<PAGE>
EXHIBIT 10.1
ALL OBLIGATIONS HEREUNDER CONSTITUTE
"DESIGNATED SENIOR INDEBTEDNESS" WITHIN THE
MEANING OF ANY INDENTURES RESPECTING
SUBORDINATED DEBT OF THE BORROWER
(INCLUDING, WITHOUT LIMITATION, THAT
CERTAIN INDENTURE DATED AS OF APRIL 4, 2001
WITH BANKERS TRUST COMPANY, AS TRUSTEE, AS
AMENDED)
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SEVENTH AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JUNE 21, 2005
by and among
NCO GROUP, INC., AS BORROWER
and
THE
FINANCIAL INSTITUTIONS PARTY HERETO FROM TIME TO TIME, AS
LENDERS
and
CITIZENS BANK OF PENNSYLVANIA, AS ADMINISTRATIVE AGENT AND
ISSUER
--------------------------------------------------------------------------------
RBS SECURITIES
CORPORATION, AS THE LEAD ARRANGER AND THE SOLE BOOK RUNNER
and
NATIONAL CITY BANK, AS JOINT LEAD ARRANGER AND SYNDICATION
AGENT,
BANK OF AMERICA, N.A. AND WACHOVIA BANK, NATIONAL ASSOCIATION
AS
DOCUMENTATION AGENTS
and
HSBC BANK USA, NATIONAL ASSOCIATION, AS CO-AGENT
--------------------------------------------------------------------------------
<PAGE>
CREDIT AGREEMENT
THIS SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June
21, 2005, by and between NCO GROUP, INC., a
Pennsylvania corporation ("NCOG" or,
subject to Section 1.15 (Designation of
Additional Borrowers), the "BORROWER")
and the Lenders referred to on the
signature pages hereto (together with other
lenders party hereto from time to time
pursuant to Section 11.9 (Successors and
Assigns) below, and their successors and
assigns, the "LENDERS"), CITIZENS BANK
OF PENNSYLVANIA, a Pennsylvania
state-chartered bank ("CITIZENS") for itself and
as Administrative Agent for the other
Lenders (in such capacity, together with
its successors and assigns in such
capacity, the "ADMINISTRATIVE AGENT"), and
Citizens, as issuer of Letters of Credit
hereunder (in such capacity, together
with its successors and assigns in such
capacity, the "ISSUER"), NATIONAL CITY
BANK as Joint Lead Arranger and Syndication
Agent, BANK OF AMERICA, N.A. and
WACHOVIA BANK, NATIONAL ASSOCIATION as
Documentation Agents and HSBC BANK USA,
NATIONAL ASSOCIATION as Co-Agent.
Recitals:
A. NCO Financial Systems, Inc. ("NCO FINANCIAL") and Mellon Bank,
N.A.
("MELLON") entered into that certain Credit
Agreement dated as of July 28, 1995
("ORIGINAL CREDIT AGREEMENT"), pursuant to
which Mellon made available to NCO
Financial certain credit facilities.
B. The Original Credit Agreement was amended and restated on
September
5, 1996 (the "1996 CREDIT AGREEMENT")
pursuant to which NCO Financial, NCOG, NCO
Funding, Inc., and NCO of New York, Inc.
each became parties to the 1996 Credit
Agreement, and was further amended on
September 11, 1996, December 13, 1996, and
February 11, 1998.
C. The 1996 Credit Agreement was amended and restated as of March
23,
1998 (the "MARCH 1998 CREDIT AGREEMENT")
and was further clarified by those
certain Closing Memoranda dated May 5, 1998
and May 29, 1998.
D. The March 1998 Credit Agreement was amended and restated as
of
November 30, 1998 (the "NOVEMBER 1998
CREDIT AGREEMENT"), pursuant to which all
U.S. subsidiaries as of that date (other
than the then "Excluded Subsidiaries,"
as defined therein) of NCOG became parties
to the November 1998 Credit
Agreement. The November 1998 Credit
Agreement was modified by a Closing
Memorandum dated November 30, 1998, a
Global Amendment dated as of January 11,
1999 and a First Amendment dated February
11, 1999.
E. The November 1998 Credit Agreement was amended and restated as
of
May 20, 1999 (the "MAY 1999 CREDIT
AGREEMENT") under which the credit facilities
were increased and restructured. The May
1999 Credit Agreement was modified by a
Closing Memorandum dated as of May 20,
1999. In preparation for syndication of
the new reducing revolving credit facility,
certain other changes were made in
an interim draft of the May 1999 Credit
Agreement dated as of July 23, 1999;
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these changes were made retroactive to May
20, 1999 and approved by NCOG by
letter dated as of July 27, 1999.
F. The May 1999 Credit Agreement, as amended, was further amended
and
restated as of December 31, 1999 (the
"DECEMBER 1999 CREDIT AGREEMENT") under
which the credit facilities were further
restructured and otherwise modified.
G. The December 1999 Credit Agreement, as amended, including
without
limitation, as amended on October 31, 2002,
was further amended and restated as
of August 13, 2003 (the "AUGUST 2003 CREDIT
AGREEMENT") under which the credit
facilities were increased, modified and
extended.
H. The August 2003 Credit Agreement was amended on November 20,
2003,
was further amended on October 13, 2004,
and was further amended on March 17,
2005 (as so amended, the "EXISTING CREDIT
AGREEMENT").
I. The Borrower has requested that the Existing Credit Agreement
and
existing Loan Documents be further
modified, amended and restated, and the
Lenders have agreed to amend and restate
the Existing Credit Agreement, upon the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the
mutual
covenants herein contained and intending to
be legally bound hereby, the
Borrower and the Lenders agree that the
Credit Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
CREDIT FACILITIES
1.1 LOANS.
(a) RC Loans. Upon the terms and subject to the conditions of
this
Agreement (including all conditions
precedent in Section 3.1 (Conditions to
Initial Loans)), each Lender agrees to
make, from time to time during the period
from and including the Closing Date to but
excluding the Maturity Date, one or
more revolving credit loans ("RC LOANS") to
the Borrower in an aggregate unpaid
principal amount not exceeding at any time
such Lender's RC Commitment as set
forth on Schedule 1.1 at such time;
provided, however, that the Borrower shall
not request, and the Lenders shall have no
obligation to make, any RC Loans at
any time in excess of the Available RC
Commitment. The total amount of the RC
Commitment of all Lenders on the Closing
Date is $300,000,000.00. Up to
$25,000,000.00 of the Available RC
Commitment (the "LETTER OF CREDIT SUBLIMIT")
may be used for the issuance of stand-by
Letters of Credit upon the terms and
conditions set forth herein. The RC Loans
shall be borrowed, accrue interest and
be repaid as set forth below.
(b) Optional Increase in the RC Commitment. At any time after
the
Closing Date, the Borrower shall have the
right, from time to time and upon not
less than thirty (30) days' prior written
notice to the Administrative
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Agent, to increase the RC Commitment by up
to $100,000,000 in the aggregate, in
one or more increases, provided that:
(i) each increase in the RC Commitment shall be in an
aggregate principal amount of at least
$25,000,000 or a whole multiple of
$10,000,000 in excess thereof (or, if the
remaining portion of the optional
increase is less than $25,000,000, then in
an aggregate principal amount equal
to such remaining portion);
(ii) no Default or Event of Default shall have occurred and be
continuing or would result from any such
requested increase or borrowings
thereunder;
(iii) in connection with each proposed increase, Lenders or
third party financial institutions that
would constitute Eligible Assignees and
that are reasonably acceptable to the
Borrower and Administrative Agent commit
to the proposed increase;
(iv) if such increase is to take effect upon the consummation
of a Permitted Acquisition, then the
Borrower shall provide the Administrative
Agent with a Pro Forma Covenant Compliance
Certificate as required under the
definition of "Permitted Acquisition";
(v) the aggregate amount of all increases made pursuant to
this Section 1.1(b) shall not exceed
$100,000,000;
(vi) the proposed increase shall not cause the RC Commitment
(after giving effect to all prior increases
under this Section 1.1(b) and the
proposed increase) to exceed
$400,000,000;
(vii) increases in the RC Commitment pursuant to this Section
1.1(b) shall not increase or otherwise
affect the Letter of Credit Sublimit;
(viii) the RC Commitment of any Lender shall not be increased
without the approval of such Lender;
(ix) in the event that any existing Lender or any new lender
commits to such requested increase, (i) any
new lender will execute an accession
agreement to this Agreement in form and
substance reasonably acceptable to the
Administrative Agent, (ii) the RC
Commitment of any existing Lender which has
committed to provide any of the requested
increase shall be increased, (iii)
each Lender's pro rata share of the RC
Commitment shall be adjusted, (iv) the
Borrower shall make such borrowings and
repayments as shall be necessary to
effect the reallocation of the RC
Commitments (provided that, if such borrowings
and repayments would otherwise cause
liability for breakage costs, the Borrower
may make such borrowing and repayments at
such times as would eliminate such
breakage costs), and (v) other changes
shall be made to the Loan Documents as
may be necessary to reflect the aggregate
amount, if any, by which the Lenders
have agreed to increase their respective RC
Commitments or make new commitments
in response to the Borrower's request for
an increase pursuant to this Section
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1.1(b) and which other changes do not
adversely affect the rights of those
Lenders not participating in the increase;
and
(x) the Borrower shall provide the Administrative Agent with
written certification to the effect that,
after giving effect to such proposed
increase, the Obligations under this
Agreement and the other Loan Documents are
permitted by the Existing Subordinated Note
Indenture.
1.2 MANNER OF BORROWING.
(a) Notice of Borrowing. The Borrower shall give the
Administrative
Agent notice (which shall be irrevocable),
in the case of Prime Rate Loans, no
later than 12:00 p.m. (Philadelphia,
Pennsylvania time) on the Business Day for
the making of such Loans and, in the case
of LIBO Rate Loans, 12:00 p.m.
(Philadelphia, Pennsylvania, time) three
(3) Business Days before the requested
date for the making of such Loans. Each
such notice shall be in substantially
the form of Exhibit B hereto and shall
specify (i) the requested date for the
making of such Loan(s) which date shall be
a Business Day, (ii) the Type or
Types of Loans requested and (iii) the
amount of each such Type of Loan, which
in the case of RC Loans shall be
$1,000,000.00 or any integral multiple of
$500,000.00 in excess thereof (except that
the amount of a requested RC Loan may
be less if the amount requested is equal to
the total Available RC Commitment).
Upon receipt of any such notice, the
Administrative Agent shall promptly notify
each applicable Lender of the contents
thereof and of the amount and Type of
each Loan to be made by such Lender on the
requested date specified therein.
Notwithstanding the foregoing, the
Administrative Agent in its sole discretion
may agree to different timing of notices
for borrowings on the Closing Date.
(b) Funding by Lenders. Not later than 1:00 p.m. (Philadelphia,
Pennsylvania time) on each requested date
for the making of Loans, each Lender
shall make available to the Administrative
Agent, in Dollars and in funds
immediately available to the Administrative
Agent at the office designated by
the Administrative Agent, the Loans to be
made by such Lender on such date,
provided, however, that if a Lender does
not receive timely notice from the
Administrative Agent as set forth in
paragraph (a) above, such Lender shall fund
the required amount promptly upon receipt
of such notice. The obligations of the
Lenders hereunder are several; accordingly,
any Lender's failure to make any
Loan to be made by it on the requested date
therefor shall not relieve any other
Lender of its obligation to make any Loan
to be made by it on such date, but the
latter shall not be liable for the former's
failure.
(c) Permitted Assumption as to Funding. Unless the
Administrative
Agent shall have received notice from a
Lender prior to 1:00 p.m. (Philadelphia,
Pennsylvania time) on the requested date
for the making of any Loan that such
Lender will not make available to the
Administrative Agent the Loan requested to
be made by it on such date, the
Administrative Agent may assume that such Lender
has made such Loan available. The
Administrative Agent in its sole discretion
and in reliance upon such assumption, may
make available to the Borrower on the
requested date a corresponding amount on
behalf of such Lender. If and to the
extent such Lender shall not have made
available to the Administrative Agent the
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Loans requested to be made by such Lender
on such date and the Administrative
Agent shall have so made available to the
Borrower a corresponding amount on
behalf of such Lender, (i) such Lender
shall, on demand, pay to the
Administrative Agent such corresponding
amount together with interest thereon,
for each day from the date such amount
shall have been so made available by the
Administrative Agent to the Borrower until
the date such amount shall have been
paid in full to the Administrative Agent,
at the Federal Funds Rate until (and
including) the third Business Day after
demand is made and thereafter at the
Prime Rate, and (ii) the Administrative
Agent shall be entitled to all interest
payable by Borrower on such amount for the
period commencing on the date such
amount was advanced by the Administrative
Agent to but not including the date on
which such amount is received by the
Administrative Agent from such Lender.
Moreover, any Lender that shall have failed
to make available the required
amount shall not be entitled to vote on
such matters as Lenders or Majority
Lenders are otherwise entitled to vote on
or consent to or approve under this
Agreement and the other Loan Documents
until such amount with interest is paid
in full to the Administrative Agent by such
Lender. Without limiting any
obligations of any Lender pursuant to this
paragraph (c), if such Lender does
not pay such corresponding amount promptly
upon the Administrative Agent's
demand therefor, the Administrative Agent
shall notify the Borrower and the
Borrower shall promptly repay such
corresponding amount to the Administrative
Agent together with accrued interest
thereon at the applicable rate or rates on
such Loans.
(d) Disbursements of Funds to Borrower. All amounts made
available
to the Administrative Agent in accordance
with paragraph (b) above shall be
disbursed by the Administrative Agent
promptly but in any event not later than
3:00 p.m. (Philadelphia, Pennsylvania time)
on the requested date therefor in
Dollars, in funds immediately available to
the Borrower by crediting such amount
to an account of Borrower at the
Administrative Agent's Domestic Lending Office
or in such other manner as may be agreed to
by Borrower and the Administrative
Agent.
1.3 REPAYMENTS. The aggregate outstanding principal amount of the
RC
Loans shall mature and become due and
payable, and shall be repaid by the
Borrower, on the Maturity Date or at such
earlier time as is specified in this
Agreement. Borrower shall also repay
immediately the amount by which the
outstanding RC Loans plus the Contingent
Reimbursement Obligations plus any
unreimbursed Drawings exceeds the RC
Commitment at any time following a
reduction in the RC Commitment.
1.4 PREPAYMENTS.
(a) Optional Prepayments. The Borrower may, at any time and
from
time to time, prepay the Loans in whole or
in part, without premium or penalty
(but with any payment required under
Section 2.4 (Breakage)), except that any
optional prepayment (other than a
prepayment of all outstanding Loans) shall be
in an aggregate principal amount of
$500,000.00 or any integral multiple
thereof. Amounts to be so prepaid shall
irrevocably be due and payable on the
date specified in the applicable notice of
prepayment delivered pursuant to
paragraph (b) of this Section 1.4 together
with interest thereon as provided in
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Section 1.7 (Interest), other fees, charges
and expenses set forth herein and
together with any payment required under
Section 2.4 (Breakage).
(b) Application and Timing of Prepayments of Optional
Prepayments.
(i) Notice. The Borrower shall give the Administrative Agent
notice of each optional prepayment of
Loans, which notice, in the case of a
prepayment of Prime Rate Loans, shall be
given no later than 1:00 p.m.
(Philadelphia, Pennsylvania time) one (1)
Business Day before and, in the case
of a prepayment of LIBO Rate Loans, no
later than 12:00 P.M. (Philadelphia,
Pennsylvania, time) three (3) Business Days
before, the date of such prepayment.
Each such notice of prepayment shall be in
substantially the form of Exhibit C
hereto and shall specify (i) the date such
prepayment is to be made, and (ii)
the amount and Type and, in the case of any
LIBO Rate Loan, the last day of the
applicable Interest Period for the Loan to
be prepaid. Upon receipt of any such
notice, the Administrative Agent shall
promptly notify each applicable Lender of
the contents thereof.
(ii) Timing and Application of Prepayments of Loans. Except as
otherwise provided in this Agreement
(including without limitation as specified
by Section 7.3 (Application of Proceeds)),
any optional prepayments of Loans
pursuant to the terms hereof shall be
applied in the following order:
(1) first, prepayments shall be applied against any
interest, breakage and other fees, charges and expenses due
and payable in respect of the Loans prepaid and Commitments
being reduced; and
(2) second, prepayments shall be applied against the
RC Loans but with no corresponding reduction in the RC
Commitment unless such payment is made in accordance with
Section 1.6 (RC Commitment Reductions).
Any excess shall be applied to any other amounts then due and
payable in respect of the Obligations (first to interest, fees
and indemnities and then to principal and other amounts) then
to the other Secured Obligations then due and payable, and, if
all such Secured Obligations have been then paid in full, then
any excess amount shall be returned to Borrower or as
otherwise required by applicable Law provided, however, that
in the case of a prepayment applied against principal of the
Loans, the payment will, unless otherwise directed by the
Borrower in writing (which direction shall be irrevocable when
given) be applied first to Prime Rate Loans and then to LIBO
Rate Loans with Interest Periods expiring at the time of such
payment, and the
excess, if any, will be held by the
Administrative Agent in an interest-bearing cash collateral
account (or such other account as is agreed between the
Borrower and the Administrative Agent) for application to LIBO
Rate Loans as their successive Interest Periods expire.
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(c) Repayments in Connection with Issuance of Equity. At any
time
that NCOG shall issue any equity (exclusive
of equity issued pursuant to clauses
(a) through (d) of Section 6.11 (Stock
Issuance)), the Borrower shall prepay, on
the date of such issuance, such amount of
the Loans as is equal to twenty-five
percent (25%) of the net cash proceeds of
such equity (or such lesser amount of
the Loans as is then outstanding).
1.5 PAYMENTS BY THE BORROWER IN GENERAL.
(a) Time, Place and Manner. All payments due to the
Administrative
Agent and the Lenders under the Loan
Documents shall be made to the
Administrative Agent at the office
designated by the Administrative Agent on the
signature pages hereto or to such other
Person or at such other address as the
Administrative Agent may designate by
written notice to Borrower. Until further
notice from the Administrative Agent and
except as otherwise provided herein,
all such payments shall be made by charging
the Borrower's deposit account with
the Administrative Agent as provided in
Section 1.5(c) (Authorization to Charge
Accounts). Except as otherwise set forth in
this Agreement, a payment shall not
be deemed to have been made on any day
unless such payment has been received by
the required Person, at the required place
of payment, in Dollars in funds
immediately available to such Person, no
later than 1:00 p.m. (Philadelphia,
Pennsylvania time) on such day; provided,
however, that the failure of the
Borrower to make any such payment by such
time shall not constitute an Event of
Default hereunder so long as such payment
is received no later than 3:00 p.m.
(Philadelphia, Pennsylvania time) on such
day, but any such payment received
later than 1:00 p.m. (Philadelphia,
Pennsylvania time) on such day shall be
deemed to have been made on the next
Business Day for the purpose of calculating
interest on the amount paid, provided
further, that any such payment made with
the proceeds of Loans shall be deemed to
have been made on the date of the
making of such Loans, so long as such
proceeds are immediately so applied and
are not otherwise disbursed to the
Borrower.
(b) No Reductions. All payments due to the Administrative Agent
or
any Lender under this Agreement and the
other Loan Documents, shall be made by
the Borrower without any reduction or
deduction whatsoever, including any
reduction or deduction for any charge,
set-off, holdback, recoupment or
counterclaim (whether sounding in tort,
contract or otherwise).
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent to
charge any amounts due under this
Agreement against any or all of the demand
deposit or other accounts (other than
accounts containing escrow or trust funds)
of Borrower with the Administrative
Agent (whether maintained at a branch or
office located within or without the
United States), with the Borrower remaining
liable for any deficiency. The
Administrative Agent shall give the
Borrower one day prior notice of the amount
to be charged; provided, however, that
advance notice shall not be required to
charge any amount due for interest or the
Unused Fee, and the Administrative
Agent shall only advise of such charge
after such charge has been made.
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(d) Extension of Payment Dates if Not a Business Day. Whenever
any
payment to the Administrative Agent or any
Lender under the Loan Documents would
otherwise be due (except by reason of
acceleration) on a day that is not a
Business Day, such payment shall instead be
due on the next succeeding Business
Day unless, in the case of a payment of the
principal of LIBO Rate Loans, such
extension would cause payment to be due in
the next succeeding calendar month,
in which case such due date shall be
advanced to the next preceding Eurodollar
Business Day. If the due date for any
payment under the Loan Documents is
extended (whether by operation of any Loan
Document, applicable Law or
otherwise), such payment shall bear
interest for such extended time at the rate
of interest applicable hereunder.
(e) Disbursement of Payments to Lenders. The Administrative
Agent
shall promptly distribute to each
applicable Lender its ratable share of each
payment received by the Administrative
Agent under the Loan Documents for the
account of such Lender by crediting an
account of such Lender at the
Administrative Agent's office or by wire
transfer to an account of such Lender
at an office of any other commercial bank
located in the United States or at any
Federal Reserve Bank designated by such
Person. Unless the Administrative Agent
shall have received notice from Borrower
prior to the date on which any payment
is due to any Lenders under the Loan
Documents that the Borrower will not make
such payment in full, the Administrative
Agent may assume that the Borrower has
made such payment in full to the
Administrative Agent on such date and the
Administrative Agent, in its sole
discretion may, in reliance upon such
assumption, cause to be distributed to each
applicable Lender on such due date,
a corresponding amount with respect to the
amount then due to such Person. If
and to the extent that the Borrower shall
not have so made such payment in full
to the Administrative Agent, and the
Administrative Agent shall have so
distributed to such Lender or Lenders a
corresponding amount, such Lender shall,
on demand, repay to the Administrative
Agent the amount so distributed together
with interest thereon, for each day from
the date such amount is distributed to
such Lender until the date such Person
repays such amount to the Administrative
Agent, at the Federal Funds Rate until (and
including) the third Business Day
after demand is made and thereafter at the
Prime Rate. Moreover, any Lender that
shall have failed to make available the
required amount shall not be entitled to
vote on such matters as Lenders or Majority
Lenders are otherwise entitled to
vote on or consent to or approve under this
Agreement and the other Loan
Documents until such amount with interest
is paid in full to the Administrative
Agent by such Lender. Nothing in this
Section 1.5 shall relieve the Borrower
from any payment obligations.
(f) Breakage Costs on LIBO Rate Loans. Any repayment or
prepayment
of a LIBO Rate Loan made on a day other
than the last day of the applicable
Interest Period therefor shall be subject
to payments in respect of breakage
costs as required to be paid in respect
thereof pursuant to Section 2.4
(Breakage) below.
1.6 RC COMMITMENT REDUCTIONS.
(a) Optional RC Commitment Reduction or Termination. The
Borrower
may reduce or terminate the RC Commitment
by giving the Administrative Agent
notice (which shall be irrevocable) thereof
no later than 11:00 a.m.
(Philadelphia, Pennsylvania, time) on the
third Business Day before the
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requested date of such reduction or the
fifth Business Day before the requested
date of such termination, as applicable,
provided, that each partial reduction
of the RC Commitment shall be in an amount
equal to $5,000,000.00 or any
integral multiple of $1,000,000.00 in
excess thereof and, provided, further,
that no reduction shall reduce the RC
Commitment to an amount less than the
aggregate of the principal amount of all RC
Loans outstanding on such date
(after giving effect to any repayment or
prepayment of RC Loans made on or prior
to such date) plus the amount of any
unreimbursed Drawings plus, subject to the
following proviso, any Contingent
Reimbursement Obligations, provided, if the
Borrower wishes to terminate in full (but
not in part) the RC Commitment at a
time when there are any outstanding Letters
of Credit, the RC Commitment may be
so terminated and the Collateral under the
Loan Documents may be released so
long as the Borrower deposits cash in an
amount equal to 105% of the Contingent
Reimbursement Obligations, to be held by
the Administrative Agent in an
interest-bearing cash collateral account
for the benefit of and acceptable to
such Issuer, for application to obligations
under such Letters of Credit as such
obligations come due. Upon receipt of any
such notice, the Administrative Agent
shall promptly notify each Lender of the
contents thereof and the amount (based
on a pro rata reduction to each Lender's RC
Commitment) to which such Lender's
RC Commitment is to be reduced.
(b) No Reinstatement of RC Commitment. Subject to the provisions
of
Section 1.1(b) (Optional Increase in the RC
Commitment), once reduced hereunder,
the RC Commitment shall not be restored
without the written consent of all
Lenders.
1.7 INTEREST.
(a) Interest Rates in General. Subject to the terms and
conditions
of this Agreement, each Loan, at the option
of the Borrower, shall bear interest
on the outstanding principal amount thereof
until paid in full at a rate per
annum equal to (i) the Prime Rate as in
effect from time to time plus the
Applicable Margin or (ii) the applicable
LIBO Lending Rate for a specified
Interest Period plus the Applicable
Margin.
(b) Election of LIBO Rate. Unless otherwise designated by the
Borrower as a LIBO Rate Loan in accordance
with this paragraph (b), each Loan
shall be deemed to be a Prime Rate Loan as
more fully set forth below.
(i) Prime Rate Unless Otherwise Designated. Prime Rate Loans
shall continue as Prime Rate Loans unless
and until such Loans are converted
into Loans of another Type. LIBO Rate Loans
for any Interest Period shall
continue as Loans of such Type until the
end of the then current Interest Period
therefor, at which time they shall be
automatically converted into Prime Rate
Loans unless Borrower shall have given the
Administrative Agent notice in
accordance with clause (ii) below
requesting that such Loans continue as LIBO
Rate Loans for another Interest Period of a
specified duration.
(ii) Election of LIBO Rate. To elect a LIBO Rate, Borrower
shall give the Administrative Agent notice
(which shall be irrevocable) no later
than 12:00 p.m. (Philadelphia,
Pennsylvania, time) three (3) Eurodollar Business
Days before the requested date of the
funding, conversion or continuation which
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date shall be a Eurodollar Business Day.
Each such notice shall be in
substantially the form of Exhibit D hereto
and shall specify (A) the requested
date of such funding, conversion or
continuation, (B) whether the subject Loan
is a new advance or an existing Loan that
is to be converted or continued, (C)
in the case of any LIBO Rate Loan being
continued, the last day of the current
Interest Period, and (D) the amount of, and
the desired Interest Period for, the
Loan subject to such LIBO Rate election,
provided that the Borrower shall not be
entitled to select an Interest Period for
any Loan which shall end on a date
later than the Maturity Date. Upon receipt
of any such notice, the
Administrative Agent shall promptly notify
each applicable Lender of the
contents thereof. For a LIBO Rate Loan in
connection with which the Borrower has
or may incur Hedging Obligations, the
applicable Hedging Agreement may place
additional limitations on the Borrower's
ability to select or change the
duration of Interest Periods with respect
to such LIBOR Rate Loan.
(iii) LIBO Rate Suspended During Event of Default.
Notwithstanding anything to the contrary
contained in clause (i) or (ii) of this
paragraph (b), so long as an Event of
Default shall have occurred and be
continuing, the Administrative Agent may
(and, at the request of the Majority
Lenders, shall) notify Borrower that Loans
may only be converted into or
continued upon the expiration of the
applicable current Interest Period therefor
as Prime Rate Loans or Loans of such
specified Types as shall be acceptable to
the Majority Lenders. Thereafter, until no
Event of Default shall continue to
exist, Loans may not be converted into or
continued as Loans of any Type other
than Prime Rate Loans or one or more of
such specified Types.
(iv) Limitation on Types of Loans. Notwithstanding anything to
the contrary contained in this Agreement,
the Borrower shall borrow, prepay,
convert and continue Loans in a manner such
that (A) unless otherwise agreed to
by the Administrative Agent, the aggregate
principal amount of LIBO Rate Loans
of the same Type shall, at all times, be
not less than $1,000,000.00 and (B)
there shall be, at any one time, no more
than ten (10) Interest Periods for LIBO
Rate Loans in effect.
(v) Flexibility as to Source. Each Lender may fund LIBO Rate
Loans from any source that such Lender
deems (in its sole discretion)
appropriate without loss of any rights
hereunder.
(c) Interest Payment Dates. Interest shall be payable, (i) in
the
case of Prime Rate Loans, monthly in
arrears on each Monthly Payment Date, (ii)
in the case of LIBO Rate Loans, on the last
day of each applicable Interest
Period (and, in the case of any LIBO Rate
Loan having an Interest Period longer
than three months, on each three month
anniversary of the first day of such
Interest Period) and (iii) in the case of
any Loan, when such Loan shall be due
(whether at maturity, upon mandatory
prepayment, by reason of notice of
prepayment or acceleration or otherwise) or
converted, but only to the extent
then accrued on the amount then so due or
converted.
(d) Default Rate. At any time that an Event of Default shall
have
occurred and shall be continuing, at the
Administrative Agent's option (or at
the direction of the Majority Lenders) but
without notice to Borrower or any
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other Person, any amount payable hereunder
and under each other Loan Document
shall bear interest (whether before or
after judgment), payable on demand, at a
rate per annum equal to the applicable
Default Rate. Any such determination by
the Administrative Agent or Majority
Lenders may be applied retroactively to the
date of the Event of Default.
1.8 FEES.
(a) Unused Fee. The Borrower shall pay to the Administrative
Agent,
for the ratable account of each Lender with
an RC Commitment, an unused fee
("UNUSED FEE") calculated at a rate per
annum equal to the percentage amount set
forth below, under the caption "Unused Fee"
opposite the relevant Consolidated
Funded Debt/Consolidated EBITDA Ratio, on
the average daily unused amount of
such Lender's RC Commitment for each day
from and including the Closing Date to
but excluding the Maturity Date:
Consolidated Funded Debt/
Consolidated EBITDA Ratio
Unused Fee
-------------------------
----------
< 1.00
.20%
-
> 1.00 and < 1.50
.20%
-
> 1.50 and < 2.00
.25%
-
> 2.00 and < 2.50
.25%
-
> 2.50
.30%
The Unused Fee shall be payable in arrears
(i) on successive Quarterly Payment
Dates beginning with the first Quarterly
Payment Date after the Closing Date
(ii) on the date of any reduction of the RC
Commitment (to the extent accrued
and unpaid on the amount of such reduction)
and (iii) on the Maturity Date. The
Unused Fee shall be adjusted on the first
Business Day of the month after
delivery of each Officer's Compliance
Certificate under Section 5.1 (Basic
Reporting Requirements) or in the event of
any Permitted Acquisition, on the
first Business Day of the month after
closing and delivery of the Pro-Forma
Covenant Compliance Certificate required
for the acquisition. If an Officer's
Compliance Certificate is required to be
delivered pursuant to Section 5.1
(Basic Reporting Requirements) and is not
delivered by its deadline, then five
(5) Business Days after notice to Borrower
the Unused Fee shall be the highest
percentage specified above until the
Officer's Compliance Certificate is so
delivered. Notwithstanding the foregoing,
the Unused Fee will be fixed at .20%
from the Closing Date through the date of
delivery to the Administrative Agent
of the Officer's Compliance Certificate
required under Section 5.1 (Basic
Reporting Requirements) with respect to
Borrower's June 30, 2005 financial
statements.
(b) Letter of Credit Fees. The Borrower shall pay to the Issuer
for
the ratable benefit of the Lenders with an
RC Commitment, a "Letter of Credit
Fee" on the face amount of each Letter of
Credit at a rate per annum equal to
the Applicable Margin for LIBO Rate Loans.
All such fees shall be payable upon
issuance and each extension, if any, of
each Letter of Credit and, if the Letter
of Credit is "evergreen", on each
anniversary of such issuance for so long as
the Letter of Credit remains outstanding
(it being acknowledged and agreed that,
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<PAGE>
pursuant to paragraph (b) (Terms) of
Section 1.14 (Issuance of Letters of
Credit), no Letter of Credit shall have an
expiration date which is extendable
under an "evergreen" or similar provision
unless the Issuer expressly agrees to
the same in its sole discretion in any
particular case). The Borrower shall also
pay to the Issuer for the Issuer's sole
account the Issuer's then in effect
standard document preparation fees and
reasonable administrative expenses
payable with respect to Letters of
Credit.
(c) Other Fees. The Borrower shall pay to the Administrative
Agent
for the sole account of the Administrative
Agent, such fees, including an annual
Administrative Agent's fee, as have been or
may be agreed to in writing by the
Borrower and the Administrative Agent in
connection with this Agreement and the
transactions contemplated by this
Agreement.
1.9 COMPUTATION OF INTEREST AND FEES. Interest and fees shall
be
computed on the basis of a year of 360 days
and paid for the actual number of
days elapsed. Interest and fees for any
period shall be calculated from and
including the first day thereof to but
excluding the last day thereof.
1.10 PROMISSORY NOTES; RECORDS OF ACCOUNT. Each Lender's Loans and
the
Borrower's obligations to repay such Loans
with interest in accordance with the
terms of this Agreement shall be evidenced
by this Agreement, the records of the
Administrative Agent and such Lender and a
single RC Note payable to the order
of such Lender. Subject to the following
sentence, the records of each Lender
shall be prima facie evidence of such
Lender's Loans and, in each case, of
accrued interest thereon and all payments
made in respect thereto. In the event
that there is any dispute concerning the
amount of any such obligations, the
amount of each Lender's Commitment and the
amount of outstanding Obligations of
each and every Type shall at all times be
ascertained from the records of the
Administrative Agent, which shall be
conclusive absent manifest error. Notes may
become Registered Notes pursuant to the
terms of Section 1.13(a) (Registered
Notes and Loans - Request for Registration)
below.
1.11 PRO RATA TREATMENT. Except to the extent otherwise
provided
herein, Loans shall be made by, and
principal, interest and fees in respect
thereof shall be paid or repaid to, the
Lenders pro rata in accordance with
their respective Commitments, if any, in
such Loans.
1.12 TAXES ON PAYMENTS.
(a) Taxes Payable by the Borrower. If any Tax is required to be
withheld or deducted from, or is otherwise
payable by the Borrower in connection
with, any payment due to the Administrative
Agent or any Foreign Lender the
Borrower (i) shall, if required, withhold
or deduct the amount of such Tax from
such payment and, in any case, pay such Tax
to the appropriate taxing authority
in accordance with applicable Law and (ii)
except in the case of any Bank Tax,
shall pay to such Lender or the
Administrative Agent such additional amounts as
may be necessary so that the net amount
received by such Person with respect to
such payment, after withholding or
deducting all Taxes required to be withheld
or deducted (including Taxes on additional
amounts payable under this paragraph
(a)), is equal to the full amount payable
hereunder. If any Tax is withheld or
deducted from, or is otherwise payable by
the Borrower in connection with, any
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<PAGE>
payment due to any Lender or the
Administrative Agent hereunder, the Borrower
shall furnish to such Person the original
or a certified copy of a receipt (if
any) for such Tax from the applicable
taxing authority or other evidence of
payment thereof satisfactory to such Person
within 30 days after the date of
such payment (or, if such receipt shall not
have been made available by such
taxing authority within such time, the
Borrower shall use reasonable efforts to
promptly obtain and furnish such receipt).
If the Borrower fails to pay any such
Taxes when due to the appropriate taxing
authority or fail to remit to any
Lender or the Administrative Agent the
required receipts or other evidence of
payment thereof satisfactory to such
Person, the Borrower shall indemnify such
Person for any Taxes, interest, penalties
or additions to Tax that may become
payable by such Person as a result of any
such failure.
(b) Taxes Payable by any Foreign Lender or the Administrative
Agent. The Borrower shall, promptly upon
request by any Foreign Lender or the
Administrative Agent, pay to such Person an
amount equal to (i) all Taxes (other
than Bank Taxes and without duplication of
amounts paid pursuant to the
preceding paragraph (a)) payable by such
Person with respect to any payment due
to such Person hereunder and (ii) all Taxes
(other than Bank Taxes) payable by
such Person as a result of payments made by
the Borrower (whether made to a
taxing authority or to such Person pursuant
to the preceding paragraph (a) or
this paragraph (b)).
(c) Credits and Deductions. If any Lender or the Administrative
Agent is, in its sole opinion, able to
apply for any refund, offset, credit,
deduction or other reduction in Taxes by
reason of any payment made by the
Borrower under the preceding paragraph (a)
or (b), such Lender or the
Administrative Agent, as the case may be,
shall use reasonable efforts to obtain
such refund, offset, credit, deduction or
other reduction and, upon receipt
thereof, will pay to the Borrower such
amount, not exceeding the increased
amount paid by the Borrower, as is equal to
the net after-tax value to such
Lender or the Administrative Agent, in its
sole opinion, of such part of such
refund, offset, credit, deduction or other
reduction as it considers to be
allocable to such payment by the Borrower,
having regard to all of such Person's
dealings giving rise to similar refunds,
offsets, credits, deductions or other
reductions in relation to the same tax
period and to the cost of obtaining the
same; provided, however, that if such
Person has made a payment to the Borrower
pursuant to this paragraph (c) and the
applicable refund, offset, credit,
deduction or other reduction in Tax is
subsequently disallowed, the Borrower
shall, promptly upon request by the
Administrative Agent or such Lender refund
to such Person that portion of such payment
determined by such Person, in its
sole opinion, relating to such
disallowance; and provided, further that (i) the
Administrative Agent or such Lender, as the
case may be, shall not be obligated
to disclose to the Borrower any information
regarding its Tax affairs or
computations and (ii) nothing in this
paragraph (c) shall interfere with the
right of such Person to arrange its Tax
affairs as it deems appropriate.
(d) Exemption from U.S. Withholding Taxes. Each Foreign Lender
shall submit to the Borrower and the
Administrative Agent, on or before the
fifth day prior to the first Monthly
Payment Date occurring after the Closing
Date (or, in the case of a Foreign Lender
that became a Lender by assignment,
promptly upon such assignment), two duly
completed and signed copies of either
Form 1001 of the United States Internal
Revenue Service, Form W-9, W-8ECI or
W-8BEN, or other applicable form prescribed
by the Internal Revenue Service of
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<PAGE>
the United States, certifying in either
case that such Lender is entitled to
receive payments under this Agreement and
the Notes without deduction or
withholding of any United States federal
income taxes, or are subject to such
tax at a reduced rate under an applicable
tax treaty, or Form W-8BEN or other
applicable form or a certificate of the
Lender indicating that no such exemption
or reduced rate is allowable with respect
to such payments. Each Lender which so
delivers a Form W-8BEN, W-9, or W-8ECI
further undertakes to deliver to each of
the Borrower and the Administrative Agent
two 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
Administrative Agent, either certifying
that such Lender is entitled to receive
payments under this Agreement and the Notes
without deduction or withholding of
any United States federal income taxes or
are 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 Administrative Agent
shall be entitled to withhold United
States federal income taxes at the full
withholding rate unless the Lender
establishes an exemption or at the
applicable reduced rate as established
pursuant to the above provisions. Upon the
request of the Borrower or the
Administrative Agent, each Lender that is
not a Foreign Lender shall submit to
the Borrower and the Administrative Agent a
certificate to the effect that it is
not a Foreign Lender.
(e) Survival. Obligations under this Section 1.12 shall survive
payment of the Loans and the other
Obligations.
1.13 REGISTERED NOTES AND LOANS.
(a) Request for Registration. Any Lender may request the
Borrower
(through the Administrative Agent), and the
Borrower agrees thereupon, to
register such Loans as provided in Section
1.13(c) (Registration of Loans) and
to issue such Lender's Note(s), evidencing
such Loans, or to exchange such
Note(s) for new Note(s), registered as
provided in Section 1.13(c) (each, a
"REGISTERED NOTE"). A Registered Note may
not be exchanged for a Note that is
not in registered form. A Registered Note
shall be deemed to be and shall be a
Note for all purposes of this Agreement and
the other Loan Documents.
(b) Delivery of Tax Forms. Each Foreign Lender that requests or
holds a Registered Note pursuant to Section
1.13(a) (Request for Registration)
or registers its Loans pursuant to Section
1.13(a) (a "REGISTERED LENDER") (or,
if such Registered Lender is not the
beneficial owner thereof, such beneficial
owner) shall deliver to Borrower (with a
copy to the Administrative Agent) prior
to or at the time such Foreign Lender
becomes a Registered Lender, the
applicable form described in Section
1.12(d) (or such successor and related
forms as may from time to time be adopted
by the relevant taxing authorities of
the United States) together with an annual
certificate stating that such
Registered Lender or beneficial owner, as
the case may be, is not a "bank"
within the meaning of Section 881(c)(3)(A)
of the Code and is not otherwise
described in Section 881(c)(3) of the Code.
Each Registered Lender or beneficial
owner, as the case may be, shall promptly
notify Borrower (with a copy to the
Administrative Agent) if at any time such
Registered Lender or beneficial owner,
as the case may be, determines that it is
no longer in a position to provide
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<PAGE>
such previously delivered certificate to
the Borrower (or any other form of
certification adopted by the relevant
taxing authorities of the United States
for such purposes).
(c) Registration of Loans. The Administrative Agent, acting,
for
this purpose, as agent of the Borrower,
shall, upon request of any Registered
Lender, enter in the Record the name,
address and taxpayer identification number
(if provided) of the Registered Lender or
beneficial owner, as the case may be.
In addition to the requirements of Section
11.9 (Successors and Assigns), a
Registered Note and the Loans evidenced
thereby (or such Loans pending delivery
of such Registered Note) or any other Loans
registered pursuant to Section
1.13(a) (Request for Registration) above
may be assigned or otherwise
transferred in whole or in part only by
registration of such assignment or
transfer of such Registered Note and/or the
Loans so registered on the Record
(and each such Registered Note shall
expressly so provide). Any assignment or
transfer of all or part of such Loans and
such Registered Note shall be
registered on the Record only upon
compliance with the provisions of Section
11.9 (Successors and Assigns) and, in the
case of Registered Notes, surrender
for registration of assignment or transfer
of the Registered Note evidencing
such Loans, duly endorsed by (or
accompanied by a written instrument of
assignment or transfer fully executed by)
the Registered Lender thereof, and
thereupon one or more new Registered Notes
in the same aggregate principal
amount shall be issued to the designated
assignee(s) or transferee(s) and, if
less than all of such Registered Notes is
thereby being assigned or transferred,
the assignor or transferor.
1.14
ISSUANCE OF LETTERS OF CREDIT.
(a) In General. Upon the terms and subject to the conditions of
this Agreement, the Issuer shall, from time
to time, from the Closing Date to
the date which is 90 days prior to the
Maturity Date (or such shorter time
period as to which the Administrative Agent
and Issuer may agree, in their sole
and absolute discretion), issue one or more
stand-by Letters of Credit for the
account of Borrower and/or any Restricted
Subsidiary, provided that the sum of
the Contingent Reimbursement Obligations
(after giving effect to the requested
Letter of Credit) plus the aggregate unpaid
amount of all Drawings under Letters
of Credit shall not exceed the Letter of
Credit Sublimit and provided, further,
that the face amount of the Letter of
Credit so requested shall not exceed the
Lenders' Available RC Commitments at such
time. Each Letter of Credit shall be
in a form and shall contain such terms as
shall be reasonably satisfactory to
the Issuer. Letters of Credit shall be
issued only on a Business Day and shall
be used for the general corporate purposes
of the Borrower or for such other
purposes as shall be acceptable to the
Issuer in its sole discretion. The
issuance of a Letter of Credit, or any
unreimbursed Drawing thereunder, shall
reduce the Available RC Commitment by an
amount equal to the Contingent
Reimbursement Obligations under such Letter
of Credit or the amount of such
unreimbursed Drawing, as the case may be.
Letters of Credit issued under the
Existing Credit Agreement are Letters of
Credit within the meaning of this
Agreement.
(b) Terms. Each Letter of Credit shall be denominated only in
Dollars or in an Available Foreign Currency
and shall expire on or before the
first anniversary of the issuance thereof
and in any event not later than the
fifth Business Day preceding the Maturity
Date (or such later Business Day as to
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<PAGE>
which the Administrative Agent and Issuer
may agree, in their sole and absolute
discretion, provided that in all instances
Letters of Credit expiring later than
the Maturity Date shall be cash
collateralized on terms acceptable to the Issuer
and in an amount equal to 105% of the
Contingent Reimbursement Obligations). No
Letter of Credit shall have an expiration
date which is extendable under an
"evergreen" or similar provision unless the
Issuer expressly agrees to the same
in its sole discretion in any particular
case. All other extensions and renewals
are also at the sole discretion of the
Issuer. For purposes of Section 3.2
(Conditions to All Loans) only, any
extension of the expiry date of a Letter of
Credit to a date beyond the first
anniversary of the issuance thereof shall
constitute an "issuance" of such Letter of
Credit for all purposes hereof.
(c) Form of Request. The Borrower shall request the issuance of
a
Letter of Credit by furnishing to the
Administrative Agent and the Issuer, at
least five Business Days before the
requested date of such issuance (or at such
later time as shall be acceptable to the
Issuer), such notice thereof as shall
be reasonably satisfactory to the Issuer to
which shall be attached a
certificate of the chief financial officer
representing that the Borrower is
not, and after giving effect to the
additional Indebtedness will not be, in
Default hereunder.
(d) Participation by Lenders. Upon the date of issuance of a
Letter
of Credit, the Issuer shall be deemed to
have granted to each Lender (other than
the Issuer), and each Lender (other than
the Issuer) shall be deemed to have
acquired from the Issuer without further
action by any party hereto, a
participation in such Letter of Credit and
any Drawings that may at any time be
made thereunder, in a percentage equal to
such Lender's pro rata share of the RC
Commitment.
(e) Notice of Drawings. The Issuer shall promptly notify
Borrower
of its receipt of each Drawing request with
respect to a Letter of Credit,
stating the date and amount of the Drawing
requested thereby and the date and
amount of each Drawing disbursed pursuant
to such request. The failure of the
Issuer to give, or delay in giving, any
such notice shall not release or
diminish the obligations hereunder of the
Borrower in respect of such Drawing.
(f) Reimbursement of
Drawings by Borrower. If at any time Borrower
receives notice of a Drawing, the Borrower
shall reimburse such Drawing by
paying to the Issuer in immediately
available funds the amount of the payment
made by the Issuer with respect to such
Drawing, together with interest thereon
at a rate per annum equal to the Prime Rate
plus Applicable Margin for Prime
Rate Loans (if any) from the day that the
Drawing is made until the day such
reimbursement is made if such Drawing is
not reimbursed on the day the Drawing
is made. Such reimbursement shall be made
by the Borrower to the Issuer no later
than one (1) Business Day following the
Business Day that Borrower receives the
relevant notice of Drawing if such notice
is received on or prior to 10:00 a.m.
(Philadelphia, Pennsylvania time) and no
later than two (2) Business Days
following the date that Borrower receives
the relevant notice of Drawing if such
notice is received after 10:00 a.m.
(Philadelphia, Pennsylvania time). If the
Borrower shall fail to make any payment
required by this paragraph (f) at the
time specified, and if at such time, there
shall be any RC Commitment, the
Administrative Agent may (but is not
obligated to) assume that the Borrower
intends to use the proceeds of RC Loans to
make such payment, subject to the
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then Available RC Commitment. In reliance
on such assumption, the Administrative
Agent may (but is not obligated to) notify
the Lenders (and Borrower) that
notwithstanding the Borrower's failure to
provide notice pursuant to Section
1.2(a) (Notice of Borrowing), such notice
is deemed given pursuant to this
paragraph (f) requesting an RC Loan bearing
interest at the Prime Rate in an
amount sufficient to make the payments
required by this paragraph. Such notice
from the Administrative Agent shall be
treated by the Lenders in the same manner
as a notice from the Borrower under Section
1.2(a). The Administrative Agent
may, at the direction of the Issuer, apply
the proceeds of such RC Loans to
satisfy the requirements of this
paragraph.
(g) Obligations of Lenders to Issuer. In the event that the
Borrower shall fail to make any payment
when due pursuant to the preceding
paragraph (f) and for so long as such
failure shall be continuing, the Issuer
may give notice of such failure to the
Administrative Agent and each Lender,
which notice shall include, in the case of
a Lender, the amount of such Lender's
participating interest in such Drawing,
whereupon each such Lender (other than
the Issuer) shall promptly remit such
amount to the Administrative Agent for the
account of the Issuer as provided in this
paragraph (g). Each Lender (other than
the Issuer) shall, in the event it receives
such notice from the Issuer at or
before 12:00 noon (Philadelphia,
Pennsylvania time) on any Business Day, fund
its participation in any unreimbursed
Drawing by remitting to the Administrative
Agent, no later than 2:00 p.m.
(Philadelphia, Pennsylvania time) on such day, in
immediately available funds its share of
the reimbursement obligations in
respect of each Drawing. In the event that
the Administrative Agent receives
such funds from a Lender at or before 2:00
p.m. (Philadelphia, Pennsylvania
time) on any day, the Administrative Agent
shall make available the amount
thereof to the Issuer, in immediately
available funds no later than 3:00 p.m.
(Philadelphia, Pennsylvania time) on that
same day. Any amount payable by a
Lender to the Administrative Agent for the
account of the Issuer under this
paragraph (g), and any amount payable by
the Administrative Agent to the Issuer
under this paragraph (g), shall bear
interest for each day from the date due
(and including such day if paid after 2:00
p.m. (Philadelphia, Pennsylvania
time) in the case of any such payment by a
Lender to the Administrative Agent,
or 3:00 p.m. (Philadelphia, Pennsylvania
time), in the case of any such payment
by the Administrative Agent to the Issuer,
on such day) until the date it is
received by the Issuer at a rate equal to
the Federal Funds Rate until (and
including) the third Business Day after the
date due and thereafter at the Prime
Rate. Moreover, any Lender that shall have
failed to make available the required
amount shall not be entitled to vote on
such matters as Lenders or Majority
Lenders are otherwise entitled to vote on
or consent to or approve under this
Agreement and the other Loan Documents
until such amount with interest is paid
in full to the Administrative Agent by such
Lender. Each Lender shall, upon the
demand of the Issuer, reimburse the Issuer,
through the Administrative Agent to
the extent that the Issuer has not been
reimbursed by the Borrower after demand
therefor, for the reasonable costs and
expenses (including reasonable legal
fees) incurred by it (other than as a
result of its willful misconduct or gross
negligence as finally determined by a court
of competent jurisdiction) in
connection with the collection of amounts
due under, the administration of, and
the preservation and enforcement of any
rights conferred by, the Letters of
Credit or the performance of the Issuer's
obligations under this Agreement in
respect thereof on a pro rata basis
relative to such Lender's pro rata share of
the RC Commitment (as of the time such
costs and expenses are incurred). The
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Issuer shall refund through the
Administrative Agent any costs and expenses
reimbursed by such Lender that are
subsequently recovered from the Borrower in
an amount equal to such Lender's ratable
share thereof.
(h) Cash Collateral. It is intended that at all times that the
Borrower shall have any Contingent
Reimbursement Obligations or other
obligations (including obligations in
respect of fees) relating to Letters of
Credit, there shall be sufficient
availability under the RC Commitment to
reimburse the Issuer (and the Lenders) out
of proceeds of RC Loans. Accordingly,
in the event that there shall, at any time,
be insufficient availability under
the RC Commitment (after giving effect to
all outstanding RC Loans, Contingent
Reimbursement Obligations and unreimbursed
Drawings under Letters of Credit) to
do so (whether because the amount of the RC
Commitment is terminated at
maturity, upon acceleration or otherwise or
because the amount of outstanding RC
Loans, Contingent Reimbursement Obligations
and unreimbursed Drawings under
Letters of Credit exceed the amount of the
RC Commitment for any other reason),
the Borrower shall forthwith pay to the
Administrative Agent an amount
sufficient to cure such deficiency. Such
amount shall be maintained by the
Administrative Agent in an interest-bearing
cash collateral account in the name
of and for the benefit of the Issuer and
the Lenders to secure such payment
obligations of the Borrower. Upon receipt
of a notice from the Issuer that there
are unreimbursed Drawings or other amounts
due in respect of such Letters of
Credit (which notice shall set forth the
amount of such unreimbursed Drawings or
other obligations) the Administrative Agent
shall promptly disburse from the
cash collateral account the amount
specified in the notice and shall pay such
amount to the Issuer and Lenders ratably in
accordance with the respective
amounts owing to each such Person, first,
for fees and indemnities until the
same are paid in full and, second, for
unreimbursed Drawings. The Administrative
Agent and the Issuer may rely on their
records as to any amounts so owing and
shall be fully protected in doing so. Such
records shall be conclusive, absent
manifest error. At any time that the RC
Commitment again becomes available for
reimbursement of Drawings under outstanding
Letters of Credit such that (i) the
sum of the RC Commitment at that time and
the amount in the cash collateral
account exceeds (ii) the sum of all
outstanding RC Loans, the Contingent
Reimbursement Obligations and the amount of
all unreimbursed Drawings, then,
upon written request of Borrower (which
request shall (A) represent that there
exists no Default or Event of Default and
(B) specify the amount of such
excess), the Administrative Agent shall
release such excess amount to the
Borrower from the cash collateral account.
If all Secured Obligations (other
than Secured Obligations constituting
contingent obligations under
indemnification provisions which survive
indefinitely, so long as no unsatisfied
claim has been made under any such
indemnification provision) have been
indefeasibly paid in full in cash, all RC
Commitments have terminated and all
Letters of Credit have expired, promptly
following demand by Borrower, the
Administrative Agent shall release to the
Borrower all remaining funds in the
Letter of Credit cash collateral
account.
(i) Obligations Absolute. The obligation of Borrower and each
Lender to make available to the Issuer the
amounts set forth in this Section
1.14 shall be absolute, unconditional and
irrevocable under any and all
circumstances without reduction for any
set-off or counterclaim of any nature
whatsoever, and may not be terminated,
suspended or delayed for any reason
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whatsoever, shall not be subject to any
qualification or exception and shall be
made in accordance with the terms and
conditions of this Agreement under all
circumstances, including any of the
following circumstances:
(1) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or
other right which Borrower may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, the Issuer, any
Lender or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between Borrower and the beneficiary named in any
such Letter of Credit);
(3) any draft, certificate or any 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;
(4) the surrender or impairment of any security for
the performance or observance of any of the terms of any of
the Loan Documents; or
(5) the occurrence of any Default or Event of
Default.
(j)
Limitations on Liability; Protection of Issuer, Administrative
Agent and Lenders.
(1) Limitation on Liability of Lenders. Without
affecting any rights any Lenders may have under applicable
Law, Borrower agrees that none of the Lenders, the Issuer, the
Administrative Agent or their respective officers or directors
shall be liable or responsible for, and the obligations of the
Borrower to the Lenders, the Issuer and the Administrative
Agent hereunder shall not in any manner be affected by: (A)
the use that may be made of any Letter of Credit or the
proceeds thereof by the beneficiary thereof or any other
Person or any acts or omissions of such beneficiary or any
other Person; (B) the validity, sufficiency or genuineness of
documents presented in connection with any Drawing, or of any
endorsements thereon, even if such documents should, in fact,
prove to be in any or all respects, invalid, insufficient,
fraudulent or forged; or (C) any other circumstances
whatsoever in making or failing to make payment under any
Letter of Credit or any other action taken or omitted to be
taken by any Person under or in connection with any Letter of
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Credit, except that the Borrower shall have a claim against
the Issuer and the Issuer shall be liable to the Borrower, in
each case to the extent and only to the extent of any damages
suffered by the Borrower that it proves are caused by the
Issuer's willful misconduct or gross negligence as finally
determined by a court of competent jurisdiction. In
furtherance and not in limitation of the foregoing, in
determining whether to pay under any Letter of Credit, the
Issuer shall not have any obligation relative to the other
Lenders other than to determine that any documents required to
be delivered under such Letter of Credit appear to have been
delivered and that they appear to comply on their face with
the requirements of such Letter of Credit, regardless of any
notice or information to the contrary. Any action taken or
omitted to be taken by the Issuer under or in connection with
any Letter of Credit (if taken or omitted in the absence of
gross negligence or willful misconduct, as finally determined
by a court of competent jurisdiction) shall not create for the
Issuer any resulting liability to Borrower or any Lender.
(2) Indemnification and Expenses. In addition to any
other amounts payable under this Agreement, the Borrower
agrees to protect, indemnify, pay and hold the Issuer and each
Lender harmless from and against any and all claims, costs,
charges and expenses (including reasonable attorneys' fees)
which the Issuer may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of, or payment of any
drawing under, any Letter of Credit, other than as a result of
the gross negligence or willful misconduct of the Issuer
and/or such Lender as finally determined by a court of
competent jurisdiction or (B) the failure of the Issuer to
honor a drawing under any Letter of Credit as a result of any
act or omission of any present or future government or
Governmental Authority.
(3) Issuer Not Responsible. In furtherance of the
foregoing on liability, the Issuer shall not be responsible
for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any
party in connection with the issuance of Letters of Credit;
(B) the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds
thereof in whole or in part; (C) errors, omissions,
interruptions, or delays in transmissions or delivery of any
messages, by mail, cable, telecopy, telex or otherwise,
whether or not in cipher; (D) the misapplication by the
beneficiary of any Letter of Credit or the proceeds of any
drawing under such Letter of Credit; or (E) any consequence
arising from causes beyond the control of the Issuer,
including any governmental acts; except, in the case of this
paragraph (3), for damages proven to be caused by the Issuer's
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gross negligence or willful misconduct as finally determined
by a court of competent jurisdiction.
(k) Letters of Credit Denominated in an Available Foreign
Currency.
For purposes of this Agreement, the amount
of all obligations of Borrower under
this Section 1.14 that are stated in an
amount in an Available Foreign Currency
shall be the Dollar Equivalent Amount of
such amount. Without limiting the
generality of the foregoing, the Dollar
Equivalent Amount of the Contingent
Reimbursement Obligations and any
unreimbursed Drawings with respect to all
Letters of Credit denominated in an
Available Foreign Currency shall be the
amount determined by the Issuer in its the
most recent valuation of such
obligations. If, after giving effect to any
such determination, the sum of all
outstanding RC Loans plus all Contingent
Reimbursement Obligations plus any
unreimbursed Drawings exceeds the RC
Commitment, then Borrower shall repay the
RC Loans immediately in an amount equal to
such excess amount, and if there
remains an excess after the RC Loans are so
paid, the Borrower shall provide
cash collateral as provided in paragraph
(h) above. All payments by Borrower to
the Issuer under this Section 1.14 shall be
made in Dollars. Notwithstanding the
foregoing, so long as the Borrower
satisfies its obligations to repay the RC
Loans and/or provide the cash collateral as
aforesaid, the Borrower shall not be
deemed to be in default under this
Agreement solely due to currency fluctuations
on the value of outstanding Letters of
Credit even if such fluctuations may
cause the Dollar Equivalent of outstanding
Letters of Credit to exceed the
amount of the Letter of Credit
Sublimit.
(l) Rights and Obligations of Borrower and Restricted
Subsidiaries.
The rights of Borrower to request the
issuance of Letters of Credit under this
Section 1.14 shall be deemed to include the
rights of any Restricted Subsidiary
to request the issuance of Letters of
Credit, in each case subject to the same
obligations and agreements of Borrower as
are set forth in this Section 1.14.
1.15 DESIGNATION OF ADDITIONAL BORROWERS. At any time and from time
to
time, on at least ten (10) Business Days
prior written notice, Borrower may,
with the consent of the Administrative
Agent (not to be unreasonably withheld),
designate one or more Restricted
Subsidiaries that are United States Persons to
become co-borrowers hereunder subject to
the following:
(a) each newly-designated borrower (a "NEW BORROWER") shall
execute
a joinder hereto in form and substance
reasonably satisfactory to the
Administrative Agent pursuant to which (i)
such New Borrower shall agree to be a
co-borrower on a joint and several basis;
and (ii) such New Borrower shall
designate NCOG to act on its behalf for
providing all notices and accepting all
notices hereunder;
(b) all co-borrowers shall execute and deliver a new Note, in
form
and substance satisfactory to the
Administrative Agent, payable to each Lender
who exchanges its old Note hereunder;
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(c) each New Borrower shall deliver to the Administrative Agent
such authorizing resolutions, incumbency
certificates, good standing
certificates and opinions of counsel as the
Administrative Agent may reasonably
request; and
(d) the Borrower and its Restricted Subsidiaries shall take
such
action as the Administrative Agent may
reasonably request to effect the purposes
of this Section 1.15 including, without
limitation, executing such amendments to
this Agreement and the other Loan Documents
as the Administrative Agent shall
reasonably request.
Upon such designation, the term "BORROWER"
shall mean, collectively, NCOG and
each New Borrower on a joint and several
basis (unless the context otherwise
requires that such phrase shall apply only
to NCOG) and the term "NOTE" and "RC
NOTE" shall mean either a Note executed by
NCOG or by the co-borrowers, as
applicable.
ARTICLE II
YIELD PROTECTION AND BREAKAGE INDEMNITY
2.1 MANDATORY SUSPENSION AND CONVERSION OF LIBO RATE LOANS.
Each
Lender's obligations to make, continue or
convert into LIBO Rate Loans of any
Type shall be suspended, all such Lender's
outstanding Loans of such Type shall
be converted into Prime Rate Loans on the
last day of their applicable Interest
Periods (or, in the case of clause (c)
below, on the last day such Lender may
lawfully continue to maintain Loans of such
Type if earlier, or, in the case of
clause (d) below, on the day determined by
such Lender to be the last Business
Day before the effective date of the
applicable restriction), and all pending
requests for the making or continuation of
or conversion into Loans of such Type
by such Lender shall be deemed requests for
Prime Rate Loans, if:
(a) on or prior to the date required for the determination of a
LIBO Rate for any Interest Period, the
Administrative Agent determines that for
any reason appropriate information is not
available to it for purposes of
determining the LIBO Rate for such Interest
Period;
(b) on or prior to the first day of any Interest Period for a
LIBO
Rate Loan, the Majority Lenders have
informed the Administrative Agent of their
determination that the LIBO Rate as
determined by the Administrative Agent for
such Interest Period would not accurately
reflect the cost to such Lenders of
making, continuing or converting into a
LIBO Rate Loan for such Interest Period;
(c) at any time a Lender determines that any Regulatory Change
makes it unlawful or impracticable for such
Lender or its applicable Eurodollar
Lending Office to make, continue or convert
into a LIBO Rate Loan of such Type,
or to comply with its obligations hereunder
in respect thereof; or
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<PAGE>
(d) a Lender notifies the Administrative Agent of its
determination
that (i) by reason of any Regulatory
Change, such Lender or its applicable
Eurodollar Lending Office is restricted,
directly or indirectly, in the amount
that it may hold of (A) a category of
liabilities that includes deposits by
reference to which, or on the basis of
which, the interest rate applicable to
LIBO Rate Loans of such Type is directly or
indirectly determined or (B) the
category of assets that includes LIBO Rate
Loans of such Type and (ii) in
connection therewith, such Lender has
elected not to make available hereunder
LIBO Rate Loans of such Type.
If, as a result of this Section 2.1, any
Loan of any Lender that would otherwise
be made or maintained as or converted into
a LIBO Rate Loan for any Interest
Period is instead made or maintained as or
converted into a Prime Rate Loan,
then, unless the corresponding Loan of each
of the other Lenders is also to be
made or maintained as or converted into a
Prime Rate Loan, such Loan shall be
treated as being a LIBO Rate Loan of such
Type for such Interest Period for all
purposes of this Agreement (including the
timing, application and proration
among the Lenders of interest payments,
conversions and prepayments) except for
the calculation of the interest rate borne
by such Loan. The Administrative
Agent shall promptly notify Borrower and
each Lender of the existence or
occurrence of any condition or circumstance
specified in clause (a) or (b)
above, and each Lender shall promptly
notify Borrower and the Administrative
Agent of the existence, occurrence or
termination of any condition or
circumstance specified in clause (c) or (d)
above applicable to such Lender's
Loans, but the failure by the
Administrative Agent or such Lender to give any
such notice shall not affect such Lender's
rights hereunder.
2.2 REGULATORY CHANGES. If in the determination of any Lender (a)
any
Regulatory Change shall actually directly
or indirectly
(i) reduce the amount of any sum received or receivable by
such Lender with respect to any LIBO Rate
Loan or the return to be earned by
such Lender on any LIBO Rate Loan,
(ii) impose a cost on such Lender or any Affiliate of such
Lender that is attributable to the making
or maintaining of, or such Lender's
commitment to make or acquire, any LIBO
Rate Loan,
(iii) require such Lender or any Affiliate of such Lender to
make any payment on or calculated by
reference to any amount received by such
Lender in respect of its LIBO Rate Loans or
its obligations to make LIBO Rate
Loans, or
(iv) reduce, or
have the effect of reducing, the rate of
return on any capital such Lender or any
Affiliate of such Lender is required to
maintain on account of any LIBO Rate Loan
or such Lender's commitment to make
any LIBO Rate Loan
and (b) such reduction, increased cost or
payment shall not be fully compensated
for by an adjustment in the applicable
rates of interest payable under the Loan
Documents, then the Borrower shall pay to
such Lender such additional amounts as
such Lender determines will fully
compensate it for such reduction, increased
cost or payment. Such additional amounts
shall be payable, in the case of those
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applicable to prior periods, within 15
Business Days after request for such
payment by such Lender, accompanied by the
certificate described in Section 2.5
(Determinations) and, in the case of those
applicable to future periods, on the
dates specified, or determined in
accordance with a method specified, by such
Lender, provided that the Borrower shall
not be liable for any amount payable
with respect to any period more than 90
days before the date of such request or
certificate, or, if earlier the retroactive
effective date of the Regulatory
Change if such Regulatory Change occurs
during such 90-day period.
2.3 CAPITAL AND RESERVE REQUIREMENTS. If, in the determination of
any
Lender, such Lender or any Affiliate
thereof is required, under a change in
applicable Law (including Regulation D), or
a change in interpretations,
directives, requests and governmental or
regulatory guidelines (whether or not
having the force of law), in any case,
occurring after the Closing Date, to
maintain capital or deposit any reserve on
account of any Loan (except any
reserve requirement reflected in the LIBOR
Lending Rate), or any commitment to
make any Loan, or to participate in any
Letter of Credit then, upon request by
such Lender, the Borrower shall pay to such
Lender such additional amounts as
such Person determines will fully
compensate it for any actual reduction in the
rate of return on the capital that such
Lender or such Affiliate thereof is so
required to maintain. Such additional
amounts shall be payable, in the case of
those applicable to prior periods, within
15 Business Days after request by such
Lender for such payment accompanied by the
certificate described in Section 2.5
(Determinations) (provided that the
Borrower shall not be liable for any amount
payable with respect to any period more
than 90 days before the date of such
request or certificate, or, if earlier, the
retroactive effective date of such
determination if made during such 90-day
period), and, in the case of those
relating to future periods, on the dates
specified, or determined in accordance
with a method specified, by such
Lender.
2.4 BREAKAGE. The Borrower shall pay to each Lender, upon request,
such
amount as such Lender reasonably determines
is necessary to compensate it for
any actual loss, cost or expense incurred
by it as a result of (a) any payment,
prepayment or conversion of a LIBO Rate
Loan on a date other than the last day
of an Interest Period for such LIBO Rate
Loan or (b) a LIBO Rate Loan for any
reason (other than due to the action or
inaction of the Administrative Agent or
Lenders) not being made, continued or
converted, or any payment of principal
thereof or interest thereon not being made,
on the date determined therefor in
accordance with the applicable provisions
of this Agreement. At the election of
such Lender, and without limiting the
generality of the foregoing, but without
duplication, such compensation on account
of losses may include an amount equal
to the excess of (i) the interest that
would have been received from the
Borrower under this Agreement during the
remainder of the applicable Interest
Period over (ii) the interest component of
the return that such Lender
determines it could have obtained had it
placed such amount on deposit in the
interbank Dollar market for a period equal
to such remaining portion of the
Interest Period.
2.5 DETERMINATIONS. In making the determinations contemplated by
this
Article 2, each Lender shall make such
estimates, assumptions, allocations and
the like that such Person in good faith
determines to be appropriate, and such
Person's selection thereof in accordance
with this Section 2.5, and the
determinations made by such Person on the
basis thereof, shall be final, binding
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and conclusive upon the Borrower, except,
in the case of such determinations,
for manifest errors. Each Lender shall
furnish to the Borrower, at the time of
any request for compensation under Section
2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements), a
certificate outlining in reasonable detail
the computation of any amounts claimed by
it under this Article 2 and the
assumptions underlying such computations,
which shall include a statement of an
officer of such Person certifying that such
request for compensation is being
made pursuant to a policy adopted by such
Person to seek such compensation
generally from customers similar to the
Borrower and having similar provisions
in agreements with such Person.
2.6 REPLACEMENT OF LENDERS. If any Lender requests compensation
pursuant to Sections 1.12 (Taxes on
Payments), 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements), or such
Lender's obligation to make or
continue Loans as LIBO Rate Loans shall be
suspended pursuant to Section 2.1
(Mandatory Suspension and Conversion of
LIBO Rate Loans) or such Lender has
defaulted on its obligations to make or
participate in Loans pursuant to Section
1.2 (Manner of Borrowing), Borrower, upon
three (3) Business Days' notice, may
require that such Lender transfer all of
its right, title and interest under
this Agreement, such Lender's Notes, if
any, and the other Loan Documents to any
Eligible Assignee identified by Borrower
subject to
(a) the consent of the Administrative Agent (which consent
shall
not be unreasonably withheld),
(b)
satisfaction of the other conditions specified in Section 11.9
(Successors and Assigns) below,
(c) the agreement of the proposed transferee to assume all of
the
obligations of such Lender hereunder and
under the other Loan Documents for
consideration equal to the outstanding
principal amount of such Lender's Loans,
interest thereon to the date of such
transfer, and all other amounts payable
hereunder to such Lender to the date of
transfer,
(d) such transferor Lender shall have been paid on or prior to
the
date of such transfer all fees and other
amounts payable to such transferor
hereunder including those amounts payable
under said Sections 1.12 (Taxes on
Payments), 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements),
as applicable (and including any fees
accrued hereunder and any amounts that
would be payable under Section 2.4
(Breakage) as if all of such Lender's Loans
were being prepaid in full on such date) or
arrangements reasonably satisfactory
to the transferor Lender shall have been
made for such payments, and
(e) satisfaction of the condition that if the Lender being
replaced
has requested compensation pursuant to
Sections 1.12 (Taxes on Payments), 2.2
(Regulatory Changes) or 2.3 (Capital and
Reserve Requirements), the proposed
transferee's aggregate requested
compensation, if any, pursuant to Sections 1.12
(Taxes on Payments), 2.2 (Regulatory
Changes) or 2.3 (Capital and Reserve
Requirements) with respect to such replaced
Lender's Loans is lower than that of
the Lender replaced.
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Without prejudice to the survival of any
other agreement of the Borrower
hereunder, the agreements of the Borrower
contained in Sections 1.12 (Taxes on
Payments), 2.2 (Regulatory Changes), 2.3
(Capital and Reserve Requirements), 2.4
(Breakage), 11.12 (Indemnification by the
Borrower) and 11.13 (Expenses)
(without duplication of any payments made
to such Lender by the Borrower or the
proposed transferee) shall survive for the
benefit of any Lender replaced under
this Section 2.6 with respect to the time
prior to such replacement.
2.7 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the
occurrence of any event giving rise to the
operation of Sections 1.12 (Taxes on
Payments), 2.1 (Mandatory Suspension and
Conversion of LIBO Rate Loans), 2.2
(Regulatory Changes) or 2.3 (Capital and
Reserve Requirements) with respect to
such Lender, it will, if requested by the
Borrower, use reasonable efforts
(subject to overall policy considerations
of such Lender) to designate another
lending office for any Loans affected by
such event, provided that such
designation is made on such terms that such
Lender and its lending office suffer
no material economic, legal or regulatory
disadvantage, with the object of
avoiding the consequence of the event
giving rise to the operation of any such
Section. Nothing in this Section 2.7 shall
affect or postpone any of the
obligations of the Borrower or the right of
any Lender provided in Section 1.12
(Taxes on Payments), 2.1 (Mandatory
Suspension and Conversion of LIBO Rate
Loans), 2.2 (Regulatory Changes) or 2.3
(Capital and Reserve Requirements).
ARTICLE III
CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND FUNDINGS
3.1 CONDITIONS TO INITIAL LOANS. The effectiveness of this
Agreement
(other than this Article 3) and the
obligation of the Lenders to make Loans and
of the Issuer to issue and maintain Letters
of Credit on the Closing Date and
thereafter are subject to the satisfaction,
prior to or concurrently with the
Closing Date, of the following conditions
precedent in each case to the
satisfaction of the Administrative Agent,
in addition to the conditions
precedent set forth in Section 3.2 hereof
(Conditions to All Loans):
(a) Agreement; Note. The Administrative Agent shall have
received
this Agreement and RC Notes, in
substantially the form of Exhibit A hereto, each
duly executed on behalf of Borrower.
(b)
Subsidiary Guaranty. The Administrative Agent shall have
received Guaranties in substantially the
form of Exhibit G attached hereto (such
agreement, as it may be further amended,
modified or supplemented from time to
time "SUBSIDIARY GUARANTY") duly executed
and delivered on behalf of each of the
Restricted Subsidiaries.
(c) Certain Security Documents Pertaining to Personal Property.
The
Administrative Agent shall have received
the following documents (as amended,
modified or supplemented from time to time,
each a "SECURITY DOCUMENT" and
collectively the "SECURITY DOCUMENTS"),
each of which shall be in form and
substance satisfactory to the
Administrative Agent (except for the certificates
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representing the stock certificates and
other instruments pledged pursuant to
such Security Documents and the stock
powers delivered in connection therewith):
(i) Executed copies of each of the following:
(A) Third
Amended and Restated Security Agreement,
duly executed on behalf of the Borrower and
each Restricted Subsidiary, in
substantially the form of Exhibit E
attached hereto (such agreement as it may be
further amended, modified or supplemented
from time to time, the "SECURITY
AGREEMENT").
(B) Third Amended and Restated Stock Pledge
Agreement, duly executed on behalf of the
Borrower, each Restricted Subsidiary
owning Capital Stock in a U.S. Restricted
Subsidiary, and a sufficient number of
Restricted Subsidiaries as is necessary to
pledge under U.S. Law 65% of the
Voting Stock of the First Tier Foreign
Subsidiaries, in substantially the form
of Exhibit F attached hereto (such
agreement as it may be further amended,
modified or supplemented from time to time,
the "STOCK PLEDGE AGREEMENT").
(ii) Original certificates and instruments representing the
stock certificates and other instruments
pledged pursuant to such Security
Documents, accompanied by duly executed
instruments of transfer or assignments
in blank.
(iii) Evidence of the completion of all recordings and filings
of or with respect to, and of all other
actions with respect to, the above
Security Documents as may be necessary or,
in the opinion of the Administrative
Agent, desirable to create or perfect the
Liens created or purported to be
created by such Security Documents as
valid, continuing and perfected Liens in
favor of the Administrative Agent securing
the Secured Obligations, prior to all
other Liens other than Permitted Liens; and
evidence of the payment of any
necessary fee, tax or expense relating to
such recording or filing. Without
limitation of the foregoing, the
Administrative Agent shall receive financing
statements or amendments thereto, and UCC
"in-lieu" statements, deemed necessary
or desirable by Administrative Agent to
create, perfect or continue such Liens
in favor of the Administrative Agent.
(iv) Waivers of landlord's liens, warehouseman's liens and
similar rights, to the extent requested by
the Administrative Agent.
(v) Evidence that all other actions necessary or, in the
opinion of the Administrative Agent,
desirable to create, perfect or protect the
Liens created or purported to be created by
the above Security Documents have
been taken.
(vi) A recent search of UCC, federal tax, and judgment dockets
and records and other appropriate registers
(the scope of such search to be
satisfactory to Administrative Agent) shall
have revealed no filings or
recordings in effect with respect to the
Collateral purported to be covered by
the above Security Documents, except such
as are acceptable to the
Administrative Agent (it being understood
that such acceptance does not limit
the obligations of the Borrower and
Restricted Subsidiaries with respect to the
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priority of the Liens in favor of the
Lenders), and the Administrative Agent
shall have received a copy of the search
reports received as a result of the
search and of the acknowledgment copies of
the financing statements or other
instruments required to be filed or
recorded pursuant to this subsection bearing
evidence of the recording of such
statements or instruments at each of such
filing or recording places.
(d) Capitalization, Etc. The corporate, partnership or limited
liability company, as applicable, structure
and capital structure of the
Borrower and each Restricted Subsidiary
shall be reasonably satisfactory to the
Administrative Agent.
(e) Corporate Proceedings. The Administrative Agent shall have
received certificates by the Secretary or
Assistant Secretary of Borrower and
each Restricted Subsidiary dated as of the
Closing Date as to (i) true copies of
the articles of incorporation and by-laws
(or other Constituent Documents) of
each such Person in effect on such date
(which, in the case of articles of
incorporation or other Constituent
Documents filed or required to be filed with
the Secretary of State or other
Governmental Authority in its jurisdiction of
incorporation or formation, shall be
certified to be true, correct and complete
by such Secretary of State or other
Governmental Authority not more than 30 days
before the Closing Date) or certificates
from a Responsible Officer of the
Borrower and each Restricted Subsidiary
stating that the articles of
incorporation and bylaws (or other
Constituent Documents) of such Person have
not been amended or modified since
furnished to the Administrative Agent in
connection with the Existing Credit
Agreement, (ii) true copies of all
corporate, partnership or limited liability
company, as applicable, action taken
by each such Person relative to this
Agreement and the other Loan Documents and
(iii) the incumbency and signature of the
respective officer of each such Person
executing this Agreement and the other Loan
Documents, together with
satisfactory evidence of the incumbency of
such Secretary or Assistant
Secretary. The Administrative Agent shall
have received certificates from the
appropriate Secretaries of State or other
applicable Governmental Authorities
dated within an acceptable period prior to
the Closing Date showing the good
standing of the Borrower and each
Restricted Subsidiary in its state of
incorporation or formation.
(f) Insurance. The Administrative Agent shall have received
evidence satisfactory to it that the
insurance policies required by this
Agreement and the other Loan Documents have
been obtained, containing the
endorsements required hereby and
thereby.
(g) Financial Statements. The Administrative Agent shall have
received copies of the financial statements
and other information referred to in
Section 4.1 (Representations and
Warranties) hereof.
(h) Legal Opinions of Counsel. The Administrative Agent shall
have
received an opinion addressed to the
Lenders, dated the Closing Date, of Blank
Rome LLP, counsel to the Borrower and
Restricted Subsidiaries, in form and
substance satisfactory to the
Administrative Agent and its counsel (which will
be substantially the same as the opinion
issued in connection with the Existing
Credit Agreement, with appropriate
additional provisions which address the
transactions described herein and revisions
to the UCC).
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(i) Responsible Officer Certificates. The Administrative Agent
shall have received certificates from a
Responsible Officer of the Borrower and
each Restricted Subsidiary as to such
matters as the Administrative Agent may
request.
(j) Fees, Expenses, etc. All fees, interest, expenses and other
amounts required to be paid to the
Administrative Agent for itself and on behalf
of the Lenders under the Existing Credit
Agreement, this Credit Agreement, or
any other written agreement on or prior to
the Closing Date shall have been paid
or received.
(k) Management Letters. The Administrative Agent shall have
received copies of the management letters
issued by Borrower's certified public
accountants in connection with its audited
financial statements dated December
31, 2004 or a letter from such accountants
that no such management letters were
issued.
(l) No Material Adverse Effect. The Responsible Officer of
Borrower
and each Restricted Subsidiary shall
provide the Administrative Agent with a
certificate stating that since December 31,
2004, there has not occurred, or
been threatened, any event, act or
condition which could have a Material Adverse
Effect.
(m) Existing Facility. Concurrent with the initial funding
hereunder, but subject to Section 3.3
hereof the Indebtedness under the Existing
Credit Agreement shall be repaid in full
except that Letters of Credit issued
under the Existing Credit Agreement shall
be deemed to be Letters of Credit
issued under this Agreement.
(n) Due Diligence. The Administrative Agent shall have
completed,
to its satisfaction, all legal and other
due diligence with respect to the
business, assets, liabilities, operations
and condition (financial or otherwise)
of the Borrower and its Subsidiaries in
scope and determination satisfactory to
the Administrative Agent in its sole
discretion.
(o) Evidence of Senior Indebtedness Status. The Administrative
Agent shall have received evidence, in form
and substance satisfactory to the
Administrative Agent in its sole
discretion, that the Secured Obligations rank
senior in priority of payment to all
Subordinated Debt of the Borrower,
including, without limitation, the Existing
Subordinated Debt.
(p) Additional Matters. All corporate, partnership or limited
liability company, as applicable, and other
proceedings, and all documents,
instruments and other matters in connection
with the transactions contemplated
by this Agreement and the other Loan
Documents shall be reasonably satisfactory
in form and substance to the Administrative
Agent.
3.2 CONDITIONS TO ALL LOANS. The obligation of the Lenders to make
any
Loan and of the Issuer to issue any Letter
of Credit is subject to performance
by the Borrower and each Restricted
Subsidiary of its obligations to be
performed hereunder or under the other Loan
Documents on or before the date of
such Loan or Letter of Credit, satisfaction
of the conditions precedent set
forth herein and in the other Loan
Documents and to satisfaction of the
following further conditions precedent:
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(a) Notice. Appropriate notice of such Loan or request for a
Letter
of Credit, as applicable shall have been
given by the Borrower to the
Administrative Agent as provided in Article
1 hereof.
(b) Representations and Warranties. Each of the representations
and
warranties made by Borrower in Article 4
hereof shall be true and correct in all
material respects on and as of such date as
if made on and as of such date
(provided that any representation and
warranty that is qualified by materiality
or by reference to Material Adverse Effect
shall be true, correct and complete
in all respects on and as of such date as
if made on and as of such date), both
before and after giving effect to the Loans
or the issuance of the Letter of
Credit requested to be made on such date
(except to the extent the
representations expressly refer to an
earlier period).
(c) No Defaults. No Event of Default or Default shall have
occurred
and be continuing on such date or after
giving effect to the Loans requested to
be made on such date.
(d)
No Violations of Law, etc. Neither the making nor use of the
Loans nor issuance of any Letter of Credit
shall cause the Lenders to violate or
conflict with any Law.
(e) No Material Adverse Effect. There shall not have occurred,
or
be threatened, any other event, act or
condition which could reasonably be
expected to have a Material Adverse Effect
since the date of the Borrower's most
recent financial statements delivered to
the Administrative Agent.
Each request by Borrower for any Loan or for the issuance of a
Letter of Credit shall constitute a
representation and warranty by Borrower that
the conditions set forth in this Section
3.2 have been satisfied as of the date
of such request. Failure of the
Administrative Agent to receive notice from the
Borrower to the contrary before such Loan
is made shall constitute a further
representation and warranty by the Borrower
that the conditions referred to in
this Section 3.2 have been satisfied as of
the date such Loan is made.
3.3 CLOSING DATE FUNDING MATTERS. Notwithstanding anything in
this
Agreement to the contrary, each of the
parties agree that on the Closing Date
there may be certain Loans made or repaid
in a manner that is not ratable among
the Lenders in order to effect the purposes
hereof to pay off or pay down
certain Lenders under the Existing Credit
Agreement and cause the Lenders under
this Agreement to have such amounts of
outstanding Loans as are contemplated
hereby. To the extent Interest Periods for
any LIBO Rate Loans outstanding under
the Existing Credit Agreement have not
expired as of the Closing Date, and the
Lender relating to such LIBO Rate Loan is a
Lender hereunder, the parties will,
if practicable and approved by the
Administrative Agent, make arrangements for
pay off of each such LIBO Rate Loan in a
manner reasonably designed to minimize
expense to the Borrower under Section 2.4
(Breakage).
3.4 EXISTING CREDIT AGREEMENT. The Existing Credit Agreement
shall
remain in full force and effect (except as
the same may be terminated by its
terms) until the Closing Date, at which
time the Existing Credit Agreement shall
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be superseded by this Agreement, except
that all indemnities and cost
reimbursement provisions in the Existing
Credit Agreement shall survive.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and
warrants to the Lenders as follows:
(a) Corporate Status; Subsidiaries. The Borrower and each of
its
Subsidiaries is a corporation, partnership
or limited liability company, as
applicable, duly organized, validly
existing and in good standing under the laws
of its jurisdiction of incorporation or
formation. Each such Person has the
corporate, partnership or limited liability
company, as applicable, power and
authority to own its property and transact
the business in which it is engaged
or presently proposes to engage. The
Borrower and each of its Restricted
Subsidiaries is duly qualified to do
business as a foreign corporation,
partnership, or limited liability company,
as applicable, and is in good
standing (or foreign equivalent, if such
exists) in all jurisdictions in which
the ownership of its properties or the
nature of its activities or both makes
such qualification necessary or advisable
except where the failure to be so
qualified would not reasonably be expected
to have a Material Adverse Effect.
Schedule 4.1(a) hereof states as of the
Closing Date (i) the jurisdiction of
incorporation or formation of the Borrower
and each of its Subsidiaries, (ii)
the jurisdictions in which the Borrower and
each Restricted Subsidiary is
qualified to do business as a foreign
corporation, partnership, or limited
liability company, as applicable, except
where the failure to be so qualified
would not reasonably be expected to have a
Material Adverse Effect, and (iii) as
to each Subsidiary, whether it is a
Restricted Subsidiary or an Unrestricted
Subsidiary. Borrower shall, promptly upon
any change in fact set forth therein,
or upon request therefor from the
Administrative Agent, provide to the
Administrative Agent a certified copy of an
updated Schedule 4.1(a), which upon
approval by the Administrative Agent shall
be deemed annexed hereto.
(b) Corporate Power and Authorization. The Borrower and each
Restricted Subsidiary has the corporate,
partnership or limited liability
company, as applicable, power and authority
to execute, deliver, perform, and
take all actions contemplated by each Loan
Document to which it is a party, and
all such action has been duly and validly
authorized by all necessary corporate,
partnership or limited liability company,
as applicable, proceedings on its
part. Without limitation of the foregoing,
the Borrower and each Restricted
Subsidiary has the corporate, partnership
or limited liability company, as
applicable, power and authority to borrow
or to guaranty the borrowings, as
applicable, pursuant to the Loan Documents
to the fullest extent permitted
hereby and thereby from time to time, and
has taken all necessary corporate,
partnership or limited liability company,
as applicable, action to authorize
such borrowings or guaranty, as
applicable.
(c) Execution and Binding Effect. This Agreement and each other
Loan Document to which the Borrower or any
Restricted Subsidiary is a party has
been duly and validly executed and
delivered by each such Person. This
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<PAGE>
Agreement, and each other Loan Document
constitute, the legal, valid and binding
obligation of each such Person, enforceable
against each such Person in
accordance with its terms, except as the
enforceability thereof may be limited
by bankruptcy, insolvency or other similar
laws of general application affecting
the enforcement of creditors' rights or by
general principles of equity limiting
the availability of equitable remedies.
(d) Governmental Approvals and Filings. Except for filings
which
have been duly made (or are being made on
the Closing Date) pursuant to the
Security Documents, no approval, order,
consent, authorization, certificate,
license, permit or validation of, or
exemption or other action by, or filing,
recording or registration with, or notice
to, any Governmental Authority
(collectively, "Governmental Action") is or
will be necessary or advisable in
connection with the execution and delivery
of any Loan Document, consummation of
the transactions herein or therein
contemplated, performance of or compliance
with the terms and conditions hereof or
thereof or to ensure the legality,
validity, binding effect, enforceability or
admissibility in evidence hereof or
thereof, provided that Borrower may be
required to file certain of the Loan
Documents with the Securities and Exchange
Commission.
(e) Absence of Conflicts. Neither the execution and delivery of
any
Loan Document, nor consummation of the
transactions herein or therein
contemplated, nor performance of or
compliance with the terms and conditions
hereof or thereof does or will
(i) violate or conflict with any Law, or
(ii) violate, conflict with or result in a breach of any term
or condition of, or constitute a default
under, or result in (or give rise to
any right, contingent or otherwise, of any
Person to cause) any termination,
cancellation, prepayment or acceleration of
performance of, or result in the
creation or imposition of (or give rise to
any obligation, contingent or
otherwise, to create or impose) any Lien
upon any property of the Borrower or
any Restricted Subsidiary (except for any
Lien in favor of the Administrative
Agent securing the Secured Obligations)
pursuant to, or otherwise result in (or
give rise to any right, contingent or
otherwise, of any Person to cause) any
change in any right, power, privilege, duty
or obligation of the Borrower or any
Restricted Subsidiary under or in
connection with,
(A) the
articles of incorporation or by-laws (or
other Constituent Documents) of the
Borrower or any Restricted Subsidiary,
(B) any agreement or instrument creating, evidencing
or securing any Indebtedness to which the
Borrower or any Restricted Subsidiary
is a party or by which any of them or any
of their respective properties (now
owned or hereafter acquired) may be subject
or bound, excluding in the case of
violations, conflicts or the like under
this clause (B), those violations or
conflicts which are not material in nature,
or
(C) any other material agreement or instrument to
which the Borrower or any Restricted
Subsidiary is a party or any of its
properties (now owned or hereafter
acquired) may be subject or bound, excluding
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in the case of violations, conflicts or the
like under this clause (C), those
violations or conflicts which are not
material in nature.
(f) Audited Financial Statements. The Borrower has heretofore
furnished to the Administrative Agent
financial statements for Borrower and its
consolidated Subsidiaries as of December
31, 2004 for the fiscal year then
ended, in the form filed with the
Borrower's Form 10-K filing with the SEC as
examined and reported on by Ernst &
Young LLP, who delivered an unqualified
opinion in respect thereof. The financial
statements present fairly the
financial condition of the Borrower and its
consolidated Subsidiaries, as of the
end of such fiscal year, and the results of
operations and cash flows for such
consolidated group the fiscal year then
ended, all in conformity with GAAP.
(g) Interim Financial Statements. The Borrower has heretofore
furnished to the Administrative Agent
interim company prepared financial
statements for the Borrower and its
consolidated Subsidiaries, dated March 31,
2005 for the fiscal quarter then ended, in
the form filed with the Borrower's
Form 10-Q filing with the SEC. Such
financial statements present fairly the
financial condition of the Borrower and its
consolidated Subsidiaries, as of the
end of such fiscal quarter and the results
of operations and cash flows for such
consolidated group for such fiscal quarter,
all in conformity with GAAP, subject
to normal and recurring year-end audit
adjustments, except that such interim
financial statements do not contain
footnotes.
(h) Absence of Undisclosed Liabilities. Neither the Borrower
nor
any Restricted Subsidiary has any liability
or obligation of any nature whatever
(whether absolute, accrued, contingent or
otherwise, whether or not due),
forward or long-term commitments or
unrealized or anticipated losses from
unfavorable commitments, except (w) as
disclosed in the financial statements
referred to in Section 5.1 (Basic Reporting
Requirements) hereof or (x) matters
that, individually or in the aggregate,
could not reasonably be expected to have
a Material Adverse Effect.
(i) Absence of Material Adverse Changes. Since December 31,
2004,
there has been no change in the business,
operations, or condition (financial or
otherwise) of the Borrower or any
Restricted Subsidiary that could reasonably be
expected to have a Material Adverse
Effect.
(j) Accurate and Complete Disclosure. All information (taken as
a
whole) heretofore, contemporaneously or
hereafter provided (orally or in
writing) by the Borrower or any Restricted
Subsidiary to the Administrative
Agent pursuant to or in connection with any
Loan Document or any transaction
contemplated hereby or thereby (other than
projections, which will be subject to
the following paragraph) is or will be (as
the case may be) true and accurate in
all material respects on the date as of
which such information is dated (or, if
not dated, when received by the
Administrative Agent as the case may be) and
does not or will not (as the case may be)
omit to state any material fact
necessary to make such information (taken
as a whole) not misleading at such
time in light of the circumstances in which
it was provided. The Borrower has
disclosed to the Administrative Agent in
writing every fact or circumstance
which has, or which could reasonably be
expected to have, a Material Adverse
Effect.
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All projections heretofore, contemporaneously or hereafter provided
by
the Borrower or any Restricted Subsidiary
to the Administrative Agent pursuant
to or in connection with any Loan Document
or any transaction contemplated
hereby or thereby are or will be (as the
case may be) made in good faith
consistent with the Loan Documents and
based on the Borrower's reasonable
judgment as to the anticipated financial
performance and results of operations.
However, any such projections shall not
constitute a representation or warranty
that such future financial performance or
results of operations will in fact be
achieved.
(k) Solvency. On and as of the Closing Date, and after giving
effect to all Loans and other obligations
and liabilities being incurred on such
date in connection therewith, and on the
date of each subsequent Loan or other
extension of credit hereunder and after
giving effect to application of the
proceeds thereof in accordance with the
terms of the Loan Documents, the
Borrower and Restricted Subsidiaries on a
consolidated basis are and will be
Solvent.
(l) Margin Regulations. No part of the proceeds of any Loan
hereunder will be used for the purpose of
buying or carrying any "margin stock,"
as such term is used in Regulation U of the
Board of Governors of the Federal
Reserve System, as amended from time to
time, or to extend credit to others for
the purpose of buying or carrying any
"margin stock". Neither the Borrower nor
any Restricted Subsidiary is engaged in the
business of extending credit to
others for the purpose of buying or
carrying "margin stock". Neither the
Borrower nor any Restricted Subsidiary owns
any "margin stock". Neither the
making of any Loan nor any use of proceeds
of any such Loan will violate or
conflict with the provisions of Regulation
T, U or X of the Board of Governors
of the Federal Reserve System, as amended
from time to time.
(m) Partnerships, Etc. Except as set forth on Schedule 4.1(m),
as
of the Closing Date, neither the Borrower
nor any Restricted Subsidiary is a
partner (general or limited) of any
partnership, is a party to any joint
venture, or owns (beneficially or of
record) any equity or similar interest in
any non-Subsidiary Person (including but
not limited to any interest pursuant to
which the Borrower or any Restricted
Subsidiary has or may in any circumstance
have an obligation to make capital
contributions to, or be generally liable for
or on account of the liabilities, acts or
omissions of such other Person).
(n) Ownership and Control. Schedule 4.1(n) hereof states as of
the
Closing Date the authorized capitalization
of the Borrower and each Restricted
Subsidiary, the number of shares of each
class of Capital Stock issued and
outstanding of each such Person and the
number and percentage of outstanding
shares of each such class of Capital Stock
and the names of the record owners of
such shares and the direct or indirect
beneficial owners of such shares (except
that for Borrower the listing shall include
only the names of any parties
beneficially owning, individually or
through affiliates, more than 5% of
Borrower's Capital Stock and shall be as of
the date of the most recent proxy
statement filed with the SEC prior to the
Closing Date). The outstanding shares
of Capital Stock of the Borrower and each
Restricted Subsidiary have been duly
authorized and validly issued and are fully
paid and nonassessable. Except as
described in Schedule 4.1(n), as of the
Closing Date, there are no options,
warrants, calls, subscriptions, conversion
rights, exchange rights, preemptive
rights or other rights, agreements or
arrangements (contingent or otherwise)
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which may in any circumstances now or
hereafter obligate Borrower to issue any
shares of its Capital Stock or any other
securities.
(o) Litigation. All pending actions, suits, proceedings or
known
investigations as of the Closing Date which
could reasonably be expected to
result in liability not covered by
insurance in an amount equal to or greater
than $1,000,000.00 are disclosed on
Schedule 4.1(o). To the best of Borrower's
knowledge after due inquiry, there is no
pending or threatened action, suit,
proceeding or investigation by or before
any Governmental Authority against the
Borrower or any Restricted Subsidiary which
could reasonably be expected to
cause a Material Adverse Effect.
(p) Absence of Events of Default. No event has occurred and is
continuing and no condition exists which
constitutes an Event of Default or
Default.
(q) Absence of Other Conflicts. Neither the Borrower nor any
Restricted Subsidiary is in violation of or
conflict with, or is subject to any
contingent liability on account of any
violation of or conflict with:
(i) other than violations or conflicts which could not
reasonably be expected to have a Material
Adverse Effect, any Law to the best of
Borrower's knowledge, after due
inquiry,
(ii) its articles of incorporation or by-laws (or other
Constituent Documents), or
(iii) other than violations or conflicts which could not
reasonably be expected to have a Material
Adverse Effect, any agreement or
instrument or arrangement to which it is
party or by which it or any of its
properties (now owned or hereafter
acquired) may be subject or bound.
(r) Insurance. The Borrower and each Restricted Subsidiary
maintains with financially sound and
reputable insurers insurance with respect
to its properties and business and against
at least such liabilities, casualties
and contingencies and in at least such
types and amounts as is customary in the
case of corporations engaged in the same or
a similar business or having similar
properties similarly situated. Schedule
4.1(r) hereof sets forth as of the
Closing Date a list of all such insurance
currently maintained by the Borrower
and each Restricted Subsidiary, setting
forth the identity of the insurance
carrier, the type of coverage, the amount
of coverage and the deductible.
(s) Title to Property. The Borrower and each Restricted
Subsidiary
has good and marketable title in fee simple
to all real property owned or
purported to be owned by it and good title
to all other property of whatever
nature owned or purported to be owned by
it, including but not limited to all
property reflected in the most recent
audited balance sheet referred to in
Section 4.1(f) hereof (Audited Financial
Statements) or submitted pursuant to
Section 5.1(a) hereof (Annual Audited
Reports), as the case may be (except as
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sold or otherwise disposed of in the
ordinary course of business or as otherwise
permitted hereunder after the date of such
balance sheet), in each case free and
clear of all Liens, other than Permitted
Liens.
(t) Intellectual Property. The Borrower and each Restricted
Subsidiary owns, or is licensed or
otherwise has the right to use, all the
patents, trademarks, service marks, names
(trade, service, fictitious or
otherwise), copyrights, technology
(including but not limited to computer
programs and software), processes, data
bases and other rights, free from
burdensome restrictions, necessary to own
and operate its properties and to
carry on its business as presently
conducted and presently planned to be
conducted without conflict with the rights
of others, other than conflicts which
could not reasonably be expected to have a
Material Adverse Effect. Except as
described in Schedule 4.1(t), neither the
Borrower nor any Restricted Subsidiary
as of the Closing Date owns any registered
patents, trademarks or copyrights as
of the Closing Date.
(u) Taxes. All tax and information returns required to be filed
by
or on behalf of the Borrower and each
Restricted Subsidiary have been properly
prepared, executed and filed. All taxes,
assessments, fees and other
governmental charges upon the Borrower and
each Restricted Subsidiary or upon
any of their respective properties,
incomes, sales or franchises which are due
and payable have been paid other than those
not yet delinquent and payable
without premium or penalty, and except for
those being diligently contested in
good faith by appropriate proceedings, and
in each case adequate reserves and
provisions for taxes have been made on the
books of each such Person. The
reserves and provisions for taxes on the
books of the Borrower and each
Restricted Subsidiary are adequate for all
open years and for its current fiscal
period.
(v)
Employee Benefits. Except as set forth on Schedule 4.1(v),
neither the Borrower nor any Restricted
Subsidiary as of the Closing Date has a
Plan or Plans.
(w) Environmental Matters.
(i) The Borrower and its Restricted Subsidiaries, and each of
their respective Environmental Affiliates,
is and has been in full compliance
with all applicable Environmental Laws,
except for matters which, individually
or in the aggregate, could not reasonably
be expected to have a Material Adverse
Effect. There are to the Borrower's
knowledge after due inquiry no circumstances
that may prevent or interfere with such
compliance in the future.
(ii) The Borrower and its Restricted Subsidiaries, and each of
their respective Environmental Affiliates,
has all Environmental Approvals
necessary or desirable for the ownership
and operation of their respective
properties, facilities and businesses as
presently owned and operated and as
presently proposed to be owned and
operated, except for matters which,
individually or in the aggregate, could not
reasonably be expected to have a
Material Adverse Effect.
(iii) There is no Environmental Claim pending or, to the
knowledge of Borrower after due inquiry,
threatened, and there are no past or
present acts, omissions, events or
circumstances that could form the basis of
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any Environmental Claim, against the
Borrower or any of its Restricted
Subsidiaries or any of their respective
Environmental Affiliates, except for
matters which, individually or in the
aggregate, could not reasonably be
expected to have a Material Adverse
Effect.
(iv) Except as set forth in Schedule 4.1(w), no facility or
property now or previously owned, operated
or leased by the Borrower or any of
its Restricted Subsidiaries or any of their
respective Environmental Affiliates
is an Environmental Cleanup Site. Neither
the Borrower nor any of its Restricted
Subsidiaries nor any of their respective
Environmental Affiliates has directly
transported or directly arranged for the
transportation of any Environmental
Concern Materials to any Environmental
Cleanup Site. No Lien exists, and to
Borrower's knowledge no condition exists
which could result in the filing of a
Lien, against any property of the Borrower
or any of its Restricted Subsidiaries
or any of their respective Environmental
Affiliates under any Environmental Law.
(x) Business Interruptions. Within two (2) years prior to the
Closing Date, none of the business,
property or operations of the Borrower or
any Restricted Subsidiary has been
materially and adversely affected in any way
by any casualty, strike, lockout,
combination of workers, order of the United
States of America, or any state or local
government, or any political
subdivision or agency thereof, directed
against such Person. To the best of
Borrower's knowledge, there are no pending
or threatened labor disputes,
strikes, lockouts or similar occurrences or
grievances against the business
being operated by the Borrower or any
Restricted Subsidiary.
(y) Names. In the five (5) years prior to the Closing Date,
neither
the Borrower nor any Restricted Subsidiary
has conducted business under or used
any names (whether corporate or assumed)
except for its present corporate name
and those names listed in Schedule 4.1(y)
attached hereto (which list shall be
organized by each such Person's true, legal
name) and made a part hereof. The
Borrower and each Restricted Subsidiary is
the sole owner of its name and any
and all business done and all invoices
using such name or any names listed in
Schedule 4.1(y) represent sales and
business of such Person and are owned solely
by such Person.
(z) Regulation O. No director, executive officer or principal
shareholder of the Borrower or any
Restricted Subsidiary is a director,
executive officer or principal shareholder
of any Lender. For the purposes
hereof the terms "director" (when used with
reference to any Lender), "executive
officer" and "principal shareholder" have
the respective meanings assigned
thereto in Regulation O issued by the Board
of Governors of the Federal Reserve
System.
(aa) OFAC Requirements. Neither the Borrower nor any of its
Affiliates, or any Person acting on their
behalf in connection with this
Agreement, is a Prohibited Person. Neither
the Borrower nor any of its
Affiliates, or any Person acting on their
behalf in connection with this
Agreement, has engaged directly or
indirectly in any transaction that evades or
avoids, or has the purpose of evading or
avoiding, or violates the requirements
or prohibitions set forth in the Executive
Order or the PATRIOT Act. Neither the
Borrower nor any of its Affiliates (i) is a
Sanctioned Person, (ii) has more
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than 15% of its assets in Sanctioned
Countries, or (iii) derives more than 15%
of its operating income from investments
in, or transactions with Sanctioned
Persons or Sanctioned Countries. No part of
the proceeds of any Loan will be
used or have been used to fund any
operations in, finance any investments or
activities in or make any payments to, a
Sanctioned Person or a Sanctioned
Country.
(bb) Senior Indebtedness Status.
(i) The Obligations of the Borrower and each of its Restricted
Subsidiaries under this Agreement and each
of the other Loan Documents ranks and
shall continue to rank at least senior in
priority of payment to all
Subordinated Indebtedness of each such
Person.
(ii) The Obligations of the Borrower and each of its
Restricted Subsidiaries under this
Agreement and each of the other Loan
Documents constitutes "Senior Indebtedness"
under the Existing Subordinated Note
Indenture and constitutes "Senior
Indebtedness", "Senior Debt" or any equivalent
term under all instruments and documents,
now or in the future, relating to all
other Subordinated Indebtedness of such
Person.
(iii) The Obligations of the Borrower and each of its
Restricted Subsidiaries under this
Agreement and each of the other Loan
Documents constitutes "Designated Senior
Indebtedness" under the Existing
Subordinated Note Indenture and constitutes
"Designated Senior Indebtedness",
"Designated Senior Debt" or any equivalent
term under all instruments and
documents, now or in the future, relating
to all other Subordinated Indebtedness
of such Person
(iv) The Obligations of the Borrower and each of its
Restricted Subsidiaries under this
Agreement and each of the other Loan
Documents is permitted to be incurred under
the Existing Subordinated Note
Indenture.
(cc) Investment Company Act.
Neither the Borrower nor any of its Restricted Subsidiaries is
an "investment company," or a company
"controlled" by an "investment company,"
within the meaning of the Investment
Company Act of 1940, as amended.
(dd) Public Utility Holding Company Act.
Neither the Borrower nor any of its Restricted Subsidiaries is
a "holding company," or a "subsidiary
company" of a "holding company," or an
"affiliate" of a "holding company" or of a
"subsidiary company" of a "holding
company," within the meaning of the Public
Utility Holding Company Act of 1935,
as amended.
4.2 REPRESENTATIONS AND WARRANTIES ABSOLUTE. The representations
and
warranties of the Borrower set forth in
this Article 4 are unaffected by any
prior or subsequent investigation by, or
knowledge of, the Administrative Agent
or any Lender.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Obligations shall remain unpaid or any Lender
shall
have any Commitment under this Agreement,
Borrower shall comply, and shall cause
each other Person(s) specified to comply,
with the following covenants:
5.1 BASIC REPORTING REQUIREMENTS.
(a) Annual Audited Reports. As soon as practicable, and in any
event within 90 days after the close of
each fiscal year of the Borrower, the
Borrower shall furnish to the
Administrative Agent and each of the Lenders
financial statements in the form filed with
the Borrower's Form 10-K filing with
the SEC (or, at any time that the Borrower
is not required to file such
financial statements, it shall deliver
consolidated statements of income, cash
flows, and changes in shareholders equity,
with notes to each, all in reasonable
detail, setting forth in comparative form
the corresponding figures for the
preceding fiscal year) together with all
management letters, if any, issued in
connection therewith. Such financial
statements shall be accompanied by an
opinion of Ernst & Young LLP or other
independent certified public accountants
of recognized national standing selected by
the Borrower and reasonably
satisfactory to the Administrative Agent. A
copy of the opinion of such
accountants shall be delivered to the
Administrative Agent and each of the
Lenders and signed by such accountants.
Such opinion shall be free of exceptions
or qualifications not acceptable to the
Administrative Agent in its reasonable
discretion and in any event shall be free
of any exception or qualification
which is of a "going concern" or like
nature or which relates to a limited scope
of examination.
(b) Quarterly Financial Statements. As soon as practicable but
in
any event within 45 days after the end of
each quarter, the Borrower shall
furnish to the Administrative Agent and
each of the Lenders financial statements
in the form filed with Borrower's Form 10-Q
filing with the Securities and
Exchange Commission (but, if at any time
the Borrower is not a reporting entity,
it shall deliver the types of quarterly
financial statements that would be
required to be filed with Borrower's Form
10-Q filing if it were a reporting
entity).
(c) Quarterly Compliance Certificates. The Borrower shall
deliver
to the Administrative Agent and each of the
Lenders an Officer's Compliance
Certificate concurrently with the delivery
of the financial statement referred
to in paragraphs (a) and (b) above. Each
such Officer's Compliance Certificate
shall set forth the amount of loans and
other investments made pursuant to
Section 6.5(f) (Loans, Advances and
Investments).
(d) Annual Budget. As soon as practicable, and in any event
within
45 days after the start of each fiscal
year, the Borrower shall deliver to the
Administrative Agent (for delivery to the
Lenders) a consolidated annual budget,
which shall include the annual projections
of profit and loss statements, for
the succeeding fiscal year, together with a
statement of the assumptions and
estimates upon which such projections are
based in form and substance consistent
with past practice. The projections shall
be accompanied by a cover letter
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stating that such projections, estimates
and assumptions, as of the date of
preparation thereof, are reasonable, made
in good faith, consistent with the
Loan Documents, and represent the
Borrower's best judgment as to such matters.
(e) Commercial Finance Reports. Within 30 days of a request by
the
Administrative Agent, the Borrower shall
furnish to the Administrative Agent a
report of a Responsible Officer of the
Borrower setting forth information as to
(i) receivables, and (ii) payables (which
shall, at the Administrative Agent's
request, include, among other things, a
breakout of aging and payments).
(f) Certain Other Reports and Information. Promptly upon their
becoming available to the Borrower, the
Borrower shall deliver to the
Administrative Agent a copy of (i) all
regular or special reports, registration
statements and amendments to the foregoing
which the Borrower shall file with
the Securities and Exchange Commission (or
any successor thereto) or any
securities exchange, (ii) all reports,
proxy statements, financial statements
and other information distributed by the
Borrower to its shareholders,
bondholders or the financial community
generally, and (iii) all accountants'
management letters pertaining to, all other
reports submitted by accountants in
connection with any audit of, and all other
material reports from outside
accountants with respect to, the
Borrower.
(g) Further Information. The Borrower will promptly furnish to
the
Administrative Agent or any Lender such
other information pertaining to the
business of Borrower and its Subsidiaries
and in such form as the Administrative
Agent or any Lender may reasonably request
from time to time.
(h) Notice of Certain Events. Promptly upon becoming aware of
any
of the following, the Borrower shall give
the Administrative Agent notice
thereof, together with a written statement
of a Responsible Officer of the
Borrower setting forth the details thereof
and any action with respect thereto
taken or proposed to be taken by the
Borrower:
(i) Any Event of Default or Default.
(ii) Any event which could reasonably be expected to have a
Material Adverse Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental
Authority against or affecting the
Borrower or any Restricted Subsidiary,
except for matters that, individually or
in the aggregate, could not reasonably be
expected to have a Material Adverse
Effect.
(iv) Any material violation, breach or default by the Borrower
or any Restricted Subsidiary under any
agreement or instrument which could
reasonably be expected to have a Material
Adverse Effect.
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<PAGE>
(v) Any material amendment or supplement to, or extension,
renewal, refinancing, or refunding of, or
waiver by any other party thereto of
any right under or conditions of, any
agreement or instrument creating,
evidencing or securing any Indebtedness of
the Borrower or any Restricted
Subsidiary in excess of $1,000,000.00; any
agreement or instrument material to
the business, operations or condition
(financial or otherwise) of the Borrower
and Restricted Subsidiaries taken as a
whole.
(vi) Any Pension-Related Event. Such notice shall be
accompanied by: (A) a copy of any notice,
request, return, petition or other
document received by the Borrower or any
Restricted Subsidiary or any Controlled
Group Member from any such Person, or which
has been or is to be filed with or
provided to any Person (including without
limitation the Internal Revenue
Service, PBGC or any Plan participant,
beneficiary, alternate payee or employer
representative), in connection with such
Pension-Related Event, and (B) in the
case of any Pension-Related Event with
respect to a Plan, the most recent Annual
Report (5500 Series), with attachments
thereto, and the most recent actuarial
valuation report, for such Plan, if not
previously provided.
(vii) Any Environmental Claim pending or threatened against
the Borrower or any Restricted Subsidiary,
or any past or present acts,
omissions, events or circumstances
(including but not limited to any dumping,
leaching, deposition, removal, abandonment,
escape, emission, discharge or
release of any Environmental Concern
Material at, on or under any facility or
property now or previously owned, operated
or leased by the Borrower or any
Restricted Subsidiary, that could form the
basis of such Environmental Claim,
which Environmental Claim, individually or
in the aggregate, could reasonably be
expected to have a Material Adverse
Effect.
(i) Visitation; Verification. Borrower shall, and shall cause
each
Restricted Subsidiary to, permit such
Persons as the Administrative Agent or any
Lender may designate from time to time to
visit and inspect any of the
properties of the Borrower and each
Restricted Subsidiary, to examine its books
and records and take copies and extracts
therefrom and to discuss its affairs
with its directors, officers, employees and
independent accountants at such
times and as often as the Administrative
Agent may reasonably request. Borrower
hereby authorizes such officers, employees
and independent accountants to
discuss with the Administrative Agent the
affairs of the Borrower and the
Restricted Subsidiaries. The Administrative
Agent shall have the right to
examine accounts, inventory and other
properties and liabilities of the Borrower
and each Restricted Subsidiary from time to
time, and Borrower and each
Restricted Subsidiary shall cooperate with
the Administrative Agent in such
examination.
5.2 INSURANCE. The Borrower shall, and shall cause each
Restricted
Subsidiary to, maintain insurance covering
the properties (including tangible
Collateral) and business against fire,
flood, casualty and such other hazards
and risks (including the risk of business
interruption from a casualty event) as
may be reasonably acceptable to the
Administrative Agent in such amounts, with
such deductibles and with such insurers as
may be reasonably acceptable to the
Administrative Agent. In addition:
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(a) Administrative Agent as Loss Payee and Additional Insured.
All
casualty insurance policies covering
tangible Collateral shall contain standard
Lender Loss Payable Clauses issued in favor
of the Administrative Agent for the
benefit of the Secured Parties under which
all losses thereunder shall be paid
to the Administrative Agent for the benefit
of the Secured Parties as their
interests may appear. All other insurance
policies of the Borrower or any
Restricted Subsidiary shall name the
Administrative Agent as an additional
insured on behalf of the Secured Parties as
their interests may appear. Such
policies shall expressly provide that the
requisite insurance cannot be altered
or canceled without thirty (30) days prior
written notice to the Administrative
Agent and shall insure the Lenders
notwithstanding the act or neglect of the
insured.
(b) Administrative Agent's Right to Purchase Insurance. In the
event the Borrower or any Restricted
Subsidiary fails to procure or cause to be
procured any such insurance or to timely
pay or cause to be paid the premium(s)
on any such insurance, the Administrative
Agent may do so for the Borrower or
any Restricted Subsidiary but each such
Person shall continue to be liable for
the cost of such insurance.
(c) Disposition of Insurance Proceeds. The Borrower, for itself
and
each Restricted Subsidiary, hereby appoints
the Administrative Agent as its
attorney-in-fact, exercisable at the
Administrative Agent's option, to endorse
any check which may be payable to the
Borrower or any Restricted Subsidiary in
order to collect the proceeds of such
insurance. In the absence of a Default or
Event of Default, the Administrative Agent
shall turn over to the Borrower all
insurance proceeds the Administrative Agent
receives. The Borrower may use the
proceeds for the repair, reconstruction or
replacement of Collateral, toward the
replacement of lost revenues, for working
capital, or for any other proper
business purpose; provided that any
proceeds that remain unused (i) more than 12
months after the Borrower receives them or
(ii) at the time a Default or Event
of Default exists shall be applied
immediately as the Majority Lenders may in
their discretion direct, including against
the Obligations and as a permanent
reduction of the RC Commitment.
(d) Evidence of Insurance. The Borrower shall, and shall cause
each
Restricted Subsidiary to, promptly furnish
to the Administrative Agent from time
to time upon request of the Administrative
Agent the policies under which the
required insurance is issued, certificates
of insurance, lender loss payable
endorsements, and such other information
relating to such insurance as the
Administrative Agent may request, and
provide such other insurance and
endorsements as are required by this
Agreement and the other Loan Documents.
5.3 PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND PRIORITY
CLAIMS.
The Borrower shall, and shall cause each
Restricted Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties attach thereto,
all
taxes, assessments and other governmental
charges imposed upon it or any of its
properties;
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(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons
which, if unpaid, might result in the
creation of a Lien upon any such property;
and
(c)
on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the
creation of a Lien upon any such property
or which, if unpaid, might give rise to a
claim entitled to priority over
general creditors of the Borrower or any
Restricted Subsidiary in a case under
Title 11 (Bankruptcy) of the United States
Code, as amended;
provided, that unless and until
foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced any
such Person need not pay or discharge
any such tax, assessment, charge or claim
so long as (x) the validity thereof is
contested in good faith and by appropriate
proceedings diligently conducted, and
(y) such reserves or other appropriate
provisions as may be required by GAAP
shall have been made therefor.
5.4 PRESERVATION OF CORPORATE STATUS. The Borrower shall, and
shall
cause each Restricted Subsidiary to,
maintain its status as a corporation duly
organized, validly existing and in good
standing (or foreign equivalent, if such
exists) under the laws of its jurisdiction
of incorporation or formation, and,
if a failure to do so by such Person could
reasonably be expected to have a
Material Adverse Effect, to be duly
qualified to do business as a foreign
corporation, partnership, or limited
liability company, as applicable, and in
good standing in all jurisdictions in which
the ownership of its properties or
the nature of its business or both make
such qualification necessary, except
that Subsidiaries may be dissolved or
otherwise disposed of pursuant to the
terms and conditions of Sections 6.9
(Mergers, Acquisitions, Etc.) and 6.10
(Dispositions of Properties).
5.5 GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall, and
shall
cause each Restricted Subsidiary to, keep
and maintain in full force and effect
all Governmental Actions necessary or
advisable in connection with execution and
delivery of any Loan Document, consummation
of the transactions herein or
therein contemplated, performance of or
compliance with the terms and conditions
hereof or thereof or to ensure the
legality, validity, binding effect,
enforceability or admissibility in evidence
hereof or thereof.
5.6 MAINTENANCE OF PROPERTIES. Subject to Section 6.10
(Dispositions of
Properties), the Borrower shall, and shall
cause each Restricted Subsidiary to,
maintain or cause to be maintained in good
repair, working order and condition
the properties now or hereafter owned,
leased or otherwise possessed by it and
shall make or cause to be made all needful
and proper repairs, renewals,
replacements and improvements thereto so
that the business carried on in
connection therewith may be properly and
advantageously conducted at all times.
5.7 AVOIDANCE OF OTHER CONFLICTS. Neither the Borrower nor any
Restricted Subsidiary shall violate or
conflict with, be in violation of or
conflict with, or be or remain subject to
any liability (contingent or
otherwise) on account of any violation or
conflict with
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(a) any Law in a manner which could reasonably be expected to
cause
a Material Adverse Effect,
(b) its articles of incorporation or by-laws (or other
Constituent
Documents), or
(c) any agreement or instrument to which it is a party or by
which
any of them or any of their respective
properties (now owned or hereafter
acquired) may be subject or bound, with
respect to which a violation or conflict
could reasonably be expected to have a
Material Adverse Effect.
5.8 FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and shall
cause
each Subsidiary to, make and keep books,
records and accounts which, in
reasonable detail, accurately and fairly
reflect its transactions and
dispositions of its assets and maintain a
system of internal accounting controls
sufficient to provide reasonable assurances
that (a) transactions are executed
in accordance with management's general or
specific authorization, (b)
transactions are recorded as necessary (i)
to permit preparation of consolidated
financial statements of the Borrower and
its consolidated Subsidiaries in
conformity with GAAP and (ii) to maintain
accountability for assets, (c) access
to assets is permitted only in accordance
with management's general or specific
authorization and (d) the recorded
accountability for assets is compared with
the existing assets at reasonable intervals
and appropriate action is taken with
respect to any differences.
5.9 USE OF PROCEEDS. Subject to the terms and conditions of
this
Agreement (including without limitation
Section 5.16 (Subsidiaries as Guarantors
and Non-Guarantor Subsidiaries)), the
Borrower shall apply the proceeds of all
Loans hereunder only (a) to refinance
Indebtedness under the Existing Credit
Agreement and (so long as no Default or
Event of Default shall then exist) the
Existing Subordinated Debt, (b) for working
capital purposes, (c) to make loans,
advances, and investments, to the extent
permitted by this Agreement, (d) to
finance capital expenditures, and (e) to
finance Permitted Acquisitions, and for
other corporate purposes permitted by this
Agreement. The Borrower shall not use
the proceeds of any Loans hereunder
directly or indirectly for any unlawful
purpose or inconsistent with any other
provision of any Loan Document.
5.10 CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower shall,
and
shall cause each Restricted Subsidiary to,
engage only in Permitted Businesses.
5.11 CONSOLIDATED TAX RETURN. Neither the Borrower nor any
Restricted
Subsidiary shall file or consent to the
filing of any consolidated income tax
return with any Person other than the
Borrower or a consolidated Subsidiary,
except as required by the Code.
5.12 FISCAL YEAR. Neither Borrower nor any Restricted Subsidiary
shall
change its fiscal year or fiscal
quarter.
5.13 BANK ACCOUNTS. As additional consideration for the
establishment
of the credit facilities hereunder, the
Borrower shall, and shall cause each
Restricted Subsidiar
