in its Revolving Credit Commitment and any
Loan or Loans made by it to one (1) or more banks or other entities, subject to
compliance with the following requirements of this Section 11.11. The consent of
the Borrower shall be required for any assignment or participation except with
respect to fundings by a branch, subsidiary or affiliate pursuant to Section
11.5, and such consent shall not be unreasonably withheld, it being understood
that the Borrower may reasonably withhold such consent only if it determines in
good faith that the prospective assignee or participant is a significant
competitor, PROVIDED the consent of the Borrower shall not be required upon the
occurrence and during the continuation of an Event of Default or Potential
Default. The consent of the Agent shall also be required for any assignment
except with respect to fundings by a branch, subsidiary or affiliate pursuant to
Section 11.5, and such consent shall not be unreasonably withheld.
Except (i) as otherwise provided in Section 5.4 (b), or (ii) with
the consent of the Agent and the Borrower which consent may be withheld in their
sole discretion, assignments may not be made in amounts less than $5,000,000.
In the case of an assignment, upon the Agent's and the Borrower's
consent thereto and receipt by the Agent from the assignee of (i) a duly
executed Assignment and Assumption Agreement and (ii) a Three Thousand Five
Hundred Dollar ($3,500) assignment fee payable to the Agent, the assignee shall
have, to the extent of such assignment (unless otherwise provided therein), the
same rights, benefits and obligations as it would have if it had been a
signatory Bank hereunder. The Revolving Credit Commitments in Section 2.1 shall
then be adjusted accordingly and, upon surrender of any Note subject to such
assignment, the Borrower shall execute and deliver a new Revolving Credit Note
to the assignee in an amount equal to the amount of the Revolving Credit
Commitment assumed by it and a new Revolving Credit Note to the assigning Bank
in an amount equal to the Revolving Credit Commitment retained by it hereunder.
In the case of a participation, except as specified in Section
9.2(c), the participant shall not have any rights under this Agreement or any
other Senior Loan Document, all of such Bank's obligations under this Agreement
or any other Senior Loan Document shall remain unchanged and all amounts payable
by the Borrower hereunder or thereunder shall be determined as if such Bank had
not sold such participation. Any participant's rights against the Bank selling
such participation shall be set forth in the agreement executed by such Bank in
favor of such participant and shall not include any voting rights except with
respect to changes of the type referenced in clauses (i), (ii), (iii) or (iv),
of Section 11.1 and in clause (v) of Section 11.1 with respect to amending
clauses (i), (ii), (iii) or (iv) of Section 11.1.
Each Bank may furnish any publicly available information concerning
the Borrower and, on a confidential basis subject to receipt of a
confidentiality agreement in substantially the form of EXHIBIT M, any other
information concerning the Borrower in the possession of such Bank from time to
time to assignees and participants (including prospective assignees or
participants), PROVIDED such assignees and participants agree to be bound by the
provisions of Section 11.12.
11.12 CONFIDENTIALITY.
---------------
The Agent and the Banks each agree to keep confidential all
information obtained from the Borrower which is nonpublic and confidential or
proprietary in nature (including any information the Borrower specifically
designates as confidential), except as provided below, and to use such
information only in connection with their respective capacities under this
Agreement and for the purposes contemplated hereby. The Agent and the Banks
shall be permitted to disclose such information (i) to outside legal counsel,
accountants and other professional advisors who need to know such information in
connection with the administration and enforcement of this Agreement, subject to
receipt of written undertakings from such persons to maintain the
confidentiality, (ii) to prospective assignees and participants as contemplated
by Section 11.11 subject to compliance with the requirements of that Section,
(iii) to the extent requested by any bank regulatory authority or, with notice
to the Borrower to the extent practicable, as otherwise required by applicable
Law or by any subpoena or similar legal process, or in connection with any
investigation or proceeding arising out of the transactions contemplated by this
Agreement, (iv) if such information is already in the possession of the Bank on
a nonconfidential basis or is currently or becomes publicly available other than
as a result of a breach of this Agreement by the Banks or the Agent or is
currently or becomes available to the Banks or the Agent from a source not
subject to confidentiality restrictions, or (v) the Borrower shall have
consented to such disclosure.
11.13 COUNTERPARTS.
------------
This Agreement may be executed by different parties hereto on any
number of separate counterparts, each of which, when so executed and delivered,
shall be an original, and all such counterparts shall together constitute one
and the same instrument.
11.14 THE AGENT'S OR THE BANK'S CONSENT.
---------------------------------
Whenever the Agent's or any Bank's consent is required to be
obtained under this Agreement or any of the other Senior Loan Documents as a
condition to any action, inaction, condition or event, the Agent and each Bank
shall be authorized to give or withhold such consent in its sole and absolute
discretion and to condition its consent upon the giving of additional
collateral, the payment of money or any other matter.
11.15 EXCEPTIONS.
----------
The representations, warranties and covenants contained herein shall
be independent of each other and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exception be deemed to permit any action or omission that would be in
contravention of applicable Law (including the Investment Company Act).
11.16 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
---------------------------------------------
The Borrower hereby irrevocably consents to the non-exclusive
jurisdiction of the Court of Common Pleas of Allegheny County and the United
States District Court for the Western District of Pennsylvania, and waives
personal service of any and all process upon it and consents that all such
service of process be made by certified or registered mail directed to the
Borrower at the addresses provided for in Section 11.6 and service so made shall
be deemed to be completed upon actual receipt thereof. The Borrower waives any
objection to jurisdiction and venue of any action instituted against it as
provided herein and agrees not to assert any defense based on lack of
jurisdiction or venue. THE BORROWER, THE AGENT AND EACH OF THE BANKS HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING OR COUNTERCLAIM WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER SENIOR LOAN DOCUMENT OR THE COLLATERAL TO
THE FULL EXTENT PERMITTED BY LAW.
11.17 LIMITATION OF LIABILITY.
-----------------------
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER
OR ANY OTHER LOAN PARTY OR ANY OTHER PERSON AGAINST THE AGENT AND THE BANKS, OR
ANY OF THEM, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF
THE AGENT OR THE BANKS FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (AS
DIFFERENTIATED FROM DIRECT AND ACTUAL DAMAGES) IN RESPECT OF ANY CLAIM ARISING
FROM OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY STATEMENT,
COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF
LIABILITY); AND THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
(b) The parties to this Agreement are expressly put on notice of the limitation
of liability as set forth in the declarations of trust of certain of the
Borrower's Subsidiaries and agree that the obligations assumed by the Borrower
and its Subsidiaries pursuant to this Agreement and the other Senior Loan
Documents be limited in any case to the Borrower and its Subsidiaries and their
respective assets. The parties to this Agreement shall not seek satisfaction of
any obligation of the Borrower or its Subsidiaries under this Agreement from any
of the shareholders of the Borrower, the trustees, officers or agents of those
entities, or any of them, except as contemplated under the Pledge Agreement and
the declarations of trust of certain of the Borrower's Subsidiaries.
Notwithstanding the foregoing, nothing in such declarations of trust or
elsewhere shall prohibit the Agent on behalf of the Banks from pursuing any
remedies against any outside professionals or consultants employed by the
Companies.
11.18 TAX WITHHOLDING CLAUSE.
----------------------
At least five (5) Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Bank, each Bank
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it will deliver to each of the Borrower and the Agent
two (2) duly completed copies of (i) IRS Form W-9, 4224 or 1001, or other
applicable form prescribed by the IRS, certifying in either case that such Bank
is entitled to receive payments under this Agreement and the other Senior Loan
Documents without deduction or withholding of any United States federal income
taxes, or is subject to such tax at a reduced rate under an applicable tax
treaty, or (ii) Form W-8 or other applicable form or a certificate of the Bank
indicating that no such exemption or reduced rate is allowable with respect to
such payments. Each Bank which so delivers a Form W-8, W-9, 4224 or 1001 further
undertakes to deliver to each of the Borrower and the Agent two (2) additional
copies of such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Borrower
or the Agent, either certifying that such Bank is entitled to receive payments
under this Agreement and the other Senior Loan Documents without deduction or
withholding of any United States federal income taxes or is subject to such tax
at a reduced rate under an applicable tax treaty or stating that no such
exemption or reduced rate is allowable. The Agent shall be entitled to withhold
United States federal income taxes at the full withholding rate unless the Bank
establishes an exemption or at the applicable reduced rate as established
pursuant to the above provisions.
11.19 SYNDICATION AGENT.
-----------------
The Syndication Agent shall have no rights, obligations or duties
under this Agreement other than in its capacity as a Bank hereunder.
[SIGNATURE PAGES FOLLOW]
SIGNATURE PAGE 1 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Amended and Restated Senior Secured Credit
Agreement as of the date first above written.
FEDERATED INVESTORS, INC.
By: /S/ DENIS MCAULEY III
--------------------------------------
Name: Denis McAuley III
Title: Vice President
SIGNATURE PAGE 2 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
individually and as Agent
By: /S/ BRUCE G. SHEARER
--------------------------------------
Name: Bruce G. Shearer
Title: Vice President
SIGNATURE PAGE 3 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
THE BANK OF NEW YORK,
individually and as Syndication Agent
By: /S/ SCOTT BUITEKANT
--------------------------------------
Name: Scott Buitekant
Title: Vice President
SIGNATURE PAGE 4 OF 9 TO AMENDED AND RESTATED SENIOR SECURED TO CREDIT
AGREEMENT
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /S/ MEHUL MEHTA
--------------------------------------
Name: Mehul Mehta
Title: Vice President
SIGNATURE PAGE 5 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
FIRSTAR BANK, N.A.
By: /S/ DAVID J. DANNEMILLER
--------------------------------------
Name: David J. Dannemiller
Title: Vice President
SIGNATURE PAGE 6 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
STATE STREET BANK AND TRUST COMPANY
By: /S/ JOHN T. DALEY
--------------------------------------
Name: John T. Daley
Title: Vice President
SIGNATURE PAGE 7 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
NATIONAL CITY BANK OF PENNSYLVANIA
By: /S/ PAUL SAKALIK
--------------------------------------
Name: Paul Sakalik
Title: Vice President
SIGNATURE PAGE 8 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
BANK ONE, NA (Main Office Chicago)
By: /S/ NICOLE HOLZAPFEL
--------------------------------------
Name: Nicole Holzapfel
Title: Vice President
SIGNATURE PAGE 9 OF 9 TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT
CITIBANK, N.A.
By: /S/ PIERRE GUIGUI
--------------------------------------
Name: Pierre Guigui
Title: Vice President
SCHEDULE 1.1(A)
COMMITMENTS OF THE BANKS
REVOLVING CREDIT RATABLE
BANK COMMITMENT (US$) SHARE %
PNC Bank, National Association $ 25,000,000 16.66666671%
The Bank of New York $ 20,000,000 13.33333333%
Bank of America, National $ 17,500,000 11.66666666%
Association
Firstar Bank, N.A. $ 17,500,000 11.66666666%
State Street Bank and Trust $ 17,500,000 11.66666666%
Company
National City Bank of Pennsylvania $ 17,500,000 11.66666666%
Bank One, NA (Main Office Chicago) $ 17,500,000 11.66666666%
Citibank, N.A. $ 17,500,000 11.66666666%
TOTAL $150,000,000 100.00000000%
------------
SCHEDULE 11.6
NOTICE INFORMATION
FEDERATED INVESTORS, INC.
Federated Investors Tower
1001 Liberty Avenue
Pittsburgh, PA 15222-3779
Attn: John McGonigle
Telephone No.: (412) 288-1936
Telecopier No.: (412) 288-7578
PNC BANK, NATIONAL ASSOCIATION
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15265
Telephone No.: (412) 768-7503
Telecopier No. (412) 762-7353
Attention: Bruce G. Shearer
THE BANK OF NEW YORK
One Wall Street
17th Floor
New York, NY 10286
Telephone No.: (212) 635-6958
Telecopier No.: (212) 635-6348
Attention: Scott Buitekant
BANK OF AMERICA, NATIONAL
ASSOCIATION
Financial Institutions 1405
231 South LaSalle Street
Chicago, IL 60697
Telephone No.: (312) 828-4433
Telecopier No.: (312) 828-2147
Attention: Mehul Mehta
SCHEDULE 11.6
NOTICE INFORMATION
(CONTINUED)
FIRSTAR BANK, N.A.
1350 Euclid Avenue, Suite 220
Mail Code 4432
Cleveland, OH 44115
Telephone No.: (216) 623-9233
Telecopier No.: (216) 623-9208
Attention: David Dannemiller
STATE STREET BANK AND TRUST
COMPANY
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Telephone No.: (617) 662-2312
Telecopier No.: (617) 662-2325
Attention: John Daley
NATIONAL CITY BANK OF PENNSYLVANIA
20 Stanwix Street, 19th Floor
Pittsburgh, PA 15222-4802
Telephone No.: (412) 644-7727
Telecopier No.: (412) 355-2283
Attention: Paul Sakalik
SCHEDULE 11.6
NOTICE INFORMATION
(CONTINUED)
BANK ONE, NA
(MAIN OFFICE CHICAGO)
153 West 51st Street
6th Floor
New York, NY 10019
Telephone: (212) 373-1126
Telecopier: (212) 373-1393
Attention: Nicole Holzapfel
CITIBANK, N.A.
399 Park Avenue
12th Floor, Zone 11
New York, NY 10043
Telephone: (212) 559-2849
Telecopier: (212) 371-6309
Attention: Pierre Guigui