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EXHIBIT 4.3
EXECUTION COPY
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CREDIT AGREEMENT
among
SPHERIS HOLDING II, INC.,
SPHERIS HOLDING, INC. (to be merged into SPHERIS INC.),
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
UBS SECURITIES LLC,
as Syndication Agent,
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of November 5, 2004
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J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................................
1
SECTION 1.1. Defined
Terms.............................................. 1
SECTION 1.2. Terms
Generally............................................ 26
SECTION 1.3. Pro Forma
Calculations..................................... 26
SECTION 1.4.
Classification of Loans and Borrowings.....................
27
ARTICLE II THE
CREDITS...................................................
27
SECTION 2.1.
Commitments................................................
27
SECTION 2.2.
Loans......................................................
27
SECTION 2.3. Borrowing
Procedure........................................ 29
SECTION 2.4. Evidence
of Debt; Repayment of Loans....................... 29
SECTION 2.5.
Fees.......................................................
30
SECTION 2.6. Interest
on Loans.......................................... 31
SECTION 2.7. Default
Interest........................................... 31
SECTION 2.8. Alternate
Rate of Interest................................. 31
SECTION 2.9.
Termination and Reduction of Commitments...................
32
SECTION 2.10. Conversion and Continuation of
Borrowings.................. 32
SECTION 2.11. Repayment of Term Loan
Borrowings.......................... 33
SECTION 2.12. Optional
Prepayments....................................... 34
SECTION 2.13. Mandatory
Prepayments...................................... 35
SECTION 2.14. Reserve Requirements; Change in
Circumstances.............. 36
SECTION 2.15.
Indemnity..................................................
37
SECTION 2.16. Pro Rata
Treatment......................................... 37
SECTION 2.17. Sharing of
Setoffs......................................... 37
SECTION 2.18.
Payments...................................................
38
SECTION 2.19.
Taxes......................................................
38
SECTION 2.20. Assignment of Commitments Under Certain
Circumstances;
Duty to Mitigate...........................................
39
SECTION 2.21. Swingline
Loans............................................ 40
SECTION 2.22. Letters of
Credit.......................................... 41
ARTICLE III REPRESENTATIONS AND
WARRANTIES............................... 46
SECTION 3.1.
Organization; Powers.......................................
46
SECTION 3.2.
Authorization..............................................
46
SECTION 3.3.
Enforceability.............................................
46
SECTION 3.4.
Governmental Approvals.....................................
47
SECTION 3.5. Financial
Statements....................................... 47
SECTION 3.6. No
Material Adverse Change.................................
47
SECTION 3.7. Title to
Properties; Possession Under Leases............... 47
SECTION 3.8.
Subsidiaries...............................................
48
SECTION 3.9.
Litigation; Compliance with Laws...........................
48
SECTION 3.10.
Agreements.................................................
48
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SECTION 3.11. Federal Reserve
Regulations................................ 48
SECTION 3.12. Investment Company Act; Public Utility Holding
Company
Act........................................................
48
SECTION 3.13. Use of
Proceeds............................................ 49
SECTION 3.14. Tax
Returns................................................
49
SECTION 3.15. No Material
Misstatements.................................. 49
SECTION 3.16. Employee Benefit
Plans..................................... 49
SECTION 3.17. Environmental
Matters...................................... 49
SECTION 3.18.
Insurance..................................................
50
SECTION 3.19. Security
Documents......................................... 50
SECTION 3.20. Location of Real Property and Leased
Premises.............. 50
SECTION 3.21. Labor
Matters.............................................. 50
SECTION 3.22.
Solvency...................................................
51
SECTION 3.23. Representations and Warranties in Acquisition
Documents.... 51
SECTION 3.24. Senior
Indebtedness........................................ 51
SECTION 3.25. Certain Treasury Regulation
Matters........................ 51
SECTION 3.26. Foreign Assets Control Regulations,
Etc.................... 51
ARTICLE IV CONDITIONS OF
LENDING......................................... 52
SECTION 4.1. All
Credit Events..........................................
52
SECTION 4.2. First
Credit Event......................................... 52
ARTICLE V AFFIRMATIVE
COVENANTS.......................................... 55
SECTION 5.1.
Existence; Businesses and Properties.......................
55
SECTION 5.2.
Insurance..................................................
55
SECTION 5.3.
Taxes......................................................
56
SECTION 5.4. Financial
Statements, Reports, etc......................... 57
SECTION 5.5.
Litigation and Other Notices...............................
58
SECTION 5.6.
Information Regarding Collateral...........................
58
SECTION 5.7.
Maintaining Records; Access to Properties and Inspections..
59
SECTION 5.8. Use of
Proceeds............................................ 59
SECTION 5.9. Further
Assurances......................................... 59
SECTION 5.10. Certain Treasury Regulation
Matters........................ 60
SECTION 5.11. Hedging
Agreements......................................... 60
SECTION 5.12. Environmental
Laws......................................... 60
ARTICLE VI NEGATIVE
COVENANTS............................................ 61
SECTION 6.1.
Indebtedness...............................................
61
SECTION 6.2.
Liens......................................................
63
SECTION 6.3. Sale and
Lease-Back Transactions........................... 65
SECTION 6.4.
Investments, Loans and Advances............................
66
SECTION 6.5. Mergers,
Consolidations, Sales of Assets and Acquisitions.. 68
SECTION 6.6.
Restricted Payments; Restrictive Agreements................
68
SECTION 6.7.
Transactions with Affiliates...............................
71
SECTION 6.8. Business
of Holdings, Borrower and Subsidiaries............ 71
SECTION 6.9. Other
Indebtedness; Material Agreements.................... 71
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SECTION 6.10. Capital
Expenditures....................................... 72
SECTION 6.11. Interest Coverage
Ratio.................................... 72
SECTION 6.12. Maximum Leverage
Ratio..................................... 74
SECTION 6.13. Fiscal
Year................................................ 77
SECTION 6.14. Amendments to Acquisition
Documentation.................... 77
ARTICLE VII EVENTS OF
DEFAULT............................................ 77
ARTICLE VIII THE
AGENTS..................................................
80
SECTION 8.1.
Appointment................................................
80
SECTION 8.2.
Delegation of Duties.......................................
80
SECTION 8.3.
Exculpatory Provisions.....................................
81
SECTION 8.4. Reliance
by Administrative Agent........................... 81
SECTION 8.5. Notice of
Default.......................................... 81
SECTION 8.6.
Non-Reliance on Agents and Other Lenders...................
81
SECTION 8.7.
Indemnification............................................
82
SECTION 8.8. Agent in
Its Individual Capacity........................... 82
SECTION 8.9. Successor
Administrative Agent............................. 82
SECTION 8.10. Documentation Agent and Syndication
Agent.................. 83
ARTICLE IX
MISCELLANEOUS.................................................
83
SECTION 9.1.
Notices....................................................
83
SECTION 9.2. Survival
of Agreement...................................... 83
SECTION 9.3. Binding
Effect............................................. 84
SECTION 9.4.
Successors and Assigns.....................................
84
SECTION 9.5. Expenses;
Indemnity........................................ 86
SECTION 9.6. Right of
Setoff............................................ 87
SECTION 9.7.
Applicable Law.............................................
87
SECTION 9.8. Waivers;
Amendment......................................... 88
SECTION 9.9. Interest
Rate Limitation................................... 89
SECTION 9.10. Entire
Agreement........................................... 89
SECTION 9.11. WAIVER OF JURY
TRIAL....................................... 89
SECTION 9.12.
Severability...............................................
89
SECTION 9.13.
Counterparts...............................................
90
SECTION 9.14.
Headings...................................................
90
SECTION 9.15. Jurisdiction; Consent to Service of
Process................ 90
SECTION 9.16.
Confidentiality............................................
90
SECTION 9.17. USA Patriot
Act............................................ 91
SECTION 9.18. Releases of Guarantees and
Liens........................... 91
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Schedules
Schedule 1.1(a)
Subsidiary Guarantors
Schedule 1.1(b) Asset
Sale Dispositions
Schedule 2.1 Lenders and
Commitments
Schedule 2.22(b) Closing Date Letter of Credit
iii
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Schedule 3.2
Authorizations
Schedule 3.4 Governmental
Approvals
Schedule 3.5(a)
Material Liabilities Not Reflected in Balance Sheet
Schedule 3.8 Subsidiaries
Schedule 3.9 Litigation
Schedule 3.17 Environmental
Matters
Schedule 3.18 Insurance
Schedule 3.19(a) Filing Offices
Schedule 3.19(c) Mortgage Filing Offices
Schedule 3.20(a) Owned Property
Schedule 3.20(b) Leased Property
Schedule 4.2(a) Other
Local Counsel
Schedule 6.1 Outstanding
Indebtedness on Closing Date
Schedule 6.2 Liens Existing
on Closing Date
Schedule 6.4 Existing
Investments
Schedule 6.7 Transactions with Affiliates
Exhibits
EXHIBIT A
Form of Assignment and Assumption
EXHIBIT B
Form of Borrowing Request
EXHIBIT C
Form of Guarantee and Collateral Agreement
EXHIBIT D
Form of Perfection Certificate
EXHIBIT E-1
Form
of Opinion of Willkie Farr & Gallagher LLP
EXHIBIT E-2 Form of
Opinion of Bass, Beary & Sims PLC
EXHIBIT E-3 Form of
Opinion of Potter Anderson & Corroon LLP
EXHIBIT F
Form of Mortgage
EXHIBIT G
Form of Intercreditor Agreement
iv
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CREDIT AGREEMENT (this "Agreement"), dated as of November 5,
2004,
among SPHERIS HOLDING II, INC., a Delaware corporation
("Holdings"), SPHERIS
HOLDING, INC., a Delaware corporation (the "Borrower"), the several
banks and
other financial institutions or entities from time to time parties
to this
Agreement (the "Lenders"), UBS SECURITIES LLC, as syndication agent
(in such
capacity, the "Syndication Agent"), and JPMORGAN CHASE BANK, as
administrative
agent.
WITNESSETH:
WHEREAS, the Borrower will acquire all the capital stock of
Spheris
Inc., a Delaware corporation (the "Company"), pursuant to the
Securities
Purchase Agreement, dated as of October 12, 2004 (the "Acquisition
Agreement"),
between Spheris Holdings LLC (the "Seller") and the Borrower;
WHEREAS, on the Closing Date, the Borrower will be merged with
and
into the Company, with the Company continuing as the surviving
corporation in
such merger (the "Merger"); and
WHEREAS, upon the effectiveness of the Merger, the Company will
succeed to all rights and obligations of the Borrower by operation
of law and
all references herein and in the other Loan Documents to the term
"Borrower"
shall thereupon be deemed to be references to the Company;
NOW, THEREFORE, in consideration of the premises and to induce
the
Administrative Agent and the Lenders to enter into this Agreement
and to induce
the Lenders to make their respective extensions of credit to the
Borrower
hereunder, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
Section 1.1. Defined Terms. As used in this Agreement, the
following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such Borrowing, are bearing
interest at a
rate determined by reference to the Alternate Base Rate.
"Acquired CapEx Amount" shall have the meaning assigned to such
term in
Section 6.10(a).
"Acquired Entity" shall have the meaning assigned to such term in
Section
6.4(g).
"Acquisition" shall mean the acquisition by the Borrower of all
the
outstanding capital stock of the Company and its subsidiaries
pursuant to the
Acquisition Agreement.
"Acquisition Agreement" shall have the meaning assigned to such
term in the
recitals, as such agreement may be amended, supplemented or
otherwise modified
from time to time in accordance with Section 6.14.
"Acquisition Documentation" shall mean, collectively, the
Acquisition
Agreement and all schedules, exhibits and annexes thereto and all
side letters
and agreements affecting the terms thereof or entered into in
connection
therewith.
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2
"Administrative Agent" shall mean JPMorgan Chase Bank, together
with its
affiliates, as the arranger of the Commitments and as the
administrative agent
for the Lenders under this Agreement and the other Loan Documents,
together with
any of its successors.
"Administrative Agent Fees" shall have the meaning assigned to such
term in
Section 2.5(b).
"Affiliate" shall mean, when used with respect to a specified
person,
another person that directly, or indirectly through one or more
intermediaries,
Controls or is Controlled by or is under common Control with the
person
specified.
"Agents" shall mean the collective reference to the Syndication
Agent, the
Documentation Agent and the Administrative Agent.
"Aggregate Exposure Percentage" shall mean for any Lender the
percentage
equivalent of a fraction, the numerator of which is the Aggregate
Total Exposure
of such Lender and the denominator of which is the Aggregate Total
Exposure.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of
the Lenders' Revolving Credit Exposures.
"Aggregate Total Exposure" shall mean the Aggregate Revolving
Credit
Exposure and the outstanding Term Loans.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the
greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" shall mean
the rate of interest per annum publicly announced from time to time
by JPMorgan
Chase Bank as its prime rate in effect at its principal office in
New York City
(the Prime Rate not being intended to be the lowest rate of
interest charged by
JPMorgan Chase Bank in connection with extensions of credit to
debtors). Any
change in the ABR due to a change in the Prime Rate or the Federal
Funds
Effective Rate shall be effective as of the opening of business on
the effective
day of such change in the Prime Rate or the Federal Funds Effective
Rate,
respectively.
"Applicable Percentage" shall mean, for any day, with respect to
any
Eurodollar Loan or ABR Loan, as the case may be, the applicable
percentage set
forth below under the caption "Eurodollar Spread-Term Loans", "ABR
Spread-Term
Loans", "Eurodollar Spread-Revolving Loans and Swingline Loans" or
"ABR
Spread-Revolving Loans and Swingline Loans", as the case may
be:
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EURODOLLAR SPREAD- ABR
SPREAD-
EURODOLLAR SPREAD- ABR SPREAD- REVOLVING LOANS AND
REVOLVING LOANS
AND
TERM LOANS
TERM LOANS SWINGLINE LOANS
SWINGLINE LOANS
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3.25%
2.25%
3.00%
2.00%
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; provided, that on and after the first Adjustment Date (as defined
in the
definition of "Pricing Grid") occurring after December 31, 2004,
the Applicable
Percentage with respect to Revolving Loans and Swingline Loans will
be
determined pursuant to the Pricing Grid. The Applicable Margin for
the
Incremental Term Loan Facility shall be as specified in the
Incremental Term
Loan Assumption Agreement. The Applicable Percentage may be
increased from time
to time by .25% per annum as provided for in Section 2.6(c).
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3
"Approved Fund" shall have the meaning assigned to such term in
Section
9.4.
"Asset Sale" shall mean the sale, transfer or other disposition (by
way of
merger, casualty, condemnation or otherwise but excluding
investments permitted
by Section 6.4) by Holdings, the Borrower or any of the
Subsidiaries to any
person other than the Borrower or any Subsidiary Guarantor of (a)
any Equity
Interests of any of the Subsidiaries (other than directors'
qualifying shares or
the sale by any person of Equity Interests of such person) or (b)
any other
assets of Holdings, the Borrower or any of the Subsidiaries (other
than (i)
inventory, damaged, obsolete or worn out assets, scrap and
Permitted
Investments, in each case disposed of in the ordinary course of
business, (ii)
dispositions between or among the Borrower and Domestic
Subsidiaries, (iii)
dispositions listed on Schedule 1.1(b) hereto; (iv) dispositions
between or
among Foreign Subsidiaries, (v) dispositions of assets from the
Borrower or a
Domestic Subsidiary to a Foreign Subsidiary if the disposition were
treated as
an Investment in the Foreign Subsidiary and would be permitted by
Section 6.4
and (vi) licenses of Intellectual Property in the ordinary course
of business),
provided, that any asset sale or series of related asset sales
described in
clause (b) above having a value not in excess of $1,000,000 shall
be deemed not
to be an "Asset Sale" for purposes of this Agreement.
"Assignee" shall have
the meaning assigned to such term in Section 9.4(b).
"Assignment and Assumption" shall mean an Assignment and
Assumption,
substantially in the form of Exhibit A or such other form as may be
approved by
the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve
System of
the United States of America.
"Borrower" shall have the meaning assigned to such term in the
preamble
hereto.
"Borrowing" shall mean (a) Loans of the same Class and Type made,
converted
or continued on the same date and, in the case of Eurodollar Loans,
as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" shall mean a request by the Borrower in
accordance with
the terms of Section 2.3 and substantially in the form of Exhibit
B, or such
other form as shall be approved by the Administrative Agent.
"Breakage Event" shall have the meaning assigned to such term in
Section
2.15.
"Business Day" shall mean any day other than a Saturday, Sunday or
day on
which banks in New York City are authorized or required by law to
close;
provided, however, that when used in connection with a Eurodollar
Loan, the term
"Business Day" shall also exclude any day on which banks are not
open for
dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any period, (a) the
additions to
property, plant and equipment and other capital expenditures of the
Borrower and
its consolidated Subsidiaries that are (or should be) set forth in
a
consolidated statement of cash flows of the Borrower for such
period prepared in
accordance with GAAP and (b) Capital Lease Obligations or Synthetic
Lease
Obligations incurred by the Borrower and its consolidated
Subsidiaries during
such period, but excluding in each case (i) any such expenditure
made to
restore, replace or rebuild property to the condition of such
property
immediately prior to any damage, loss, destruction or condemnation
of such
property, to the extent such expenditure is made with insurance
proceeds,
condemnation awards or damage recovery proceeds relating to any
such damage,
loss, destruction or condemnation, (ii) any such expenditure made
as the
purchase price of any
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4
Permitted Acquisition or the HealthScribe Acquisition, (iii)
capital
expenditures relating to the construction or acquisition of any
property that
has been transferred to a Person (other than Holdings or any
Subsidiary)
pursuant to a sale-leaseback transaction permitted under Section
6.3, (iv)
interest capitalized during such period, (v) the purchase price of
equipment
that is purchased during such period to the extent the
consideration therefor
consists of any combination of (x) used or surplus equipment traded
in at the
time of such purchase and (y) the proceeds of a concurrent sale of
used or
surplus equipment, in each case, in the ordinary course of
business, (vi) the
purchase price of equipment that is purchased substantially
contemporaneously
with the trade-in of existing equipment to the extent that the
gross amount of
the such price is reduced by the credit granted by the seller of
such equipment
for the equipment being traded at such time or (vii) any capital
expenditures
made with Net Cash Proceeds received from an Asset Sale.
"Capital Lease Obligations" of any person shall mean the
obligations of
such person to pay rent or other amounts under any lease of (or
other
arrangement conveying the right to use) real or personal property,
or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such person
under GAAP,
and the amount of such obligations shall be the capitalized amount
thereof
determined in accordance with GAAP.
"Cash Management Obligations" shall mean obligations owed by
Holdings, the
Borrower or any of its Subsidiaries to any Lender or any Affiliate
of a Lender
in respect of any overdraft and related liabilities arising from
treasury,
depository and cash management services or any automated clearing
house
transfers of funds.
"Change in Control" shall mean any of the following events:
(a)
prior to the initial Public Equity Offering, the Permitted
Investors
shall fail to beneficially own, directly or indirectly, Equity
Interests in
Holdings representing more than 50% of the aggregate ordinary
voting power
represented by the issued and outstanding Equity Interests of
Holdings;
(b) after the initial
Public Equity Offering, any "person" or "group"
(within the meaning of the Securities Exchange Act of 1934 and the
rules of the
SEC thereunder as in effect on the date hereof) other than the
Permitted
Investors becomes, directly or indirectly, the beneficial owner of
Equity
Interests in Holdings representing more than 35% of the aggregate
ordinary
voting power represented by the issued and outstanding Equity
Interests of
Holdings and the percentage of aggregate voting power owned by such
"person" or
"group" exceeds the percentage of ordinary voting power owned by
the Permitted
Investors;
(c)
at any time, occupation of a majority of the seats (other than
vacant
seats) on the board of directors of Holdings or the Borrower by
persons who were
neither (i) nominated by the board of directors of Holdings or the
Borrower, as
the case may be, nor (ii) appointed by directors so nominated;
(d)
the occurrence of any change in control or similar event
(however
denominated) with respect to Holdings or the Borrower under and as
defined in
any indenture or agreement in respect of Material Indebtedness to
which
Holdings, the Borrower or a Subsidiary is a party; or
(e)
at any time, Holdings shall cease to directly own, beneficially and
of
record, 100% of the issued and outstanding Equity Interests of the
Borrower.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation
after the date of this Agreement, (b) any change in any law, rule
or regulation
or in the interpretation or application thereof by any Governmental
Authority
after the date of this Agreement or (c) compliance by any Lender or
the
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5
Issuing Bank (or, for purposes of Section 2.14, by any lending
office of such
Lender or by such Lender's or Issuing Bank's holding company, if
any) with any
request, guideline or directive (whether or not having the force of
law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Charges" shall have the meaning assigned to such term in Section
9.9.
"Class", when used in reference to any Loan or Borrowing, refers to
whether
such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Term
Loans, Other Term Loans or Swingline Loans and, when used in
reference to any
Commitment, refers to whether such Commitment is a Revolving Credit
Commitment,
a Term Loan Commitment, an Incremental Term Loan Commitment or a
Swingline
Commitment.
"Closing Date" shall mean November 5, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security
Document, and shall include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such
Lender's
Revolving Credit Commitment and Term Loan Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section
2.5(a).
"Company" shall have the meaning assigned to such term in the
recitals.
"Conduit Lender" shall mean any special purpose corporation
organized and
administered by any Lender for the purpose of making Loans
otherwise required to
be made by such Lender and designated by such Lender in a written
instrument;
provided, that the designation by any Lender of a Conduit Lender
shall not
relieve the designating Lender of any of its obligations to fund a
Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund
any such
Loan, and the designating Lender (and not the Conduit Lender) shall
have the
sole right and responsibility to deliver all consents and waivers
required or
requested under this Agreement with respect to its Conduit Lender,
and provided,
further, that no Conduit Lender shall (a) be entitled to receive
any greater
amount pursuant to Section 2.14, 2.15, 2.19 or 9.5 than the
designating Lender
would have been entitled to receive in respect of the extensions of
credit made
by such Conduit Lender or (b) be deemed to have any Commitment.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income
for such period plus (a) without duplication and to the extent
deducted in
determining such Consolidated Net Income, the sum of (i)
Consolidated Interest
Expense for such period, (ii) all income tax expense (including,
without
limitation, income tax expense of consolidated Foreign
Subsidiaries) and foreign
withholding tax expense for such period, (iii) all amounts
attributable to
depreciation and amortization for such period, (iv) any
non-recurring fees, cash
charges and other cash expenses made or incurred in connection with
the
Transactions that are paid or otherwise accounted for within 180
days of the
consummation of the Transactions, (v) any extraordinary losses,
(vi) (A)
facilities relocation or closing costs, (B) non-recurring
restructuring costs
and (C) integration costs and fees, including cash severance costs,
in
connection with Permitted Acquisitions and the HealthScribe
Acquisition, in each
case incurred during such period and payable in cash, in an
aggregate amount
under this clause (vi) not to exceed $5,000,000, (vii) amortization
and
impairment charges resulting from purchase accounting adjustments
(including
inventory step-up adjustments recognized in costs of sales and
write-offs of
in-process research and development costs), (viii) any non-cash
compensation
charges and deferred compensation charges, including arising
from
<PAGE>
6
stock options, taken during such period, and (ix) any other
non-cash charges
(other than the write-down of current assets), impairments and
expenses for such
period (including amortization of loan acquisition costs and
unrealized gains
and losses on Hedging Agreements and gains and losses on foreign
exchange
(including in respect of intercompany notes)) minus (b) without
duplication (i)
all cash payments made during such period on account of non-cash
charges added
to Consolidated Net Income pursuant to clauses (a)(viii) or (ix)
above in such
period or in a previous period and (ii) to the extent included in
determining
such Consolidated Net Income, any extraordinary gains and all
non-cash items of
income (other than normal accruals in the ordinary course of
business) for such
period, all determined on a consolidated basis in accordance with
GAAP.
Notwithstanding the foregoing, (x) prior to the HealthScribe
Acquisition Date,
Consolidated EBITDA for (i) the second quarter of fiscal 2004 shall
be deemed to
be $5,600,000, (ii) for the third quarter of fiscal year 2004 shall
be deemed to
be $6,400,000 and (iii) for the fourth quarter of fiscal year 2004,
for the
period between October 1, 2004 and October 31, 2004 shall be deemed
to be
$1,800,000 and for the period between November 1, 2004 and December
31, 2004
shall be the actual EBITDA and (y) from and after the HealthScribe
Acquisition
Date, Consolidated EBITDA for (i) the second quarter of fiscal 2004
shall be
deemed to be $8,600,000, (ii) for the third quarter of fiscal year
2004 shall be
deemed to be $9,500,000 and (iii) for the fourth quarter of fiscal
year 2004,
for the period between October 1, 2004 and October 31, 2004 shall
be deemed to
be $3,400,000 and for the period between November 1, 2004 and
December 31, 2004
shall be the actual EBITDA.
"Consolidated Interest Expense" shall mean, for any period, the sum
of (a)
the interest expense (including imputed interest expense in respect
of Capital
Lease Obligations and Synthetic Lease Obligations), net of cash
interest income
of the Borrower and its Subsidiaries for such period, determined on
a
consolidated basis in accordance with GAAP, plus (b) any interest
accrued during
such period in respect of Indebtedness of the Borrower or any
Subsidiary that is
required to be capitalized rather than included in consolidated
interest expense
for such period in accordance with GAAP. For purposes of the
foregoing, interest
expense shall be determined (a) by excluding non-cash interest
expense and
amortization of deferred financing costs and original issue
discount and (b)
after giving effect to any net payments made or received by the
Borrower or any
Subsidiary with respect to interest rate Hedging Agreements.
"Consolidated Net Income" shall mean, for any period, the net
income or
loss of the Borrower and its Subsidiaries for such period
determined on a
consolidated basis in accordance with GAAP (adjusted to reflect any
charge, tax
or expense incurred or accrued by Holdings during such period as
though such
charge, tax or expense had been incurred by the Borrower, to the
extent that the
Borrower has made or would be entitled under the Loan Documents to
make any
payment to or for the account of Holdings in respect thereof);
provided, that
there shall be excluded (a) the income of any Subsidiary to the
extent that the
declaration or payment of dividends or similar distributions by the
Subsidiary
of that income is not at the time permitted by operation of the
terms of its
charter or any agreement, instrument, judgment, decree, statute,
rule or
governmental regulation applicable to such Subsidiary, (b) the
income or loss of
any person accrued prior to the date it becomes a Subsidiary or is
merged into
or consolidated with the Borrower or any Subsidiary or the date
that such
person's assets are acquired by the Borrower or any Subsidiary, (c)
the income
of any person in which any other person (other than the Borrower or
a wholly
owned Subsidiary or any director holding qualifying shares in
accordance with
applicable law) has a joint interest, except to the extent of the
amount of
dividends or other distributions actually paid to the Borrower or a
wholly owned
Subsidiary by such person during such period, (d) any gains or
losses
attributable to sales of assets out of the ordinary course of
business in excess
of $500,000 and (e) gains and losses, realized or unrealized,
relating to
fluctuations in currency values. Notwithstanding anything set forth
in clause
(a) above to the contrary, a Foreign Subsidiary may agree to
restrict its
ability to declare dividends or similar distributions without
excluding the net
income of such Foreign Subsidiary from Consolidated Net Income so
long as (a)
the agreement that restricts such ability relates to Indebtedness
of such
Foreign Subsidiary described in Section 6.1(h) or Section 6.1(o),
(b) the
proceeds
<PAGE>
7
thereof are used, directly or indirectly through intercompany
transfers, to
prepay the Loans and (c) the net income of such Foreign Subsidiary,
together
with the net income of each other Foreign Subsidiary subject to a
similar
restriction, does not exceed 10% of Consolidated Net Income.
"Control" shall mean the possession, directly or indirectly, of the
power
to direct or cause the direction of the management or policies of a
person,
whether through the ownership of voting securities, by contract or
otherwise,
and the terms "Controlling" and "Controlled" shall have meanings
correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.1.
"Cumulative Excess Cash Flow" shall mean the sum of Excess Cash
Flow (but
not less than zero in any period) for the period commencing on the
Closing Date
and ending on December 31, 2004 and Excess Cash Flow for each
succeeding fiscal
year commencing with the fiscal year ended December 31, 2005 and
ending on the
Borrower's most recently ended fiscal year.
"Cure Amount" shall have the meaning assigned to such term in
Article VII.
"Cure Right" shall have the meaning assigned to such term in
Article VII.
"Current Assets" shall mean, at any time, the consolidated current
assets
(other than cash, deferred income taxes and Permitted Investments)
of the
Borrower and the Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated
current
liabilities of the Borrower and the Subsidiaries at such time, but
excluding,
without duplication, (a) the current portion of any long-term
Indebtedness and
(b) outstanding Revolving Loans and Swingline Loans.
"Default" shall mean any event or condition which upon notice,
lapse of
time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender that (a) has failed to
fund any
portion of the Term Loans, Revolving Loans, participations in L/C
Exposure or
participations in Swing Line Loans required to be funded by it
hereunder within
one (1) Business Day of the date required to be funded by it
hereunder, unless
the subject of a good faith dispute, (b) has otherwise failed to
pay over to the
Administrative Agent or any other Lender any other amount required
to be paid by
it hereunder within one (1) Business Day of the date when due,
unless the
subject of a good faith dispute, or (c) has been deemed insolvent
or become the
subject of a bankruptcy or insolvency proceeding.
"De
Minimis Holders" shall mean, with respect to any wholly owned
Subsidiary holders of directors' qualifying shares and other de
minimis
ownership interests required to be owned under foreign law by local
residents.
"Determination Date" shall mean each date that is three Business
Days after
any Calculation Date.
"Documentation Agent" shall have the meaning assigned to such term
in the
preamble hereto.
"Dollars" and "$" shall mean dollars in lawful currency of the
United
States.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated
or
organized under the laws of the United States of America, any State
thereof or
the District of Columbia. If a Foreign Subsidiary
<PAGE>
8
becomes a Guarantor and complies with the provisions of Section 5.9
as to
collateral, the Borrower may elect by written notice to the
Administrative Agent
to treat such Subsidiary as a Domestic Subsidiary for purposes of
the Loan
Documents; provided, that the Administrative Agent concludes, in
its reasonable
discretion, that the Lenders would have substantially the same
rights against
such Subsidiary pursuant to the Security Documents under the law of
the relevant
foreign jurisdiction as the Lenders would have if such Subsidiary
were organized
in the United States of America.
"Environmental Laws" shall mean all former, current and future
Federal,
state, local and foreign laws (including common law), treaties,
regulations,
rules, ordinances, codes, decrees, judgments, directives having the
force of law
and orders (including consent orders), in each case, relating to
protection of
the environment, natural resources, human health and safety or the
presence,
Release of, or exposure to, Hazardous Materials, or the generation,
manufacture,
processing, distribution, use, treatment, storage, transport,
recycling or
handling of, or the arrangement for such activities with respect
to, Hazardous
Materials.
"Environmental Liability" shall mean all liabilities, obligations,
damages,
losses, claims, actions, suits, judgments, orders, fines,
penalties, fees,
expenses and costs (including administrative oversight costs,
natural resource
damages and remediation costs), whether contingent or otherwise,
arising out of
or relating to (a) compliance or non-compliance with any
Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment
or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the
Release of any Hazardous Materials or (e) any contract, agreement
or other
consensual arrangement pursuant to which liability is assumed or
imposed with
respect to any of the foregoing.
"Environmental Permits" shall mean any and all permits,
licenses,
approvals, registrations, notifications, exemptions and any other
authorization
pursuant to any Environmental Law.
"Equity Interests" shall mean shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity interests in any person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the Borrower, is treated as a
single employer
under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302
of ERISA and Section 412 of the Code, is treated as a single
employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section
4043 of ERISA or the regulations issued thereunder, with respect to
a Plan
(other than an event for which the 30-day notice period is waived);
(b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d)
of ERISA of an application for a waiver of the minimum funding
standard with
respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA
Affiliates of any liability under Title IV of ERISA with respect to
the
termination of any Plan or the withdrawal or partial withdrawal of
the Borrower
or any of its ERISA Affiliates from any Plan or Multiemployer Plan;
(e) the
receipt by the Borrower or any of its ERISA Affiliates from the
PBGC or a plan
administrator of any notice relating to the intention to terminate
any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the
adoption of any
amendment to a Plan that would require the provision of security
pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA; (g) the
receipt by the
Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any
Multiemployer Plan
<PAGE>
9
from the Borrower or any of its ERISA Affiliates of any notice,
concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within
the meaning of
Title IV of ERISA; (h) the occurrence of a non-exempt "prohibited
transaction"
with respect to which Holdings, the Borrower, any of the
Subsidiaries or any
ERISA Affiliate is a "disqualified person" (within the meaning of
Section 4975
of the Code) or with respect to which Holdings, the Borrower or any
such
Subsidiary or ERISA Affiliate could otherwise be liable; or (i) any
other event
or condition with respect to a Plan or Multiemployer Plan that
could result in
material liability of the Borrower or any ERISA Affiliate.
"Eurocurrency Reserve Requirements" shall mean, for any day as
applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum
rates
(expressed as a decimal fraction) of reserve requirements in effect
on such day
(including basic, supplemental, marginal and emergency reserves)
under any
regulations of the Board or other Governmental Authority having
jurisdiction
with respect thereto dealing with reserve requirements prescribed
for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in
Regulation D of the Board) maintained by a member bank of the
Federal Reserve
System. "Eurodollar", when used in reference to any Loan or
Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest
at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Base Rate" shall mean with respect to each day during
each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined
on the basis of the rate for deposits in the relevant currency for
a period
equal to such Interest Period commencing on the first day of such
Interest
Period appearing on the relevant page of the Telerate screen as of
11:00 A.M.,
New York City Time, two Business Days prior to the beginning of
such Interest
Period. In the event that such rate does not appear on the Telerate
screen, the
"Eurodollar Base Rate" shall be determined by reference to such
other comparable
publicly available service for displaying Eurodollar rates as may
be selected by
the Administrative Agent or, in the absence of such availability,
by reference
to the rate at which the Administrative Agent is offered deposits
in the
relevant currency at or about 11:00 A.M., New York City Time, two
Business Days
prior to the beginning of such Interest Period in the interbank
Eurodollar
market where its relevant Eurodollar and foreign currency and
exchange
operations are then being conducted for delivery on the first day
of such
Interest Period for the number of days comprised therein.
"Eurodollar Rate" shall mean, with respect to each day during each
Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day
in accordance with the following formula (rounded upward to the
nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default" shall have the meaning assigned to such term in
Article
VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower,
the
excess of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such
fiscal year and (ii) reductions to noncash working capital of the
Borrower and
the Subsidiaries for such fiscal year (i.e., the decrease, if any,
in Current
Assets minus Current Liabilities from the beginning to the end of
such fiscal
year) over (b) the sum, without duplication, of (i) the amount of
any Tax
Payments in cash by the Borrower and the Subsidiaries with respect
to such
fiscal year, (ii) Consolidated Interest Expense for such fiscal
year payable in
cash, (iii) Capital Expenditures made in cash in accordance with
Section 6.10
and cash expenditures in connection with Permitted Acquisitions and
the
HealthScribe Acquisition during such
<PAGE>
10
fiscal year, in each case except to the extent financed with the
proceeds of
Indebtedness, equity issuances or other proceeds that would not be
included in
Consolidated EBITDA for such fiscal year, (iv) permanent repayments
of
Indebtedness (other than mandatory prepayments of Loans under
Section 2.13),
including the principal component of Capitalized Lease Obligations
and Synthetic
Lease Obligations, made by the Borrower and the Subsidiaries during
such fiscal
year, but only to the extent that such prepayments by their terms
cannot be
reborrowed or redrawn and do not occur in connection with a
refinancing of all
or any portion of such Indebtedness, (v) additions to noncash
working capital
for such fiscal year (i.e., the increase, if any, in Current Assets
minus
Current Liabilities from the beginning to the end of such fiscal
year), (vi)
proceeds received by the Loan Parties during such fiscal year from
insurance
claims with respect to casualty events, business interruption or
product recalls
which reimburse prior business expenses, (vii) management fees for
such fiscal
year permitted to be paid under Section 6.6(a)(iii), (viii) cash
indemnity
payments received during such fiscal year pursuant to
indemnification provisions
in any agreement in connection with the Acquisition, the Merger,
any Permitted
Acquisition, the HealthScribe Acquisition or any other Investment
permitted
hereunder (or in any similar agreement related to any other
acquisition
consummated prior to the Closing Date), (ix) Restricted Payments
made in such
fiscal year to the extent such Restricted Payments are permitted
under Sections
6.6(a)(ii) and 6.6(a)(iv), (x) letter of credit fees paid in such
fiscal year,
(xi) all extraordinary cash charges for such fiscal year, (xii)
cash payments
made in satisfaction of current liabilities during such fiscal
year, (xiii) to
the extent included in determining Consolidated EBITDA,
non-recurring cash
charges for such fiscal year, (xiv) to the extent added to
Consolidated Net
Income in determining Consolidated EBITDA, losses from discontinued
operations
for such fiscal year, (xv) cash expenditures made in respect of
Hedging
Agreements during such fiscal year to the extent not reflected in
the
computation of Consolidated EBITDA, (xvi) to the extent not
deducted from
Consolidated Net Income in determining Consolidated EBITDA, cash
payments for
employment benefits made during such fiscal year and (xvii) to the
extent not
deducted from Consolidated Net Income in determining Consolidated
EBITDA, cash
payments for reserves deemed appropriate by the Borrower for
environmental
liabilities during such fiscal year. For purposes of computation of
Excess Cash
Flow, Consolidated EBITDA shall be computed by excluding (A) items
(iv), (v) and
(vi) of clause (a) of the definition of Consolidated EBITDA to the
extent such
items are paid in cash during such fiscal year, (B) without
duplication of
clause (b)(xvii) above and to the extent added to Consolidated Net
Income in
determining Consolidated EBITDA, reserves deemed appropriate by the
Borrower for
environmental liabilities for such fiscal year, (C) without
duplication of
clause (b)(xvi) above and to the extent added to Consolidated Net
Income in
determining Consolidated EBITDA, employment benefits for such
fiscal year and
(D) to the extent added to Consolidated Net Income in determining
Consolidated
EBITDA, working capital changes resulting from purchase accounting
for such
fiscal year.
"Excluded Equity Issuances" shall mean (i) the issuance of Equity
Interests
by Holdings to the Sponsor, (ii) the issuance of Equity Interests
by Holdings
the proceeds of which are used to fund Permitted Acquisitions,
(iii) Equity
Interests issued by Holdings as compensation to employees of
Holdings and its
Subsidiaries in the ordinary course of business and (iv) the
issuance of
Permitted Cure Securities.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent, any
Lender, the Issuing Bank or any other recipient of any payment to
be made by or
on account of any obligation of the Borrower hereunder, (a) income
or franchise
taxes imposed on (or measured by) its net income by the United
States of
America, or by the jurisdiction under the laws of which such
recipient is
organized or in which its principal office is located or, in the
case of any
Lender, in which its applicable lending office is located, (b) any
branch
profits taxes imposed by the United States of America or any
similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in
the case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower
under Section 2.20(a)), any withholding tax that is imposed on
amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a
party to
<PAGE>
11
this Agreement (or designates a new lending office) or is
attributable to such
Foreign Lender's failure to comply with Section 2.19(e), except to
the extent
that such Foreign Lender (or its assignor, if any) was entitled, at
the time of
designation of a new lending office (or assignment), to receive
additional
amounts from the Borrower with respect to such withholding tax
pursuant to
Section 2.19(a).
"Executive Order" shall mean have the meaning assigned to such term
in
Section 3.26.
"Existing Credit Agreement" shall mean the Amended and Restated
Credit
Agreement, dated as of April 30, 2004, among the Company, the
lenders party
thereto and Merrill Lynch Capital, as administrative agent, as such
agreement
may be amended, supplemented or otherwise modified from time to
time prior to
the date hereof.
"Facility" shall mean each of (a) the Term Commitments and the Term
Loans
made thereunder (the "Term Facility"), (b) the Incremental Term
Commitments and
the Incremental Term Loans made thereunder (the "Incremental Term
Loan
Facility") and (c) the Revolving Credit Commitments and the
extensions of credit
made thereunder (the "Revolving Facility").
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average of the rates on overnight federal funds transactions with
members of the
Federal Reserve System arranged by federal funds brokers, as
published on the
next succeeding Business Day by the Federal Reserve Bank of New
York, or, if
such rate is not so published for any day that is a Business Day,
the average of
the quotations for the day of such transactions received by
JPMorgan Chase Bank
from three federal funds brokers of recognized standing selected by
it.
"Fee
Letter" shall mean the Administrative Agent Fee Letter dated
October
12, 2004, between the Borrower and the Administrative Agent.
"Fee
Payment Date" shall mean (a) the third Business Day following the
last
day of each March, June, September and December and (b) the
Revolving Credit
Maturity Date.
"Fees" shall mean the Commitment Fees, the Administrative Agent
Fees, the
L/C Participation Fees, the Issuing Bank Fees and any other fees
payable by a
Loan Party pursuant to a fee agreement entered into with the
Administrative
Agent or any other Lender.
"Financial Officer" of any person shall mean the chief financial
officer,
principal accounting officer, Treasurer or Controller of such
person.
"Financial Performance Covenant" shall have the meaning assigned to
such
term in Article VII.
"Foreign Assets Control Regulations" shall mean have the meaning
assigned
to such term in Section 3.26.
"Foreign Lender" shall mean any Lender that is organized under the
laws of
a jurisdiction other than that in which the Borrower is located.
For purposes of
this definition, the United States of America, each State thereof
and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic
Subsidiary.
"Funded Debt" shall mean, as to any Person, all Indebtedness of
such Person
that matures more than one year from the date of its creation or
matures within
one year from such date but is renewable or extendible, at the
option of such
Person, to a date more than one year from such date or arises under
a
<PAGE>
12
revolving credit or similar agreement that obligates the lender or
lenders to
extend credit during a period of more than one year from such date,
including
all current maturities and current sinking fund payments in respect
of such
Indebtedness whether or not required to be paid within one year
from the date of
its creation and, in the case of the Borrower, Indebtedness in
respect of the
Loans.
"Funding Office" shall mean the office of the Administrative
Agent
specified in Section 9.1 or such other office as may be specified
from time to
time by the Administrative Agent as its funding office by written
notice to the
Borrower and the Lenders.
"GAAP" shall mean United States of America generally accepted
accounting
principles.
"Governmental Authority" shall mean any Federal, state, local or
foreign
court or governmental agency, authority, instrumentality or
regulatory body.
"Group Members" shall mean the collective reference to Holdings,
the
Borrower and the Subsidiaries.
"Guarantee" of or by any person shall mean any obligation,
contingent or
otherwise, of such person guaranteeing or having the economic
effect of
guaranteeing any Indebtedness or other obligation of any other
person (the
"primary obligor") in any manner, whether directly or indirectly,
and including
any obligation of such person, direct or indirect, (a) to purchase
or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or
other obligation or to purchase (or to advance or supply funds for
the purchase
of) any security for the payment of such Indebtedness or other
obligation, (b)
to purchase or lease property, securities or services for the
purpose of
assuring the owner of such Indebtedness or other obligation of the
payment of
such Indebtedness or other obligation or (c) to maintain working
capital, equity
capital or any other financial statement condition or liquidity of
the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not
include
endorsements for collection or deposit in the ordinary course of
business.
"Guarantee and Collateral Agreement" shall mean the Guarantee
and
Collateral Agreement to be executed and delivered by Holdings, the
Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit
C.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials"
shall mean (a) any petroleum products or byproducts
and all other hydrocarbons, coal ash, radon gas, asbestos, urea
formaldehyde
foam insulation, polychlorinated biphenyls, chlorofluorocarbons and
all other
ozone-depleting substances and (b) any chemical, material,
substance or waste
that is prohibited, limited or regulated by or pursuant to any
Environmental
Law.
"HealthScribe Acquisition" shall mean the acquisition of
HealthScribe,
Inc., a Delaware corporation, by the Borrower or a Subsidiary
Guarantor pursuant
to the Agreement and Plan of Merger dated as of September 20, 2004
among
HealthScribe, Inc., MTS Group Holdings, Inc. and HSI Merger Sub.
Inc., as
amended.
"HealthScribe Acquisition Date" shall mean the date on which
the
HealthScribe Acquisition is consummated.
<PAGE>
13
"Hedging Agreement" shall mean any interest rate protection
agreement,
foreign currency exchange agreement, commodity price protection
agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Holdings" shall have the meaning assigned to such term in the
preamble
hereto.
"Holdings Equity Contribution" shall have the meaning assigned to
such term
in Section 4.2(j).
"Inactive Subsidiary" shall mean any Subsidiary of the Borrower
that (a)
does not conduct any business operations, (b) has assets with a
total book value
not in excess of $10,000 and (c) does not have any Indebtedness
outstanding.
"Incremental Term Lender" shall mean a Lender with an Incremental
Term Loan
Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time,
$50,000,000.
"Incremental Term Loan Assumption Agreement" shall mean an
Incremental Term
Loan Assumption Agreement in form and substance reasonably
satisfactory to the
Administrative Agent, among the Borrower, the Administrative Agent
and one or
more Incremental Term Lenders.
"Incremental Term Loan Borrowing" shall mean a Borrowing comprised
of
Incremental Term Loans.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender,
established pursuant to Section 2.23, to make Incremental Term
Loans to the
Borrower.
"Incremental Term Loan Maturity Date" shall mean the final maturity
date of
any Incremental Term Loan, as set forth in the Incremental Term
Loan Assumption
Agreement.
"Incremental Term Loan Repayment Dates" shall mean the dates
scheduled for
the repayment of principal of any Incremental Term Loan, as set
forth in the
Incremental Term Loan Assumption Agreement.
"Incremental Term Loans" shall mean Term Loans made by one or more
Lenders
to the Borrower pursuant to Section 2.1(b). Incremental Term Loans
may be made
in the form of additional Term Loans or, to the extent permitted by
Section 2.23
and provided for in the relevant Incremental Term Loan Assumption
Agreement,
Other Term Loans.
"Indebtedness" of any person shall mean, without duplication, (a)
all
obligations of such person for borrowed money, (b) all obligations
of such
person evidenced by bonds, debentures, notes or similar
instruments, (c) all
obligations of such person under conditional sale or other title
retention
agreements relating to property or assets purchased by such person,
(d) all
obligations of such person issued or assumed as the deferred
purchase price of
property or services (excluding trade accounts payable and accrued
obligations
incurred in the ordinary course of business), (e) all Indebtedness
of others
secured by (or for which the holder of such Indebtedness has an
existing right,
contingent or otherwise, to be secured by) any Lien on property
owned or
acquired by such person, whether or not the obligations secured
thereby have
been assumed (it being understood that, unless such person shall
have assumed
such obligations, the amount of such Indebtedness shall be the
lesser of (x) the
fair market value of the property securing such Indebtedness and
(y) the stated
principal amount of such Indebtedness), (f) all Guarantees by such
person of
Indebtedness of others, (g) all Capital Lease Obligations and
Synthetic
<PAGE>
14
Lease Obligations of such person, (h) all outstanding reimbursement
obligations
of such person as an account party in respect of letters of credit,
(i) all
obligations of such person in respect of bankers' acceptances and
(j) all
obligations of such person under or in respect of Hedging
Agreements. For
purposes of determining the amount of Indebtedness of any person
under clause
(j) of the preceding sentence, the amount of the obligations of
such person in
respect of any Hedging Agreement at any time shall be zero prior to
the time any
counterparty to such Hedging Agreement shall be entitled to
terminate such
Hedging Agreement and, thereafter, shall be the maximum aggregate
amount (giving
effect to any netting agreements) that such person would be
required to pay if
such Hedging Agreement were terminated at such time. The
Indebtedness of any
person shall include the Indebtedness of any partnership in which
such person is
a general partner only to the extent such person is liable therefor
by contract,
as a matter of law or otherwise, and shall not include any
Indebtedness of such
partnership that is expressly non-recourse to such person. For
clarification
purposes, the liability of the Borrower or any Subsidiary Guarantor
to make any
periodic payments to licensors in consideration for the license of
patents and
technical information under license agreements in existence on the
Closing Date
and any amount payable in respect of a settlement of disputes with
respect to
such payments thereunder, shall not constitute Indebtedness.
Indebtedness
incurred by Holdings pursuant to Section 6.1 shall not be included
in the
computations under Section 6.11 or 6.12. Notwithstanding any other
provision of
this Agreement to the contrary, (i) the term "Indebtedness" shall
not be deemed
to include (x) any earn-out obligation until such obligation
becomes a liability
on the balance sheet of the applicable Person, (y) any deferred
compensation
arrangements or (z) any non compete or consulting obligations
incurred in
connection with Permitted Acquisitions or the HealthScribe
Acquisition and (ii)
the amount of Indebtedness for which recourse is limited either to
a specified
amount or to an identified asset of such Person shall be deemed to
be equal to
such specified amount or the fair market value of such identified
asset, as the
case may be.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Intellectual Property" shall have the meaning assigned to such
term in the
Guarantee and Collateral Agreement.
"Interest Coverage Ratio" shall mean, for any period, the ratio of
(a)
Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for
such period.
"Interest Payment Date" shall mean (a) as to any ABR Loan (other
than any
Swingline Loan), the last day of each March, June, September and
December to
occur while such Loan is outstanding and the final maturity date of
such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three
months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan
having an
Interest Period longer than three months, each day that is three
months, or a
whole multiple thereof, after the first day of such Interest Period
and the last
day of such Interest Period, (d) as to any Loan (other than any
Revolving Loan
that is an ABR Loan and any Swingline Loan), the date of any
repayment or
prepayment made in respect thereof and (e) as to any Swingline
Loan, the day
that such Loan is required to be repaid.
"Interest Period" shall mean, as to any Eurodollar Loan, (a)
initially, the
period commencing on the borrowing or conversion date, as the case
may be, with
respect to such Eurodollar Loan and ending one, two, three or six
or (if
available to all Lenders under the relevant Facility) twelve months
thereafter,
as selected by the Borrower in its notice of borrowing or notice of
conversion,
as the case may be, given with respect thereto; and (b) thereafter,
each period
commencing on the last day of the next preceding Interest Period
applicable to
such Eurodollar Loan and ending one, two, three or six or (if
available to all
Lenders under the relevant Facility) twelve months thereafter, as
selected by
the Borrower by irrevocable notice to the Administrative Agent not
later than
12:00 (noon), New York City Time, on the date that is three
Business Days prior
to the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are
subject to the following:
<PAGE>
15
(i) if any Interest Period would otherwise end on a day that is not
a
Business Day, such Interest Period shall be extended to the next
succeeding
Business Day unless the result of such extension would be to carry
such
Interest Period into another calendar month in which event such
Interest
Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a
particular
Facility that would extend beyond the Revolving Credit Maturity
Date or
beyond the date final payment is due on the Term Loans, as the case
may be;
and
(iii) any Interest Period that begins on the last Business Day of
a
calendar month (or on a day for which there is no numerically
corresponding
day
in the calendar month at the end of such Interest Period) shall end
on
the
last Business Day of a calendar month.
"Issuing Bank" shall mean, as the context may require, (a) JPMorgan
Chase
Bank, in its capacity as the issuer of Letters of Credit hereunder,
and (b) any
other Lender that may become an Issuing Bank pursuant to Section
2.22(i) or
2.22(k), with respect to Letters of Credit issued by such Lender.
The Issuing
Bank may, in its discretion, arrange for one or more Letters of
Credit to be
issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit
issued by
such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section
2.5(c).
"L/C
Commitment" shall mean the commitment of the Issuing Bank to
issue
Letters of Credit pursuant to Section 2.22.
"L/C
Disbursement" shall mean a payment or disbursement made by the
Issuing
Bank pursuant to a Letter of Credit.
"L/C
Exposure" shall mean at any time the sum of (a) the aggregate
undrawn
amount of all outstanding Letters of Credit at such time and (b)
the aggregate
principal amount of all L/C Disbursements that have not yet been
reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any
time shall
equal its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C
Participation Fee" shall have the meaning assigned to such term
in
Section 2.5(c).
"Lenders" shall mean (a) the persons listed on Schedule 2.1 (other
than any
such person that has ceased to be a party hereto pursuant to an
Assignment and
Assumption) and (b) any person that has become a party hereto
pursuant to an
Assignment and Assumption. Unless the context clearly indicates
otherwise, the
term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant
to
Section 2.22.
"Leverage Ratio" shall mean, on any date, the ratio of the
total
Indebtedness of the Borrower and the Subsidiaries on a consolidated
basis on
such date to Consolidated EBITDA for the period of four consecutive
fiscal
quarters most recently ended on or prior to such date.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of
trust, lien, pledge, encumbrance, charge or security interest in or
on such
asset, (b) the interest of a vendor or a lessor under any
conditional sale
agreement, capital lease or title retention agreement (or any
financing lease
having substantially the same economic effect as any of the
foregoing) relating
to such asset and (c) in the case of securities, any purchase
option, call or
similar right of a third party with respect to such securities.
<PAGE>
16
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the
Security Documents, any fee letters entered into between any Loan
Party and the
Administrative Agent or any Lender and the Incremental Term Loan
Assumption
Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline
Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the
business, assets, operations, properties, financial condition or
liabilities of
Holdings, the Borrower and the Subsidiaries, taken as a whole, (b)
a material
impairment of the ability of the Borrower or any other Loan Party
to perform any
of its obligations under any Loan Document to which it is or will
be a party or
(c) a material impairment of the rights of or benefits available to
the Lenders
under any Loan Document.
"Material Indebtedness" shall mean Indebtedness (other than the
Loans and
Letters of Credit) of any one or more of Holdings, the Borrower and
the
Subsidiaries in an aggregate principal amount exceeding
$2,500,000.
"Material Subsidiary" shall mean, at any time, any Subsidiary which
at such
time shall be a "significant subsidiary" of the Borrower within the
meaning of
Regulation S-X of the SEC as in effect on the date hereof;
provided, that the
Borrower and its Material Subsidiaries shall at all times have
assets during the
term of this Agreement constituting at least 90% of the Borrower's
consolidated
total assets; provided, further, that each Subsidiary which owns
any
Intellectual Property (other than Intellectual Property with an
aggregate fair
market value of less than $150,000) shall be deemed to be a
Material Subsidiary
hereunder.
"Materials of Environmental Concern" shall mean any gasoline or
petroleum
(including crude oil or any fraction thereof) or petroleum
products, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation, molds,
pollutants,
contaminants, radioactivity, radiofrequency radiation or any other
radiation
associated with or allegedly associated with the telecommunications
business,
and any other substance of any kind that is regulated pursuant to
or gives rise
to liability under any applicable Environmental Law.
"Maximum Rate" shall have the meaning assigned to such term in
Section 9.9.
"Merger" shall have the meaning assigned to such term in the
recitals.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgaged Properties" shall mean each parcel of real property
and
improvements thereto with respect to which a Mortgage is granted
pursuant to
Section 5.9.
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages,
assignments of leases and rents, modifications and other security
documents
delivered pursuant to Section 5.9, each substantially in the form
of Exhibit F.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section
4001(a)(3) of ERISA.
<PAGE>
17
"Net
Cash Proceeds" shall mean (a) with respect to any Asset Sale or
Recovery Event, the cash proceeds (including cash proceeds
subsequently received
(as and when received) in respect of noncash consideration
initially received),
net of (i) selling expenses (including reasonable broker's and
investment
banking fees or commissions, legal, environmental assessment,
appraisal and
consultant's fees, transfer and similar taxes and the Borrower's
good faith
estimate of income taxes paid or payable in connection with such
sale), (ii)
amounts provided as a reserve, in accordance with GAAP, against (A)
any
liabilities under any indemnification obligations or purchase price
adjustment
associated with such Asset Sale and (B) any liabilities associated
with such
asset or assets and retained by the Borrower or any of its
Subsidiaries after
such sale or other disposition thereof, including, without
limitation, pension
and other post-employment benefit liabilities and liabilities
related to
environmental matters or against any indemnification obligations
associated with
such transaction (provided, that, to the extent and at the time any
such amounts
are released from such reserve, such amounts shall constitute Net
Cash Proceeds)
and (iii) the principal amount, premium or penalty, if any,
interest and other
amounts on any Indebtedness for borrowed money which is secured by
the asset
sold in such Asset Sale or the asset relating to such Recovery
Event, as
applicable, and which is required to be repaid with such proceeds
(other than
any such Indebtedness assumed by the purchaser of such asset);
provided,
however, that, if (x) the Borrower shall deliver a certificate of a
Financial
Officer to the Administrative Agent at the time of receipt thereof
setting forth
the Borrower's intent to reinvest such proceeds in productive
assets of a kind
used or useful in the business of the Borrower and its Subsidiaries
within 365
days of receipt of such proceeds and (y) no Default or Event of
Default shall
have occurred and shall be continuing at the time of such
certificate or at the
proposed time of the application of such proceeds, such proceeds
shall not
constitute Net Cash Proceeds except to the extent not so used or
contractually
committed to be used at the end of such 365-day period, at which
time such
proceeds shall be deemed to be Net Cash Proceeds; and (b) with
respect to any
issuance or incurrence of Indebtedness or any issuance or sale of
Equity
Interests, the cash proceeds thereof, net of all taxes and fees
(including
investment banking fees, underwriting discounts, commissions, costs
and other
out-of-pocket expenses and other customary expenses) incurred in
connection
therewith.
"Not
Otherwise Applied" shall mean, with reference to any amount of
Net
Cash Proceeds of any transaction or event or of Excess Cash Flow,
that such
amount was not required to be applied to prepay the Loans pursuant
to Section
2.13(c).
"Obligations" the unpaid principal of and interest on (including
interest
accruing after the maturity of the Loans (including the Incremental
Term Loans)
and Reimbursement Obligations and interest accruing after the
filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or
like proceeding, relating to the Borrower, whether or not a claim
for
post-filing or post-petition interest is allowed in such
proceeding) the Loans
and all other obligations and liabilities of the Borrower to the
Administrative
Agent or to any Lender (or, in the case of Specified Hedging
Agreements, any
affiliate of any Lender), whether direct or indirect, absolute or
contingent,
due or to become due, or now existing or hereafter incurred, which
may arise
under, out of, or in connection with, this Agreement, any other
Loan Document,
the Letters of Credit, any Specified Hedging Agreement or any other
document
made, delivered or given in connection herewith or therewith,
whether on account
of principal, interest, reimbursement obligations, fees,
indemnities, costs,
expenses (including all fees, charges and disbursements of counsel
to the
Administrative Agent or to any Lender that are required to be paid
by the
Borrower pursuant hereto) or otherwise.
"OID" shall have the meaning assigned to such term in Section
2.23(b).
"Other Taxes" shall mean any and all present or future stamp or
documentary
taxes or any other excise or property taxes, charges or similar
levies arising
from any payment made under any Loan
<PAGE>
18
Document or from the execution, delivery or enforcement of, or
otherwise with
respect to, any Loan Document.
"Other Term Loans" shall have the meaning assigned to such term in
Section
2.23(a).
"Parent" shall mean any direct or indirect parent of Holdings.
"Participant" shall have the meaning assigned to such term in
Section
9.4(c).
"Patriot Act" shall have the meaning assigned to such term in
Section 9.17.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and
defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Exhibit D, prepared by the
Borrower.
"Permitted Acquisition" shall have the meaning assigned to such
term in
Section 6.4(g).
"Permitted Cure Securities" shall have the meaning assigned to such
term in
Article VII.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of
America (or by any agency thereof to the extent such obligations
are backed
by
the full faith and credit of the United States of America) or, in
the
case
of a Foreign Subsidiary, marketable direct obligations issued by
or
unconditionally
guaranteed by the government of the country of such Foreign
Subsidiary or backed by the full faith and credit of the government
of the
country of such Foreign Subsidiary, in each case maturing within
one year
from
the date of acquisition thereof;
(b) investments in commercial paper maturing within one year from
the
date
of acquisition thereof and having, at such date of acquisition, one
of
the
two highest credit ratings obtainable from Standard & Poor's
Ratings
Service or from Moody's Investors Service, Inc. or carrying an
equivalent
rating by a nationally recognized rating agency, if both of the two
named
rating agencies cease publishing ratings of investments;
(c) investments in certificates of deposit, Eurodollar
deposits,
overnight bank deposits or banker's acceptances, demand deposits
and time
deposits maturing within one year from the date of acquisition
thereof
issued or guaranteed by or placed with, and money market deposit
accounts
issued or offered by, the Administrative Agent or any domestic
office of
any
Lender or any other commercial bank organized under the laws of
the
United States of America or any State thereof that has a combined
capital
and
surplus and undivided profits of not less than $500,000,000 or
issued
by
or offered by a bank organized under the laws of any foreign
country
recognized by the United States the long-term debt of which is
rated at
least "A" or the equivalent by S&P or "A" or the equivalent
thereof by
Moody's having at the date of acquisition thereof combined capital
and
surplus of not less than $500,000,000 or the foreign currency
equivalent
thereof;
(d) fully collateralized repurchase agreements with a term of not
more
than
30 days for securities described in clause (a) above and entered
into
with
a financial institution satisfying the criteria of clause (c)
above;
<PAGE>
19
(e) investments in marketable direct obligations issued by any
state
of
the United States of America or any political subdivision of any
such
state or any public instrumentality thereof maturing within one
year from
the
date of acquisition thereof and having, at such date of
acquisition,
one
of the two highest credit ratings obtainable from Standard &
Poor's
Ratings Service or from Moody's Investors Service, Inc.;
(f) investments in "money market funds" within the meaning of
Rule
2a-7
of the Investment Company Act of 1940, as amended, substantially
all
of
whose assets are invested in investments of the type described
in
clauses (a) through (e) above;
(g) other short-term investments utilized by Foreign Subsidiaries
in
accordance with normal investment practices for cash management
in
investments of a type analogous to the foregoing; and
(h) solely with respect to any Foreign Subsidiary, non-Dollar
denominated (i) certificates of deposit of, bankers acceptances of,
or time
deposits with, any commercial bank which is organized and existing
under
the
laws of the country in which such Foreign Subsidiary maintains
its
chief executive office and principal place of business provided
such
country is a member of the Organization for Economic Cooperation
and
Development, and whose short-term commercial paper rating from
S&P is at
least A-1 or the equivalent thereof or from Moody's is at least P-1
or the
equivalent thereof (any such bank being an "Approved Foreign Bank")
and
maturing within twelve (12) months of the date of acquisition and
(ii)
equivalents of demand deposit accounts which are maintained with
an
Approved Foreign Bank.
"Permitted Investors" shall mean (a) the Sponsor, (b) the other
holders of
Equity Interests in Holdings on the Closing Date and, to the extent
approved by
the Administrative Agent (such approval not to be unreasonably
withheld) other
persons who, within 45 days after the Closing Date, become holders
of Equity
Interests in Holdings (and any Affiliate of any such person under
this clause
(b)) and (c) the directors, executive officers and other management
employees of
Holdings or the Borrower on the Closing Date.
"Permitted Subordinated Bridge Loan Refinancing" shall mean the
repayment
in full of the Subordinated Bridge Loans from the net proceeds of
a
substantially concurrent issuance of (i) Subordinated Indebtedness
or
Subordinated Mezzanine Indebtedness or (ii) non-mandatorily
redeemable common
Equity Securities of Holdings.
"person" shall mean any natural person, corporation, business
trust, joint
venture, association, company, limited liability company,
partnership,
Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would
under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of
ERISA.
"Pricing Grid" the table set forth below:
<PAGE>
20
<TABLE>
<CAPTION>
EURODOLLAR SPREAD-
ABR SPREAD-
REVOLVING LOANS AND SWINGLINE REVOLVING LOANS AND
SWINGLINE
LEVERAGE RATIO
LOANS
LOANS
--------------
-----------------------------
-----------------------------
<S>
<C>
<C>
Category 1
3.00%
2.00%
Greater than 5.00 to 1.00
Category 2
Greater than 4.50 to 1.00, but
2.75%
1.75%
less than or equal to 5.00 to
1.00
Category 3
2.50%
1.50%
Greater than 4.00 to 1.00, but
less than or equal to 4.00 to
1.00
Category 4
2.25%
1.75%
Less than or equal to 4.00 to
1.00
</TABLE>
Each
change in the Applicable Percentage resulting from a change in
the
Leverage Ratio shall be effective with respect to all Loans and
Letters of
Credit outstanding on and after the date (the "Adjustment Date") of
delivery to
the Administrative Agent of the financial statements and
certificates required
by Section 5.4(a) or (b) and Section 5.4(c), respectively,
indicating such
change, and until the date immediately preceding the next date of
delivery of
such financial statements and certificates indicating another such
change.
Notwithstanding the foregoing, until the Borrower shall have
delivered the
financial statements and certificates required by Section 5.4(a)
and Section
5.4(d), respectively, for the fiscal period ended on or about
December 31, 2004,
the Leverage Ratio shall be deemed to be in Category 1 for purposes
of
determining the Applicable Percentage. In addition, (a) at any time
during which
the Borrower has failed to deliver the financial statements and
certificates
required by Section 5.4(a) or (b) and Section 5.4(c), respectively,
or (b) at
any time after the occurrence and during the continuance of an
Event of Default,
the Administrative Agent or the Required Lenders may require that
the Leverage
Ratio shall be deemed to be in Category 1 for purposes of
determining the
Applicable Percentage. The Applicable Percentage may be increased
from time to
time by .25% per annum as provided for in Section 2.6(c).
"Pro
Forma Basis" shall mean, with respect to compliance with any test
or
covenant hereunder, compliance with such covenant or test after
giving effect to
any proposed Permitted Acquisition, the HealthScribe Acquisition or
Asset Sale
(including pro forma adjustments arising out of events which are
directly
attributable to the proposed Permitted Acquisition, the
HealthScribe Acquisition
or Asset Sale, are factually supportable and are expected to have a
continuing
impact, in each case as reasonably determined by the Borrower and
as certified
by a Financial Officer of the Borrower and approved by the
Administrative Agent)
using, for purposes of determining such compliance, the historical
financial
statements of all entities or assets so acquired or sold or to be
acquired or
sold and the consolidated financial statements of the Borrower and
its
Subsidiaries which shall be reformulated as if such Permitted
Acquisitions, the
HealthScribe Acquisition or Asset Sale, and all other Permitted
Acquisitions,
the HealthScribe Acquisition or Asset Sales that have been
consummated during
the period, and any Indebtedness or other liabilities incurred or
repaid in
connection with any such Permitted Acquisitions,
<PAGE>
21
the HealthScribe Acquisition or Asset Sale had been consummated and
incurred or
repaid at the beginning of such period (and if such Indebtedness
has a floating
or formula rate, shall have an implied rate of interest for the
applicable
period for purposes of this definition determined by utilizing the
rate which is
or would be in effect with respect to such Indebtedness as at the
relevant date
of determination); provided, that, in connection with any Permitted
Acquisition
and the HealthScribe Acquisition, the Borrower shall be permitted
to assume cost
savings certified by a Responsible Officer of the Borrower and
expected to be
achieved within a twelve-month period following the closing of such
Permitted
Acquisition or the HealthScribe Acquisition, as the case may be if
the
consolidated balance sheet of such acquired Person and its
consolidated
Subsidiaries as at the end of the period preceding the acquisition
of such
Person and the related consolidated statements of income and
stockholders'
equity and of cash flows for the period in respect of which
Consolidated EBITDA
is to be calculated (x) have been previously provided to the
Administrative
Agent and (y) either (1) have been reported on without a
qualification arising
out of the scope of the audit by independent certified public
accountants of
nationally recognized standing or (2) have been found acceptable by
the
Administrative Agent. For purposes of determining compliance with
the covenants
set forth in Sections 6.11 and 6.12 (and the computations made for
purposes of
determining the Applicable Percentage), all calculations shall be
made on a Pro
Forma Basis after giving effect to the Transactions, treating each
as if it were
a Permitted Acquisition (subject, in the case of the Transactions,
to the
limitations contained in clause (a)(iv) of the definition of
Consolidated
EBITDA).
"Pro
Forma Compliance" shall mean, at any date of determination, that
the
Borrower shall be in pro forma compliance with the covenants set
forth in
Sections 6.11 and 6.12 as of the date of such determination or the
last day of
the most recent fiscal quarter-end, as the case may be (computed on
the basis of
(a) balance sheet amounts as of such date and (b) income statement
amounts for
the most recently completed period of four consecutive fiscal
quarters for which
financial statements shall have been delivered to the
Administrative Agent and
calculated on a Pro Forma Basis in respect of the event giving rise
to such
determination).
"Pro
Rata Percentage" shall mean, of any Revolving Credit Lender at
any
time shall mean the percentage of the Total Revolving Credit
Commitment
represented by such Lender's Revolving Credit Commitment. In the
event the
Revolving Credit Commitments shall have expired or been terminated,
the Pro Rata
Percentages shall be determined on the basis of the Revolving
Credit Commitments
most recently in effect.
"Public Equity Offering" shall mean an underwritten public offering
of
common stock of, and by, Holdings or Parent pursuant to a
registration statement
filed with the SEC in accordance with the Securities Act of 1933,
as amended.
"Recovery Event" shall mean any settlement of or payment in respect
of any
property or casualty insurance claim or any condemnation proceeding
relating to
any asset of any Loan Party.
"Register" shall have the
meaning assigned to such term in Section 9.4(b).
"Regulation T" shall mean Regulation T of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in
effect and all official rulings and interpretations thereunder or
thereof.
<PAGE>
22
"Reimbursement Obligation" shall mean the obligation of the
Borrower to
reimburse the Issuing Bank pursuant to Section 2.22(e) for amounts
drawn under
Letters of Credit.
"Related Parties" shall mean, with respect to any specified person,
such
person's Affiliates and the respective directors, officers,
employees, agents
and advisors of such person and such person's Affiliates.
"Release" shall mean any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal, discharge, dispersal,
leaching or
migration into or through the environment or within or upon any
building,
structure, facility or fixture.
"Repayment Date" shall have the meaning assigned to such term in
Section
2.11.
"Required Lenders" shall mean, at any time, the holders of more
than 50% of
(a) until the Closing Date, the Commitments then in effect and (b)
thereafter,
the sum of (i) the aggregate unpaid principal amount of the Term
Loans then
outstanding and (ii) the Total Revolving Credit Commitments then in
effect or,
if the Revolving Credit Commitments have been terminated, the total
Revolving
Credit Exposure of all Lenders at such time; provided, that the
unused Term
Commitment, unused Revolving Credit Commitment of, and the portion
of the Term
Loans and Revolving Credit Exposure held or deemed held by, any
Defaulting
Lender shall be excluded for purposes of making a determination of
Required
Lenders.
"Responsible Officer" of any person shall mean any executive
officer or
Financial Officer of such person and any other officer or similar
official
thereof responsible for the administration of the obligations of
such person in
respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of Holdings, the
Borrower
or any Subsidiary, the payment, prepayment, repurchase or
defeasance of which is
restricted under Section 6.9(b).
"Restricted Payment" shall mean any dividend or other distribution
(whether
in cash, securities or other property) with respect to any Equity
Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether
in cash,
securities or other property), including any sinking fund or
similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or
termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary
or any option, warrant or other right to acquire any such Equity
Interests in
Holdings, the Borrower or any Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving
Loans.
"Revolving Credit Commitment" shall mean, as to any Lender, the
obligation
of such Lender, if any, to make Revolving Credit Loans and
participate in
Swingline Loans and Letters of Credit in an aggregate principal
and/or face
amount not to exceed the amount set forth under the heading
"Revolving Credit
Commitment" opposite such Lender's name on Schedule 2.1 or in the
Assignment and
Assumption pursuant to which such Lender became a party hereto, as
the same may
be changed from time to time pursuant to the terms hereof.
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any
time, the aggregate principal amount at such time of all
outstanding Revolving
Loans of such Lender, plus the aggregate amount at such time of
such Lender's
L/C Exposure, plus the aggregate amount at such time of such
Lender's Swingline
Exposure. In the case of Revolving Loans denominated in Alternative
Currencies,
such amount shall be calculated using the Dollar Equivalent
thereof.
<PAGE>
23
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean November 5, 2009.
"Revolving Loans" shall mean the revolving loans made by the
Lenders to the
Borrower pursuant to clause (ii) of Section 2.1(a).
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall mean the Securities and Exchange Commission, any
successor
thereto and any analogous Governmental Authority.
"Second Priority Basis" shall mean the subordination of the
priority of any
Liens securing Subordinated Mezzanine Indebtedness and guarantees
thereof to the
priority of Liens securing the Obligations and guarantees thereof
pursuant to
the provisions of an intercreditor agreement (a) substantially in
the form of
Exhibit G hereto if the Subordinated Mezzanine Indebtedness is
issued within
ninety (90) days of the date hereof and (b) in a form approved by
the
Administrative Agent, the Syndication Agent and the Required
Lenders if the
Subordinated Mezzanine Indebtedness is issued thereafter.
"Secured Parties" shall have the meaning assigned to such term in
the
Guarantee and Collateral Agreement.
"Security Documents" shall mean the Mortgages, the Guarantee and
Collateral
Agreement and each of the security agreements, mortgages and other
instruments
and documents executed and delivered pursuant to any of the
foregoing or
pursuant to Section 5.9.
"Senior Secured Leverage Ratio" shall mean, on any date, the ratio
of the
sum of the outstanding principal amount of Loans and other senior
secured
Indebtedness of the Borrower and its Subsidiaries on a consolidated
basis on
such date to Consolidated EBITDA for the period of four consecutive
fiscal
quarters most recently ended on or prior to such date.
"Specified Hedging Agreement" shall mean any Hedging Agreement
entered into
by the Borrower and any Lender or affiliate thereof.
"Sponsor" shall mean Warburg Pincus Private Equity VIII, L.P.,
Warburg
Pincus International Partners, L.P., Soros Private Equity Investors
LP and their
respective Affiliates.
"Subordinated Bridge Loans" shall mean the subordinated bridge
loans made
to the Borrower pursuant to the Subordinated Bridge Loan
Agreement.
"Subordinated Bridge Loan Agreement" shall mean the Term Loan
Agreement
dated as of the date hereof among the Borrower, Holdings, the
lenders from time
to time party thereto and JPMCB, as administrative agent, together
with all
instruments and other agreements entered into by the Borrower,
Holdings or any
guarantors thereof in connection therewith.
"Subordinated Indebtedness" shall mean Indebtedness of the Borrower
(i)
which does not require the issuer thereof or any other obligor
thereon or any
Subsidiary thereof to maintain any specified financial condition or
performance
(other than as a condition to the taking of certain actions), (ii)
which is
unsecured, (iii) which contains no scheduled principal payments
prior to the
date which is six months
<PAGE>
24
after the Term Loan Termination Date and no mandatory prepayments
other than
customary asset sale and change of control prepayments (the terms
of which
provide that the Obligations shall be paid prior to any such
prepayment of such
Indebtedness) and (iv) which contains subordination provisions
reasonably
satisfactory to the Administrative Agent, together with any
exchange notes or
any replacement notes issued under the applicable Subordinated
Indebtedness
Agreement. Subordinated Indebtedness may be issued only if (x) no
Default or
Event of Default has occurred or will result therefrom and (ii) the
Borrower
will be in Pro Forma Compliance after giving effect thereto.
"Subordinated Indebtedness Agreement" shall mean the indenture,
note
purchase agreement, loan agreement or similar agreement entered
into by the
Borrower and certain of the Guarantors in connection with the
issuance of the
Subordinated Indebtedness or Subordinated Mezzanine Indebtedness,
together with
all instruments and other agreements entered into by the Borrower
or such
Guarantor in connection therewith.
"Subordinated Mezzanine Indebtedness" shall mean Indebtedness
issued in a
mezzanine financing transaction that satisfies the criteria for
Subordinated
Indebtedness except that (i) such Indebtedness may be secured by
the Collateral
to the extent permitted by Section 6.2(p) and (ii) such
Indebtedness may contain
financial maintenance covenants of the types, and calculated in the
manner of,
Sections 6.10, 6.11 and 6.12 (and each such covenant level shall be
at least
0.5x to 1.0 more favorable to the Borrower than the applicable
covenant level
required by this Agreement).
"subsidiary" shall mean, with respect to any person (herein
referred to as
the "parent"), any corporation, partnership, association or other
business
entity of which securities or other ownership interests
representing more than
50% of the equity or more than 50% of the ordinary voting power or
more than 50%
of the general partnership interests are, at the time any
determination is being
made, owned, controlled or held by the parent or one or more
subsidiaries of the
parent or a combination thereof.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary listed on
Schedule
1.1(a), and each other Subsidiary that is or becomes a party to the
Guarantee
and Collateral Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to
make loans pursuant to Section 2.21, as the same may be reduced
from time to
time pursuant to Section 2.9 or 2.21.
"Swingline Exposure" shall mean at any time the aggregate principal
amount
at such time of all outstanding Swingline Loans. The Swingline
Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean JPMorgan Chase Bank, in its capacity
as
lender of Swingline Loans hereunder.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant
to Section 2.21.
"Syndication Agent" shall have the meaning assigned to such term in
the
preamble hereto.
"Synthetic Lease" shall mean, as to any person, any lease
(including leases
that may be terminated by the lessee at any time) of any property
(whether real,
personal or mixed) (a) that is accounted for as an operating lease
under GAAP
and (b) in respect of which the lessee retains or obtains ownership
of the
property so leased for U.S. federal income tax purposes, other than
any such
lease under which such person is the lessor.
<PAGE>
25
"Synthetic Lease Obligations" shall mean, as to any person, an
amount equal
to the sum of (a) the obligations of such person to pay rent or
other amounts
under any Synthetic Lease which are attributable to principal and,
without
duplication, (b) the amount of any purchase price payment under any
Synthetic
Lease assuming the lessee exercises the option to purchase the
leased property
at the end of the lease term.
"Synthetic Purchase Agreement" shall mean any swap, derivative or
other
agreement or combination of agreements pursuant to which Holdings,
the Borrower
or any Subsidiary is or may become obligated to make (a) any
payment in
connection with a purchase by any third party from a person other
than Holdings,
the Borrower or any Subsidiary of any Equity Interest or Restricted
Indebtedness
of Holdings, the Borrower or a Subsidiary or (b) any payment (other
than on
account of a permitted purchase by it of any Equity Interest or
Restricted
Indebtedness) the amount of which is determined by reference to the
price or
value at any time of any Equity Interest or Restricted Indebtedness
of Holdings,
the Borrower or a Subsidiary; provided, that no phantom stock or
similar plan
providing for payments only to current or former directors,
officers or
employees of Holdings, the Borrower or the Subsidiaries (or to
their heirs or
estates) shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts,
duties, deductions, charges, liabilities or withholdings imposed by
any
Governmental Authority.
"Tax
Payments" shall mean net payments in cash by the Loan Parties
in
respect of Taxes pursuant to the Tax Sharing Agreement.
"Tax
Sharing Agreement" shall mean the Tax Sharing Agreement dated as
of
the Closing Date among Holdings, Parent, the Borrower and certain
Subsidiaries.
"Term Loan" shall have the meaning assigned to such term in Section
2.1(a).
Unless the context shall otherwise require, the term "Term Loans"
shall include
Incremental Term Loans.
"Term Loan Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Loan Commitment" shall mean, with respect to each Lender,
the
commitment of such Lender to make Term Loans hereunder as set forth
on Schedule
2.1, or in the Assignment and Assumption pursuant to which such
Lender assumed
its Term Loan Commitment, as applicable, as the same may be (i)
reduced from
time to time pursuant to Section 2.9 and (ii) reduced or increased
from time to
time pursuant to assignments by or to such Lender pursuant to
Section 9.4. The
original aggregate amount of the Term Loan Commitments is
$75,000,000.
"Term Loan Maturity Date" shall mean November 5, 2010.
"Term Percentage": as to any Lender at any time, the percentage
which such
Lender's Term Loan Commitment then constitutes of the aggregate
Term Loan
Commitments (or, at any time after the Closing Date, the percentage
which the
principal amount of such Lender's Term Loan then outstanding
constitutes of the
aggregate principal amount of the Term Loans then outstanding).
"Total Revolving
Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such
time. The
initial Total Revolving Credit Commitment is $25,000,000.
"Trading With the Enemy Act" shall have the meaning assigned to
such term
in Section 3.26.
<PAGE>
26
"Transactions" shall mean, collectively, (a) the execution,
delivery and
performance by Holdings and the Borrower of the Acquisition
Agreement and the
consummation of the Acquisition and the Merger, (b) the execution,
delivery and
performance by the Loan Parties of the Loan Documents to which they
are a party
and, in the case of the Borrower, the making of the initial
Borrowings
hereunder, (c) the execution, delivery and performance by the Loan
Parties of
the Subordinated Bridge Loan Agreement and related documents to
which they are a
party, (d) the repayment of all amounts outstanding or due under,
and the
termination of, the Existing Credit Agreement, (e) the Holdings
Equity
Contribution and (e) the payment of related fees and expenses.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the
Rate by reference to which interest on such Loan or on the Loans
comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall
include the
Eurodollar Rate and the Alternate Base Rate.
"Uniform Customs" shall have the meaning assigned to such term in
Section
9.7.
"wholly owned Subsidiary" of any person shall mean a subsidiary of
such
person of which securities (except for directors' qualifying shares
and other de
minimis ownership interests required to be owned under foreign law
by local
residents) or other ownership interests representing 100% of the
Equity
Interests are, at the time any determination is being made, owned,
controlled or
held by such person or one or more wholly owned Subsidiaries of
such person or
by such person and one or more wholly owned Subsidiaries of such
person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Terms Generally. The definitions in Section 1.1 shall
apply
equally to both the singular and plural forms of the terms defined.
Whenever the
context may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "include", "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation". The
word "will"
shall be construed to have the same meaning and effect as the word
"shall"; and
the words "asset" and "property" shall be construed as having the
same meaning
and effect and to refer to any and all tangible and intangible
assets and
properties, including cash, securities, accounts and contract
rights. All
references herein to Articles, Sections, Exhibits and Schedules
shall be deemed
references to Articles and Sections of, and Exhibits and Schedules
to, this
Agreement unless the context shall otherwise require. Except as
otherwise
expressly provided herein, (a) any reference in this Agreement to
any Loan
Document shall mean such document as amended, restated,
supplemented or
otherwise modified from time to time and (b) all terms of an
accounting or
financial nature shall be construed in accordance with GAAP, as in
effect from
time to time; provided, however, that if, before or after any
change in GAAP
occurs, the Borrower notifies the Administrative Agent that the
Borrower wishes
to amend any covenant in Article VI or any related definition to
eliminate the
effect of any such change in GAAP occurring after the date of this
Agreement on
the operation of such covenant (or if the Administrative Agent
notifies the
Borrower that the Required Lenders wish to amend Article VI or any
related
definition for such purpose), then the Borrower's compliance with
such covenant
(and the computations made for purposes of determining the
Applicable
Percentage) shall be determined on the basis of GAAP in effect
immediately
before the relevant change in GAAP became effective, until either
such notice is
withdrawn or such covenant is amended in a manner satisfactory to
the Borrower
and the Required Lenders.
Section 1.3. Pro Forma Calculations. With respect to any period
during
which any Permitted Acquisition, the HealthScribe Acquisition or
any Asset Sale
occurs as permitted pursuant to the terms hereof, the Leverage
<PAGE>
27
Ratio and the Interest Coverage Ratio shall be calculated with
respect to such
period and such Permitted Acquisition, the HealthScribe Acquisition
or such
Asset Sale on a Pro Forma Basis.
Section 1.4. Classification of Loans and Borrowings. For purposes
of this
Agreement, Loans may be classified and referred to by Class (e.g.,
a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
ARTICLE II
The Credits
Section 2.1. Commitments. (a) Subject to the terms and conditions
and
relying upon the representations and warranties herein set forth,
each Lender
agrees, severally and not jointly, (i) to make a term loan to the
Borrower in
Dollars (a "Term Loan") on the Closing Date in a principal amount
not to exceed
its Term Loan Commitment and (ii) to make Revolving Loans to the
Borrower in
Dollars, at any time and from time to time on or after the date
hereof and until
the earlier of the Revolving Credit Maturity Date and the
termination of the
Revolving Credit Commitment of such Lender in accordance with the
terms hereof,
in an aggregate principal amount at any time outstanding that will
not result in
such Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Credit
Commitment. Within the limits set forth in clause (ii) of the
preceding sentence
and subject to the terms, conditions and limitations set forth
herein, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans.
Amounts paid or
prepaid in respect of Term Loans may not be reborrowed.
(b)
Incremental Term Loans. Each Lender having an Incremental Term
Loan
Commitment hereby agrees, severally and not jointly, on the terms
and subject to
the conditions set forth herein and in the applicable Incremental
Term Loan
Assumption Agreement and in reliance on the representations and
warranties set
forth herein and in the other Loan documents, to make Incremental
Term Loans to
the Borrower, in an aggregate principal amount not to exceed its
Incremental
Term Loan Commitment. Amounts paid or prepaid in respect of
Incremental Term
Loans may not be reborrowed.
Section 2.2. Loans. (a) Each Loan (other than Swingline Loans)
shall be
made as part of a Borrowing consisting of Loans made by the Lenders
ratably in
accordance with their applicable Commitments; provided, however,
that the
failure of any Lender to make any Loan shall not in itself relieve
any other
Lender of its obligation to lend hereunder (it being understood,
however, that
no Lender shall be responsible for the failure of any other Lender
to make any
Loan required to be made by such other Lender). Except for Loans
deemed made
pursuant to Section 2.2(f) and Swingline Loans, the Loans
comprising any
Borrowing shall be in an aggregate principal amount that is (i) (A)
in the case
of a Revolving Borrowing, an integral multiple of $1,000,000 and
not less than
$1,000,000 and (B) in the case of a Term Loan Borrowing or an
Incremental Term
Loan Borrowing, an integral multiple of $1,000,000 and not less
than $5,000,000
(except with respect to any Incremental Term Loan Borrowing, to the
extent
otherwise provided in the related Incremental Term Loan Assumption
Agreement) or
(ii) in the case of any Borrowing, equal to the remaining available
balance of
the applicable Commitments.
(b)
Subject to Section 2.8, each Borrowing shall be comprised entirely
of
Eurodollar Loans or ABR Loans, as the Borrower may request pursuant
to Section
2.3. Each Lender may at its option make any Eurodollar Loan by
causing any
domestic or foreign branch or Affiliate of such Lender to make such
Loan;
provided, that any exercise of such option shall not affect the
obligation of
the Borrower to repay such Loan in accordance with the terms of
this Agreement.
Borrowings of more than one Type may be outstanding at the same
time; provided,
however, that the Borrower shall not be entitled to request any
<PAGE>
28
Borrowing that, if made, would result in more than ten (10)
Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the
foregoing,
Borrowings having different Interest Periods, regardless of whether
they
commence on the same date, shall be considered separate
Borrowings.
(c)
Except with respect to Loans made pursuant to Section 2.2(f)
and
Swingline Loans, each Lender shall make each Loan to be made by it
hereunder on
the proposed date thereof by wire transfer of immediately available
funds to the
Funding Office not later than 12:00 (noon), New York City Time, and
the
Administrative Agent shall promptly transfer the amounts so
received to the
account designated by the Borrower in the applicable Borrowing
Request or, if a
Borrowing shall not occur on such date because any condition
precedent herein
specified shall not have been met, return the amounts so received
to the
respective Lenders.
(d)
Unless the Administrative Agent shall have received notice from
a
Lender prior to the date of any Borrowing that such Lender will not
make
available to the Administrative Agent such Lender's portion of such
Borrowing,
the Administrative Agent may assume that such Lender has made such
portion
available to the Administrative Agent on the date of such Borrowing
in
accordance with paragraph (c) above and the Administrative Agent
may, in
reliance upon such assumption, make available to the Borrower on
such date a
corresponding amount. If the Administrative Agent shall have so
made funds
available then, to the extent that such Lender shall not have made
such portion
available to the Administrative Agent, such Lender and the Borrower
severally
agree to repay to the Administrative Agent forthwith on demand
such
corresponding amount together with interest thereon, for each day
from the date
such amount is made available to the Borrower until the date such
amount is
repaid to the Administrative Agent at (i) in the case of the
Borrower, the
interest rate applicable at the time to the Loans comprising such
Borrowing and
(ii) in the case of such Lender, a rate determined by the
Administrative Agent
to represent its cost of overnight or short-term funds (which
determination
shall be conclusive absent manifest error). If such Lender shall
repay to the
Administrative Agent such corresponding amount, such amount shall
constitute
such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(e)
Notwithstanding any other provision of this Agreement, the
Borrower
shall not be entitled to request any Revolving Credit Borrowing if
the Interest
Period requested with respect thereto would end after the Revolving
Credit
Maturity Date.
(f)
If the Issuing Bank shall not have received from the Borrower
the
payment required to be made by Section 2.22(e) within the time
specified in such
Section, the Issuing Bank will promptly notify the Administrative
Agent of the
L/C Disbursement and the Administrative Agent will promptly notify
each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata
Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of
immediately
available funds to the Administrative Agent not later than 2:00
p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall
have received
such notice later than 12:00 (noon), New York City time, on any
day, not later
than 10:00 a.m., New York City time, on the immediately following
Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C
Disbursement
(it being understood that such amount shall be deemed to constitute
an ABR
Revolving Loan of such Lender and such payment shall be deemed to
have reduced
the L/C Exposure), and the Administrative Agent will promptly pay
to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders.
The
Administrative Agent will promptly pay to the Issuing Bank any
amounts received
by it from the Borrower pursuant to Section 2.22(e) prior to the
time that any
Revolving Credit Lender makes any payment pursuant to this
paragraph (f); any
such amounts received by the Administrative Agent thereafter will
be promptly
remitted by the Administrative Agent to the Revolving Credit
Lenders that shall
have made such payments and to the Issuing Bank, as their interests
may appear.
If any Revolving Credit Lender shall not have made its Pro Rata
Percentage of
such L/C Disbursement available to the Administrative Agent as
provided above,
such Lender and the
<PAGE>
29
Borrower severally agree to pay interest on such amount, for each
day from and
including the date such amount is required to be paid in accordance
with this
paragraph to but excluding the date such amount is paid, to the
Administrative
Agent for the account of the Issuing Bank at (i) in the case of the
Borrower, a
rate per annum equal to the interest rate applicable to Revolving
Loans pursuant
to Section 2.6(a), and (ii) in the case of such Lender, for the
first such day,
the Federal Funds Effective Rate, and for each day thereafter, the
Alternate
Base Rate.
Section 2.3. Borrowing Procedure. In order to request a Borrowing
(other
than a Swingline Loan or a deemed Borrowing pursuant to Section
2.2(f), as to
which this Section 2.3 shall not apply), the Borrower shall hand
deliver or fax
to the Administrative Agent (or give telephonic notice promptly
confirmed by
written notice) a duly completed Borrowing Request (a) in the case
of a
Eurodollar Borrowing, not later than 12:00 (noon), New York City
Time, three
Business Days before a proposed Borrowing, and (b) in the case of
an ABR
Borrowing, not later than 12:00 (noon), New York City time, one
Business Day
before a proposed Borrowing. Each Borrowing Request shall be
irrevocable, shall
be signed by or on behalf of the Borrower and shall specify the
following
information: (i) whether the Borrowing then being requested is to
be a Term Loan
Borrowing, an Incremental Term Loan Borrowing or a Revolving Credit
Borrowing,
and whether such Borrowing is to be a Eurodollar Borrowing or an
ABR Borrowing
(provided, that until the Administrative Agent shall have notified
the Borrower
that the primary syndication of the Commitment has been completed
(which notice
shall be given as promptly as practicable and, in any event, within
7 days after
the Closing Date), the Borrower shall not be permitted to request a
Eurodollar
Borrowing); (ii) the date of such Borrowing (which shall be a
Business Day);
(iii) the number and location of the account to which funds are to
be disbursed;
(iv) the amount of such Borrowing; and (v) if such Borrowing is to
be a
Eurodollar Borrowing, the Interest Period with respect thereto;
provided,
however, that, notwithstanding any contrary specification in any
Borrowing
Request, each requested Borrowing shall comply with the
requirements set forth
in Section 2.2. If no election as to the Type of Borrowing is
specified in any
such notice, then the requested Borrowing shall be an ABR
Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is
specified in any
such notice, then the Borrower shall be deemed to have selected an
Interest
Period of one month's duration. The Administrative Agent shall
promptly advise
the applicable Lenders of any notice given pursuant to this Section
2.3 (and the
contents thereof), and of each Lender's portion of the requested
Borrowing.
Section 2.4. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby
unconditionally promises to pay to each Lender, through the
Administrative
Agent, (i) the principal amount of each Term Loan of such Lender as
provided in
Section 2.11 and (ii) the then unpaid principal amount of each
Revolving Loan of
such Lender on the Revolving Credit Maturity Date. The Borrower
hereby promises
to pay to the Swingline Lender the then unpaid principal amount of
each
Swingline Loan on the Revolving Credit Maturity Date.
(b)
Each Lender shall maintain in accordance with its usual practice
an
account or accounts evidencing the indebtedness of the Borrower to
such Lender
resulting from each Loan made by such Lender from time to time,
including the
amounts of principal and interest payable and paid to such Lender
from time to
time under this Agreement.
(c)
The Administrative Agent shall maintain accounts in which it
will
record (i) the amount of each Loan made hereunder, the Type thereof
and, if
applicable, the Interest Period applicable thereto, (ii) the amount
of any
principal or interest due and payable or to become due and payable
from the
Borrower to each Lender hereunder and (iii) the amount of any sum
received by
the Administrative Agent hereunder from the Borrower or any
Guarantor and each
Lender's share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraphs
(b)
and (c) above shall be prima facie evidence of the existence and
amounts of the
obligations therein recorded; provided,
<PAGE>
30
however, that the failure of any Lender or the Administrative Agent
to maintain
such accounts or any error therein shall not in any manner affect
the
obligations of the Borrower to repay the Loans in accordance with
their terms.
(e)
Any Lender may request that Loans made by it hereunder be evidenced
by
a promissory note. In such event, the Borrower shall execute and
deliver to such
Lender a promissory note payable to such Lender and its registered
assigns and
in a form and substance reasonably acceptable to the Administrative
Agent and
the Borrower. Notwithstanding any other provision of this
Agreement, in the
event any Lender shall request and receive such a promissory note,
the interests
represented by such note shall at all times (including after any
assignment of
all or part of such interests pursuant to Section 9.4) be
represented by one or
more promissory notes payable to the payee named therein or its
registered
assigns.
Section 2.5. Fees. (a) The Borrower agrees to pay to each Lender,
through
the Administrative Agent, on the last Business Day of March, June,
September and
December in each year and on each date on which any Commitment of
such Lender
shall expire or be terminated as provided herein, a commitment fee
(a
"Commitment Fee") equal to 0.50% per annum on the daily unused
amount of the
Commitments of such Lender (other than the Swingline Commitment)
during the
preceding quarter (or other period commencing with the date hereof
or ending
with the Revolving Credit Maturity Date or the date on which the
Commitments of
such Lender shall expire or be terminated); provided that any
commitment fee
accrued with respect to any of the Commitments of a Defaulting
Lender during the
period prior to the time such Lender became a Defaulting Lender and
unpaid at
such time shall not be payable by the Borrower so long as such
Lender shall be a
Defaulting Lender except to the extent that such commitment fee
shall otherwise
have been due and payable by the Borrower prior to such time; and
provided,
further that no commitment fee shall accrue on any of the
Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting
Lender. All
Commitment Fees shall be computed on the basis of the actual number
of days
elapsed in a year of 360 days. The Commitment Fee due to each
Lender shall
commence to accrue on the date hereof and shall cease to accrue on
the date on
which the Commitment of such Lender shall expire or be terminated
as provided
herein. For purposes of calculating Commitment Fees only, no
portion of the
Revolving Credit Commitments shall be deemed utilized as a result
of outstanding
Swingline Loans.
(b)
The Borrower agrees to pay to the Administrative Agent, for its
own
account, the administration fees set forth in the Fee Letter at the
times and in
the amounts specified therein (the "Administrative Agent
Fees").
(c)
The Borrower agrees to pay (i) to each Revolving Credit Lender,
through
the Administrative Agent, on each Fee Payment Date a fee (an "L/C
Participation
Fee") calculated on such Lender's Pro Rata Percentage of the daily
aggregate L/C
Exposure (excluding the portion thereof attributable to
unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period
commencing with
the date hereof or ending with the Revolving Credit Maturity Date
or the date on
which all Letters of Credit have been canceled or have expired and
the Revolving
Credit Commitments of all Lenders shall have been terminated) at a
rate per
annum equal to the Applicable Percentage from time to time used to
determine the
interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans
pursuant to Section 2.6, and (ii) to the Issuing Bank, for its own
account, a
fronting fee of 0.25% per annum on the undrawn and unexpired amount
of each
Letter of Credit, payable quarterly in arrears on each Fee Payment
Date after
the issuance date (the "Issuing Bank Fees"). All L/C Participation
Fees and
Issuing Bank Fees shall be computed on the basis of the actual
number of days
elapsed in a year of 360 days.
(d)
All Fees shall be paid in Dollars on the dates due, in
immediately
available funds, to the Administrative Agent for distribution, if
and as
appropriate, among the Lenders, except that the Issuing
<PAGE>
31
Bank Fees shall be paid directly to the Issuing Bank. Once paid,
none of the
Fees shall be refundable under any circumstances.
Section 2.6. Interest on Loans. (a) Subject to the provisions of
Section
2.7, the Loans comprising each ABR Borrowing, including each
Swingline Loan,
shall bear interest (computed on the basis of the actual number of
days elapsed
over a year of 365 or 366 days, as the case may be, when the
Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360
days at all
other times and calculated from and including the date of such
Borrowing to but
excluding the date of repayment thereof) at a rate per annum equal
to the
Alternate Base Rate plus the Applicable Percentage in effect from
time to time.
(b)
Subject to the provisions of Section 2.7, the Loans comprising
each
Eurodollar Borrowing shall bear interest (computed on the basis of
the actual
number of days elapsed over a year of 360 days) at a rate per annum
equal to the
Eurodollar Rate for the Interest Period in effect for such
Borrowing plus the
Applicable Percentage in effect from time to time.
(c)
In the event that at the close of business on any day after
December
20, 2004 the Facilities are rated less than B1 by Moody's and B+ by
S&P, each
Applicable Percentage set forth in the Pricing Grid and in the
definition of
"Applicable Percentage" shall increase by .25% per annum for such
day. Each
Applicable Percentage set forth in the Pricing Grid and in the
definition of
"Applicable Percentage" shall increase by .25% for each day on
which the
Facilities are not rated by each of Moody's and S&P. Each
Applicable Percentage
set forth in the Pricing Grid and in the definition of "Applicable
Percentage"
shall not increase by more than .25% per annum pursuant to this
paragraph (c).
(d)
Interest on each Loan shall be payable to the applicable
Lenders,
through the Administrative Agent, on the Interest Payment Dates
applicable to
such Loan except as otherwise provided in this Agreement. The
applicable
Alternate Base Rate or Eurodollar Rate for each Interest Period or
day within an
Interest Period, as the case may be, shall be determined by the
Administrative
Agent, and such determination shall be conclusive absent manifest
error.
Section 2.7. Default Interest. Any amount (whether of principal,
interest,
Fees or otherwise) not paid when due hereunder or under any other
Loan Document
shall bear interest, to the extent permitted by law (after as well
as before
judgment), payable on demand, (a) in the case of principal, at the
rate
otherwise applicable thereto pursuant to Section 2.6 plus 2.00% per
annum and
(b) in all other cases, at a rate per annum (computed on the basis
of the actual
number of days elapsed over a year of 365 or 366 days, as the case
may be, when
determined by reference to the Prime Rate and over a year of 360
days at all
other times) equal to the rate that would be applicable to an ABR
Term Loan plus
2.00% per annum.
Section 2.8. Alternate Rate of Interest. In the event, and on
each
occasion, that on the day two Business Days prior to the
commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent
shall have
determined that dollar deposits in the principal amounts of the
Loans comprising
such Borrowing are not generally available in the London interbank
market, or
that the rates at which such dollar deposits are being offered will
not
adequately and fairly reflect the cost to a majority in interest of
the Lenders
participating or to participate in such Loan of making or
maintaining its
Eurodollar Loan during such Interest Period, or that reasonable
means do not
exist for ascertaining the Eurodollar Rate, the Administrative
Agent shall, as
soon as practicable thereafter, give written or fax notice of such
determination
to the Borrower and the Lenders. In the event of any such
determination, until
the Administrative Agent shall have advised the Borrower and the
Lenders that
the circumstances giving rise to such notice no longer exist, any
request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.3 or 2.10
shall be
deemed to be a request for an ABR Borrowing. Each determination by
the
Administrative Agent under this Section 2.8 shall be conclusive
absent manifest
error.
<PAGE>
32
Section 2.9. Termination and Reduction of Commitments. (a) The Term
Loan
Commitments shall automatically terminate at 5:00 p.m., New York
City time, on
the Closing Date. The Revolving Credit Commitments, the Swingline
Commitment and
the L/C Commitment shall automatically terminate on the Revolving
Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments
shall
automatically terminate at 5:00 p.m., New York City time, on
December 31, 2004,
if the initial Credit Event shall not have occurred by such
time.
(b)
Upon at least three Business Days' prior irrevocable written or
fax
notice (or telephonic notice promptly confirmed by written notice)
to the
Administrative Agent, the Borrower may at any time in whole
permanently
terminate, or from time to time in part permanently reduce, the
Term Loan
Commitments or the Revolving Credit Commitments; provided, however,
that (i)
each partial reduction of the Term Loan Commitments or the
Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and in a
minimum
amount of $1,000,000 and (ii) the Total Revolving Credit Commitment
shall not be
reduced to an amount that is less than the Aggregate Revolving
Credit Exposure
at the time.
(c)
Each reduction in the Term Loan Commitments or the Revolving
Credit
Commitments hereunder shall be made ratably among the Lenders in
accordance with
their respective applicable Commitments. The Borrower shall pay to
the
Administrative Agent for the account of the applicable Lenders, on
the date of
termination of the Commitments of any Class, all accrued and unpaid
Commitment
Fees relating to such Class to but excluding the date of such
termination.
Section 2.10. Conversion and Continuation of Borrowings. The
Borrower shall
have the right at any time upon prior irrevocable notice to the
Administrative
Agent (a) not later than 12:00 (noon), New York City time, one
Business Day
prior to conversion, to convert any Eurodollar Borrowing
denominated in Dollars
into an ABR Borrowing, (b) not later than 12:00 (noon), New York
City time,
three Business Days prior to conversion or continuation, to convert
any ABR
Borrowing into a Eurodollar Borrowing denominated in Dollars or to
continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional
Interest
Period, and (c) not later than 12:00 (noon), New York City Time,
three Business
Days prior to conversion, to convert the Interest Period with
respect to any
Eurodollar Borrowing to another permissible Interest Period,
subject in each
case to the following:
(i) until the Administrative Agent shall have notified the
Borrower
that
the primary syndication of the Commitments has been completed
(which
notice shall be given as promptly as practicable and, in any event,
within
seven (7) days after the Closing Date), no ABR Borrowing may be
converted
into
a Eurodollar Borrowing; provided, that after such seven-day (or
shorter) period, each ABR
Borrowing converted to a Eurodollar Borrowing
shall have an initial Interest Period of thirty (30) days;
(ii) each conversion or continuation shall be made pro rata among
the
Lenders in accordance with the respective principal amounts of the
Loans
comprising the converted or continued Borrowing;
(iii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing
shall satisfy the limitations specified in Sections 2.2(a) and
2.2(b)
regarding the principal amount and maximum number of Borrowings of
the
relevant Type;
(iv) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender
the new
Loan
of such Lender resulting from such conversion and reducing the
Loan
(or
portion thereof) of such Lender being converted by an
<PAGE>
33
equivalent principal amount; accrued interest on any Eurodollar
Loan (or
portion thereof) being converted shall be paid by the Borrower at
the time
of
conversion;
(v) if any Eurodollar Borrowing is converted at a time other than
the
end
of the Interest Period applicable thereto, the Borrower shall pay,
upon
demand, any amounts due to the Lenders pursuant to Section 2.15;
and
(vi) after the occurrence and during the continuance of a
Default
specified in clause (b) or (c) of Article VII (without regard to
any
applicable grace period in such clause (c)), no outstanding
Loan
denominated in Dollars may be converted into, or continued as, a
Eurodollar
Loan.
Each
notice pursuant to this Section 2.10 shall be irrevocable and
shall
refer to this Agreement and specify (i) the identity, currency
denomination and
amount of the Borrowing that the Borrower requests be converted or
continued,
(ii) whether such Borrowing is to be converted to or continued as a
Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the
date of such conversion (which shall be a Business Day) and (iv) if
such
Borrowing is to be converted to or continued as a Eurodollar
Borrowing, the
Interest Period with respect thereto. If no Interest Period is
specified in any
such notice with respect to any conversion to or continuation as a
Eurodollar
Borrowing, the Borrower shall be deemed to have selected an
Interest Period of
one month's duration. The Administrative Agent shall advise the
Lenders of any
notice given pursuant to this Section 2.10 and of each Lender's
portion of any
converted or continued Borrowing. If the Borrower shall not have
given notice in
accordance with this Section 2.10 to continue any Eurodollar
Borrowing into a
subsequent Interest Period (and shall not otherwise have given
notice in
accordance with this Section 2.10 to convert such Borrowing), such
Borrowing
shall, at the end of the Interest Period applicable thereto (unless
repaid
pursuant to the terms hereof), automatically be converted into an
ABR Borrowing.
Section 2.11. Repayment of Term Loan Borrowings. (a) The Borrower
shall pay
to the applicable Lenders, through the Administrative Agent, on the
dates set
forth below, or if any such date is not a Business Day, on the next
preceding
Business Day (each such date being called a "Repayment Date"), a
principal
amount of the Term Loans (as adjusted from time to time pursuant to
Sections
2.11(c), 2.12, 2.13(e) and 2.23(d)) equal to such Lender's Term
Percentage,
multiplied by a percentage of the original aggregate principal
amount of the
Term Loans, as set forth below (together in each case with accrued
and unpaid
interest on the principal amount to be paid to but excluding the
date of such
payment):
<TABLE>
<CAPTION>
Repayment Date
Amount
--------------
------
<S>
<C>
March 31, 2005
0.25%
June 30, 2005
0.25%
September 30, 2005
0.25%
December 31, 2005
0.25%
March 31, 2006
0.25%
June 30, 2006
0.25%
September 30, 2006
0.25%
December 31, 2006
0.25%
March 31, 2007
0.25%
June 30, 2007
0.25%
September 30, 2007
0.25%
December 31, 2007
0.25%
March 31, 2008
0.25%
June 30, 2008
0.25%
</TABLE>
<PAGE>
34
<TABLE>
<CAPTION>
Repayment Date
Amount
--------------
------
<S>
<C>
September 30, 2008
0.25%
December 31, 2008
0.25%
March 31, 2009
0.25%
June 30, 2008
0.25%
September 30, 2009
0.25%
December 31, 2009
0.25%
March 31, 2010
0.25%
June 30, 2010
0.25%
September 30, 2010
0.25%
Term Loan Maturity Date 94.25%
</TABLE>
(b)
The Borrower shall pay to the Administrative Agent, for the account
of
the Lenders, on each Incremental Term Loan Repayment Date, a
principal amount of
the Other Term Loans (as adjusted from time to time pursuant to
Sections
2.11(c), 2.12 and 2.13(e)) equal to the amount set forth for such
date in the
Incremental Term Loan Assumption Agreement, together in each case
with accrued
and unpaid interest on the principal amount to be paid to but
excluding the date
of such payment.
(c)
In the event and on each occasion that any Term Loan Commitment
(other
than an Incremental Term Loan Commitment) shall be reduced or shall
expire or
terminate other than as a result of the making of a Term Loan, the
installments
payable on each Repayment Date shall be reduced pro rata by an
aggregate amount
equal to the amount of such reduction, expiration or
termination.
(d)
To the extent not previously paid, all Term Loans shall be due
and
payable on the Term Loan Maturity Date and all Incremental Term
Loans shall be
due and payable on the Incremental Term Loan Maturity Date,
together in each
case with accrued and unpaid interest on the principal amount to be
paid to but
excluding the date of payment.
(e)
All repayments pursuant to this Section 2.11 shall be subject
to
Section 2.15, but shall otherwise be without premium or
penalty.
Section 2.12. Optional Prepayments. (a) The Borrower shall have the
right
at any time and from time to time to prepay any Borrowing, in whole
or in part,
upon at least three Business Days' prior written or fax notice (or
telephonic
notice promptly confirmed by written notice) in the case of
Eurodollar Loans, or
written or fax notice (or telephonic notice promptly confirmed by
written
notice) at least one Business Day prior to the date of prepayment
in the case of
ABR Loans, to the Administrative Agent before 12:00 (noon), New
York City Time;
provided, however, that each partial prepayment of Loans
denominated in Dollars
shall be in an amount that is an integral multiple of $100,000 and
not less than
$500,000.
(b)
Optional prepayments of Term Loans shall be allocated ratably
between
the Term Loans and the Other Term Loans, if any, and shall be
applied first, in
chronological order to the installments of principal in respect of
the Term
Loans and Other Term Loans scheduled to be paid within 12 months
after such
optional prepayment and second, pro rata against the remaining
scheduled
installments of principal due in respect of the Term Loans and
Other Term Loans.
(c)
Each notice of prepayment shall specify the prepayment date and
the
principal amount and currency denomination of each Borrowing (or
portion
thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to
prepay such Borrowing by the amount stated therein on the date
stated therein.
All prepayments under this Section 2.12 shall be subject to Section
2.15 but
otherwise without premium or penalty. All prepayments under this
Section 2.12
shall be accompanied by accrued and
<PAGE>
35
unpaid interest on the principal amount to be prepaid to but
excluding the date
of payment; provided, however, that in the case of a prepayment of
an ABR
Revolving Loan or a Swingline Loan that is not made in connection
with a
termination of the Revolving Credit Commitments, the accrued and
unpaid interest
on the principal amount prepaid shall be payable on the next
scheduled Interest
Payment Date with respect to such ABR Revolving Loan or Swingline
Loan.
Section 2.13. Mandatory Prepayments. (a) In the event of any
termination of
all the Revolving Credit Commitments, the Borrower shall, on the
date of such
termination, repay or prepay all its outstanding Revolving Credit
Borrowings and
all outstanding Swingline Loans and replace all outstanding Letters
of Credit.
If as a result of any partial reduction of the Revolving Credit
Commitments the
Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit
Commitment after giving effect thereto, then the Borrower shall, on
the date of
such reduction, repay or prepay Revolving Credit Borrowings or
Swingline Loans
(or a combination thereof) and/or replace outstanding Letters of
Credit in an
amount sufficient to eliminate such excess.
(b)
Not later than the third Business Day following the completion of
any
Asset Sale or Recovery Event, the Borrower shall apply 100% of the
Net Cash
Proceeds received with respect thereto to prepay outstanding Term
Loans and
Other Term Loans in accordance with Section 2.13(f).
(c)
No later than the earlier of (i) 105 days after the end of each
fiscal
year of the Borrower, commencing with the fiscal year ending on
December 31,
2006, and (ii) the date on which the financial statements with
respect to such
period are delivered pursuant to Section 5.4(a), the Borrower shall
prepay
outstanding Term Loans and Other Term Loans in accordance with
Section 2.13(f)
in an aggregate principal amount equal to 50% of Excess Cash Flow
for the fiscal
year then ended; provided, however, that in the event the Leverage
Ratio at the
end of such fiscal year was equal to or less than 4.00 to 1.00, no
such
prepayment shall be required.
(d)
In the event that any Loan Party or any subsidiary of a Loan
Party
shall receive Net Cash Proceeds from the issuance or other
disposition of
Indebtedness for money borrowed (or similar transaction evidenced
by bonds,
debentures, notes or similar instruments) of any Loan Party or any
subsidiary of
a Loan Party (other than Indebtedness for money borrowed (or
similar transaction
evidenced by bonds, debentures, notes or similar instruments)
permitted pursuant
to Section 6.1, except for Indebtedness incurred under Section
6.1(j), for which
a mandatory prepayment shall be required), the Borrower shall,
substantially
simultaneously with (and in any event not later than the third
Business Day next
following) the receipt of such Net Cash Proceeds by such Loan Party
or such
subsidiary, apply an amount equal to 100% of such Net Cash Proceeds
to prepay
outstanding Term Loans and Other Term Loans in accordance with
Section 2.13(f).
(e)
In the event that Holdings or the Borrower shall receive Net
Cash
Proceeds from the issuance or sale of Equity Interests of Holdings
or the
Borrower (other than pursuant to an Excluded Equity Issuance), the
Borrower
shall, substantially simultaneously with (and in any event not
later than the
third Business Day next following) the receipt of such Net Cash
Proceeds by
Holdings or the Borrower, apply an amount equal to 50% of such Net
Cash Proceeds
to prepay outstanding Term Loans and Other Term Loans in accordance
with Section
2.13(f); provided, however, that in the event the Leverage Ratio at
the end of
the most recently ended fiscal quarter was equal to or less than
4.00 to 1.00,
no such prepayment shall be required.
(f)
Mandatory prepayments of outstanding Term Loans under this
Agreement
shall be allocated ratably between the Term Loans and Other Term
Loans, if any,
and shall be applied first, in chronological order to the
installments of
principal in respect of the Term Loans and Other Term Loans
scheduled to be paid
within 12 months after such mandatory prepayment and second, pro
rata against
the
<PAGE>
36
remaining scheduled installments of principal due in respect of the
Term Loans
and Other Term Loans under Section 2.11.
(g)
The Borrower shall deliver to the Administrative Agent, at the time
of
each prepayment required under this Section 2.13, (i) a certificate
signed by a
Financial Officer of the Borrower setting forth in reasonable
detail the
calculation of the amount of such prepayment and (ii) to the extent
practicable,
at least three days prior written notice of such prepayment. Each
notice of
prepayment shall specify the prepayment date, the Type of each Loan
being
prepaid and the principal amount of each Loan (or portion thereof)
to be
prepaid. All prepayments of Borrowings under this Section 2.13
shall be subject
to Section 2.15, but shall otherwise be without premium or
penalty.
Section 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if any
Change in Law
shall impose, modify or deem applicable any reserve, special
deposit or similar
requirement against assets of, deposits with or for the account of
or credit
extended by any Lender or the Issuing Bank (except any such reserve
requirement
which is reflected in the Eurodollar Rate) or shall impose on such
Lender or the
Issuing Bank or the London interbank market any other condition
affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or
participation therein, and the result of any of the foregoing shall
be to
increase the cost to such Lender or the Issuing Bank of making or
maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing
or maintaining
any Letter of Credit or purchasing or maintaining a participation
therein or to
reduce the amount of any sum received or receivable by such Lender
or the
Issuing Bank hereunder (whether of principal, interest or
otherwise), in each
case, by an amount deemed by such Lender or the Issuing Bank to be
material,
then the Borrower will pay to such Lender or the Issuing Bank, as
the case may
be, upon demand such additional amount or amounts as will
compensate such Lender
or the Issuing Bank, as the case may be, for such additional costs
incurred or
reduction suffered.
(b)
If any Lender or the Issuing Bank shall have determined that
any
Change in Law regarding capital adequacy has or would have the
effect of
reducing the rate of return on such Lender's or the Issuing Bank's
capital or on
the capital of such Lender's or the Issuing Bank's holding company,
if any, as a
consequence of this Agreement or the Loans made or participations
in Letters of
Credit purchased by such Lender pursuant hereto or the Letters of
Credit issued
by the Issuing Bank pursuant hereto to a level below that which
such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding
company could
have achieved but for such Change in Law (taking into consideration
such
Lender's or the Issuing Bank's policies and the policies of such
Lender's or the
Issuing Bank's holding company with respect to capital adequacy) by
an amount
deemed by such Lender or the Issuing Bank to be material, then from
time to time
the Borrower shall pay to such Lender or the Issuing Bank, as the
case may be,
such additional amount or amounts as will compensate such Lender or
the Issuing
Bank or such Lender's or the Issuing Bank's holding company for any
such
reduction suffered.
(c)
A certificate of a Lender or the Issuing Bank setting forth the
amount
or amounts necessary to compensate such Lender or the Issuing Bank
or its
holding company, as applicable, as specified in paragraph (a) or
(b) above shall
be delivered to the Borrower and shall be conclusive absent
manifest error. The
Borrower shall pay such Lender or the Issuing Bank the amount shown
as due on
any such certificate delivered by it within 10 days after its
receipt of the
same.
(d)
Failure or delay on the part of any Lender or the Issuing Bank
to
demand compensation for any increased costs or reduction in amounts
received or
receivable or reduction in return on capital shall not constitute a
waiver of
such Lender's or the Issuing Bank's right to demand such
compensation; provided,
that the Borrower shall not be under any obligation to compensate
any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to
increased
costs or reductions with respect to any period prior to the date
that is 180
days prior to such request if such Lender or the Issuing Bank knew
or
<PAGE>
37
could reasonably have been expected to know of the circumstances
giving rise to
such increased costs or reductions and of the fact that such
circumstances would
result in a claim for increased compensation by reason of such
increased costs
or reductions; provided, further, that the foregoing limitation
shall not apply
to any increased costs or reductions arising out of the retroactive
application
of any Change in Law within such 180-day period. The protection of
this Section
shall be available to each Lender and the Issuing Bank regardless
of any
possible contention of the invalidity or inapplicability of the
Change in Law
that shall have occurred or been imposed.
Section 2.15. Indemnity. The Borrower shall indemnify each Lender
against
any loss or expense that such Lender may sustain or incur as a
consequence of
(a) any event, other than a default by such Lender in the
performance of its
obligations hereunder, which results in (i) such Lender receiving
or being
deemed to receive any amount on account of the principal of any
Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii)
the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the
Interest Period
with respect to any Eurodollar Loan, in each case other than on the
last day of
the Interest Period in effect therefor, or (iii) any Eurodollar
Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant
to a
conversion or continuation under Section 2.10) not being made after
notice of
such Loan shall have been given by the Borrower hereunder (any of
the events
referred to in this clause (a) being called a "Breakage Event") or
(b) any
default in the making of any payment or prepayment required to be
made
hereunder. In the case of any Breakage Event, such loss shall
include an amount
equal to the excess, as reasonably determined by such Lender, of
(i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such
Breakage
Event for the period from the date of such Breakage Event to the
last day of the
Interest Period in effect (or that would have been in effect) for
such Loan over
(ii) the amount of interest likely to be realized by such Lender in
redeploying
the funds released or not utilized by reason of such Breakage Event
for such
period, but such loss shall not, in any event, include any lost
profit or loss
of applicable margin. A certificate of any Lender setting forth any
amount or
amounts which such Lender is entitled to receive pursuant to this
Section 2.15
shall be delivered to the Borrower and shall be conclusive absent
manifest
error.
Section 2.16. Pro Rata Treatment. Each Borrowing, each payment
or
prepayment of principal of any Borrowing, each payment of interest
on the Loans,
each payment of the Commitment Fees or the L/C Participation Fees,
each
reduction of the Term Loan Commitments or the Revolving Credit
Commitments and
each conversion of any Borrowing to or continuation of any
Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders
in
accordance with their respective applicable Commitments (or, if
such Commitments
shall have expired or been terminated, in accordance with the
respective
principal amounts of their outstanding Loans or participations in
L/C
Disbursements, as applicable). Each Lender agrees that in computing
such
Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent
may, in its discretion, round each Lender's percentage of such
Borrowing to the
next higher or lower whole dollar amount.
Section 2.17. Sharing of Setoffs. Each Lender agrees that if it
shall,
through the exercise of a right of banker's lien, setoff or
counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured
claim under
Section 506 of Title 11 of the United States Code or other security
or interest
arising from, or in lieu of, such secured claim, received by such
Lender under
any applicable bankruptcy, insolvency or other similar law or
otherwise, or by
any other means, obtain payment (voluntary or involuntary) in
respect of any
Loan or L/C Disbursement as a result of which the unpaid portion of
its Loans
and participations in L/C Disbursements shall be proportionately
less than the
unpaid portion of the Loans and participations in L/C Disbursements
of any other
Lender, it shall be deemed simultaneously to have purchased from
such other
Lender at face value, and shall promptly pay to such other Lender
the purchase
price for, a participation in the Loans and L/C Exposure of such
other Lender,
so that the aggregate unpaid amount of the Loans and L/C Exposure
and
participations in Loans and L/C Exposure held by each Lender shall
be in the
same proportion to the aggregate unpaid amount of all Loans and L/C
Exposure
then outstanding as
<PAGE>
38
the amount of its Loans and L/C Exposure prior to such exercise of
banker's
lien, setoff or counterclaim or other event was to the amount of
all Loans and
L/C Exposure outstanding prior to such exercise of banker's lien,
setoff or
counterclaim or other event; provided, however, that if any such
purchase or
purchases or adjustments shall be made pursuant to this Section
2.17 and the
payment giving rise thereto shall thereafter be recovered, such
purchase or
purchases or adjustments shall be rescinded to the extent of such
recovery and
the purchase price or prices or adjustment restored without
interest. The
Borrower and Holdings expressly consent to the foregoing
arrangements and agree
that any Lender holding a participation in a Loan or L/C
Disbursement deemed to
have been so purchased may exercise any and all rights of banker's
lien, setoff
or counterclaim with respect to any and all moneys owing by the
Borrower and
Holdings to such Lender by reason thereof as fully as if such
Lender had made a
Loan directly to the Borrower in the amount of such
participation.
Section 2.18. Payments. (a) The Borrower shall make each payment
(including
principal of or interest on any Borrowing or any L/C Disbursement
or any Fees or
other amounts) hereunder and under any other Loan Document not
later than 12:00
(noon), New York City Time, on the date when due in Dollars and in
immediately
available funds, without setoff, defense or counterclaim. Each such
payment
(other than (i) Issuing Bank Fees, which shall be paid directly to
the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which
shall be paid
directly to the Swingline Lender except as otherwise provided in
Section
2.21(e)) shall be made to the Administrative Agent at the Funding
Office, or at
such other location as the Administrative Agent shall notify the
Borrower from
time to time in accordance with Section 9.1. The Administrative
Agent shall
distribute any such payments received by it for the account of any
other person
to the appropriate recipient promptly following receipt
thereof.
(b)
Except as otherwise expressly provided herein, whenever any
payment
(including principal of or interest on any Borrowing or any Fees or
other
amounts) hereunder or under any other Loan Document shall become
due, or
otherwise would occur, on a day that is not a Business Day, such
payment may be
made on the next succeeding Business Day, and such extension of
time shall in
such case be included in the computation of interest or Fees, if
applicable.
Section 2.19. Taxes. (a) Any and all payments by or on account of
any
obligation of the Borrower or any Loan Party hereunder or under any
other Loan
Document shall be made free and clear of and without deduction for
any
Indemnified Taxes or Other Taxes; provided, that if the Borrower or
any Loan
Party shall be required to deduct any Indemnified Taxes or Other
Taxes from such
payments, then (i) the sum payable shall be increased as necessary
so that after
making all required deductions (including deductions applicable to
additional
sums payable under this Section) the Administrative Agent or such
Lender (as the
case may be) receives an amount equal to the sum it would have
received had no
such deductions been made, (ii) the Borrower or such Loan Party
shall make such
deductions and (iii) the Borrower or such Loan Party shall pay the
full amount
deducted to the relevant Governmental Authority in accordance with
applicable
law.
(b)
In addition, the Borrower shall pay any Other Taxes to the
relevant
Governmental Authority in accordance with applicable law.
(c)
The Borrower shall indemnify the Administrative Agent and each
Lender,
within 10 days after written demand therefor, for the full amount
of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such
Lender, as the case may be, on or with respect to any payment by or
on account
of any obligation of the Borrower or any Loan Party hereunder or
under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed
or asserted on
or attributable to amounts payable under this Section) and any
penalties,
interest and reasonable expenses arising therefrom or with respect
thereto
(other than penalties or interest attributable to (i) a failure or
delay by the
Administrative Agent or such Lender, as applicable, in making such
written
demand to the Borrower or (ii) the gross
<PAGE>
39
negligence or willful misconduct of the Administrative Agent or
such Lender, as
applicable), whether or not such Indemnified Taxes or Other Taxes
were correctly
or legally imposed or asserted by the relevant Governmental
Authority. A
certificate as to the amount of such payment or liability delivered
to the
Borrower by a Lender, or by the Administrative Agent on its behalf
or on behalf
of a Lender, shall be conclusive absent manifest error.
(d)
As soon as practicable after any payment of Indemnified Taxes or
Other
Taxes by the Borrower or any other Loan Party to a Governmental
Authority, the
Borrower shall deliver to the Administrative Agent the original or
a certified
copy of a receipt issued by such Governmental Authority evidencing
such payment,
a copy of the return reporting such payment or other evidence of
such payment
reasonably satisfactory to the Administrative Agent.
(e)
Any Foreign Lender that is entitled to an exemption from or
reduction
of withholding tax under the law of the jurisdiction in which the
Borrower is
located, or any treaty to which such jurisdiction is a party, with
respect to
payments under this Agreement shall deliver to the Borrower (with a
copy to the
Administrative Agent), at the time or times prescribed by
applicable law, such
properly completed and executed documentation prescribed by
applicable law or
reasonably requested by the Borrower as will permit such payments
to be made
without withholding or at a reduced rate.
Section 2.20. Assignment of Commitments Under Certain
Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or the Issuing Bank
delivers a
certificate requesting compensation pursuant to Section 2.14, (ii)
the Borrower
is required to pay any additional amount to any Lender or the
Issuing Bank or
any Governmental Authority on account of any Lender or the Issuing
Bank pursuant
to Section 2.19, (iii) any Lender becomes a Defaulting Lender or
(iv) any Lender
refuses to consent to any amendment, waiver or other modification
of any Loan
Document requested by the Borrower that requires the consent of a
greater
percentage of the Lenders than the Required Lenders and such
amendment, waiver
or other modification is consented to by the Required Lenders, the
Borrower may,
at its sole expense and effort (including with respect to the
processing and
recordation fee referred to in Section 9.4(b)), upon notice to such
Lender or
the Issuing Bank and the Administrative Agent, require such Lender
or the
Issuing Bank to transfer and assign, without recourse,
representation or
warranty, except as to warranty as to its ownership of the assigned
obligations
(in accordance with and subject to the restrictions contained in
Section 9.4),
all of its interests, rights and obligations under this Agreement
to an assignee
that shall assume such assigned obligations and, with respect to
clause (iv)
above, shall consent to such requested amendment, waiver or other
modification
of any Loan Document (which assignee may be another Lender, if a
Lender accepts
such assignment); provided that (x) such assignment shall not
conflict with any
law, rule or regulation or order of any court or other Governmental
Authority
having jurisdiction, (y) the Borrower shall have received the prior
written
consent of the Administrative Agent (and, if a Revolving Credit
Commitment is
being assigned, of the Issuing Bank and the Swingline Lender),
which consent
shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall
have paid to the affected Lender or the Issuing Bank in immediately
available
funds an amount equal to the sum of the principal of and interest
accrued to the
date of such payment on the outstanding Loans or L/C Disbursements
of such
Lender or the Issuing Bank plus all Fees and other amounts accrued
for the
account of such Lender or the Issuing Bank hereunder (including any
amounts
under Section 2.14 and Section 2.15); provided, further, that, if
prior to any
such transfer and assignment the circumstances or event that
resulted in such
Lender's or the Issuing Bank's claim for compensation under Section
2.14 or the
amounts paid pursuant to Section 2.19, as the case may be, cease to
cause such
Lender or the Issuing Bank to suffer increased costs or reductions
in amounts
received or receivable or reduction in return on capital or cease
to result in
amounts being payable under Section 2.19, as the case may be
(including as a
result of any action taken by such Lender or the Issuing Bank
pursuant to
paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its
right to claim further compensation under Section 2.14 in respect
of such
circumstances or event or shall waive its right to further payments
under
Section 2.19 in respect of such circumstances or event
<PAGE>
40
or shall consent to the proposed amendment, waiver, consent or
other
modification, as the case may be, then such Lender or the Issuing
Bank shall not
thereafter be required to make any such transfer and assignment
hereunder.
(b)
If (i) any Lender or the Issuing Bank shall request compensation
under
Section 2.14 or (ii) the Borrower is required to pay any additional
amount to
any Lender or the Issuing Bank or any Governmental Authority on
account of any
Lender or the Issuing Bank, pursuant to Section 2.19, then such
Lender or the
Issuing Bank shall use reasonable efforts (which shall not require
such Lender
or the Issuing Bank to incur an unreimbursed loss or unreimbursed
cost or
expense or otherwise take any action inconsistent with its internal
policies or
legal or regulatory restrictions or suffer any disadvantage or
burden deemed by
it to be significant) (x) to file any certificate or document
reasonably
requested in writing by the Borrower or (y) to assign its rights
and delegate
and transfer its obligations hereunder to another of its offices,
branches or
Affiliates, if such filing or assignment would reduce its claims
for
compensation under Section 2.14 or would reduce amounts payable
pursuant to
Section 2.19, as the case may be, in the future. The Borrower
hereby agrees to
pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank
in connection with any such filing or assignment, delegation and
transfer.
Section 2.21. Swingline Loans. (a) Swingline Commitment. Subject to
the
terms and conditions and relying upon the representations and
warranties herein
set forth, the Swingline Lender agrees to make loans to the
Borrower at any time
and from time to time on and after the Closing Date and until the
earlier of the
Revolving Credit Maturity Date and the termination of the Revolving
Credit
Commitments in accordance with the terms hereof, in an aggregate
principal
amount at any time outstanding that will not result in (i) the
aggregate
principal amount of all Swingline Loans exceeding $5,000,000 in the
aggregate or
(ii) the Aggregate Revolving Credit Exposure, after giving effect
to any
Swingline Loan, exceeding the Total Revolving Credit Commitment.
Each Swingline
Loan shall be in a principal amount that is an integral multiple of
$100,000 and
not less than $100,000. The Swingline Commitment may be terminated
or reduced
from time to time as provided herein. Within the foregoing limits,
the Borrower
may borrow, pay or prepay and reborrow Swingline Loans hereunder,
subject to the
terms, conditions and limitations set forth herein.
(b)
Swingline Loan Borrowing Procedure. The Borrower shall notify
the
Swingline Lender by fax, or by telephone (confirmed by fax), not
later than
12:00 (noon), New York City time, on the day of a proposed
Swingline Loan. Such
notice shall be delivered on a Business Day, shall be irrevocable
and shall
refer to this Agreement and shall specify the requested date (which
shall be a
Business Day) and amount of such Swingline Loan and the wire
transfer
instructions for the account of the Borrower to which the proceeds
of such
Swingline Loan should be transferred. The Swingline Lender shall
promptly make
each Swingline Loan by wire transfer to the account specified by
the Borrower in
such request.
(c)
Prepayment. The Borrower shall have the right at any time and
from
time to time to prepay any Swingline Loan, in whole or in part,
upon giving
written or fax notice (or telephonic notice promptly confirmed by
written
notice) to the Swingline Lender and to the Administrative Agent
before 12:00
(noon), New York City time on the date of prepayment at the
Swingline Lender's
address for notices specified in Section 9.1.
(d)
Interest. Each Swingline Loan shall be an ABR Loan and, subject
to
the provisions of Section 2.7, shall bear interest at the rate
provided for the
ABR Revolving Loans as provided in Section 2.6(a).
(e)
Participations. The Swingline Lender may by written notice given
to
the Administrative Agent not later than 11:00 a.m., New York City
time, on any
Business Day require the Revolving Credit Lenders to acquire
participations on
such Business Day in all or a portion of the Swingline Loans
<PAGE>
41
outstanding. Such notice shall specify the aggregate amount of
Swingline Loans
in which the Revolving Credit Lenders will participate. The
Administrative Agent
will, promptly upon receipt of such notice, give notice to each
Revolving Credit
Lender, specifying in such notice such Lender's Pro Rata Percentage
of such
Swingline Loan or Loans. In furtherance of the foregoing, each
Revolving Credit
Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as
provided above, to pay to the Administrative Agent, for the account
of the
Swingline Lender, such Revolving Credit Lender's Pro Rata
Percentage of such
Swingline Loan or Loans. Each Revolving Credit Lender acknowledges
and agrees
that its obligation to acquire participations in Swingline Loans
pursuant to
this paragraph is absolute and unconditional and shall not be
affected by any
circumstance whatsoever, including the occurrence and continuance
of a Default
or an Event of Default, and that each such payment shall be made
without any
offset, abatement, withholding or reduction whatsoever. Each
Revolving Credit
Lender shall comply with its obligation under this paragraph by
wire transfer of
immediately available funds, in the same manner as provided in
Section 2.2(c)
with respect to Loans made by such Lender (and Section 2.2(c) shall
apply,
mutatis mutandis, to the payment obligations of the Lenders) and
the
Administrative Agent shall promptly pay to the Swingline Lender the
amounts so
received by it from the Lenders. The Administrative Agent shall
notify the
Borrower of any participations in any Swingline Loan acquired
pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan
shall be
made to the Administrative Agent and not to the Swingline Lender.
Any amounts
received by the Swingline Lender from the Borrower (or other party
on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the
Swingline
Lender of the proceeds of a sale of participations therein shall be
promptly
remitted to the Administrative Agent; any such amounts received by
the
Administrative Agent shall be promptly remitted by the
Administrative Agent to
the Lenders that shall have made their payments pursuant to this
paragraph and
to the Swingline Lender, as their interests may appear. The
purchase of
participations in a Swingline Loan pursuant to this paragraph shall
not relieve
the Borrower (or other party liable for obligations of the
Borrower) of any
default in the payment thereof.
Section 2.22. Letters of Credit. (a) General. The Borrower may
request the
issuance of a Letter of Credit denominated in Dollars for its own
account or for
the account of any Subsidiary, in a form reasonably acceptable to
the
Administrative Agent and the Issuing Bank, at any time and from
time to time
while the Revolving Credit Commitments remain in effect. This
Section shall not
be construed to impose an obligation upon the Issuing Bank to issue
any Letter
of Credit that is inconsistent with the terms and conditions of
this Agreement.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit
(or to amend,
renew or extend an existing Letter of Credit), the Borrower shall
hand deliver
or fax to the Issuing Bank and the Administrative Agent (reasonably
in advance
of the requested date of issuance, amendment, renewal or extension)
a notice
requesting the issuance of a Letter of Credit, or identifying the
Letter of
Credit to be amended, renewed or extended, the date of issuance,
amendment,
renewal or extension, the date on which such Letter of Credit is to
expire
(which shall comply with paragraph (c) below), the amount of such
Letter of
Credit, the name and address of the beneficiary thereof and such
other
information as shall be necessary to prepare such Letter of Credit.
The Issuing
Bank shall promptly (i) notify the Administrative Agent in writing
of the amount
and expiry date of each Letter of Credit issued by it and (ii)
provide a copy of
each such Letter of Credit (and any amendments, renewals or
extensions thereof)
to the Administrative Agent. A Letter of Credit shall be issued,
amended,
renewed or extended only if, and upon issuance, amendment, renewal
or extension
of each Letter of Credit the Borrower shall be deemed to represent
and warrant
that, after giving effect to such issuance, amendment, renewal or
extension (i)
the L/C Exposure shall not exceed $10,000,000 and (ii) the
Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit
Commitment. The
Borrower shall be deemed to have complied with the notification and
other
information delivery requirements set forth in this Section 2.22(b)
in respect
of the Letter of Credit in the form attached hereto
<PAGE>
42
as Schedule 2.22(b), which Letter of Credit shall be deemed to be
issued as a
Letter of Credit hereunder on the Closing Date.
(c)
Expiration Date. Each Letter of Credit shall expire at the close
of
business on the earlier of the date one year after the date of the
issuance of
such Letter of Credit and the date that is five Business Days prior
to the
Revolving Credit Maturity Date, unless such Letter of Credit
expires by its
terms on an earlier date; provided, that a Letter of Credit may,
upon the
request of the Borrower, include a provision whereby such Letter of
Credit shall
be renewed automatically for additional consecutive periods of 12
months or less
(but not beyond the date that is five Business Days prior to the
Revolving
Credit Maturity Date) unless the Issuing Bank notifies the
beneficiary thereof
at least 30 days prior to the then-applicable expiration date that
such Letter
of Credit will not be renewed.
(d)
Participations. By the issuance of a Letter of Credit and without
any
further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender
hereby
acquires from the Issuing Bank, a participation in such Letter of
Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount
available to be
drawn under such Letter of Credit, effective upon the issuance of
such Letter of
Credit. In consideration and in furtherance of the foregoing, each
Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay
to the
Administrative Agent, for the account of the Issuing Bank, such
Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank
and not
reimbursed by the Borrower (or, if applicable, another party
pursuant to its
obligations under any other Loan Document) forthwith on the date
due as provided
in Section 2.2(f). Each Revolving Credit Lender acknowledges and
agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of
Letters of Credit is absolute and unconditional and shall not be
affected by any
circumstance whatsoever, including the occurrence and continuance
of a Default
or an Event of Default, and that each such payment shall be made
without any
offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in
respect of a Letter of Credit, the Borrower shall pay to the
Administrative
Agent (or directly to the Issuing Bank, with concurrent notice to
the
Administrative Agent) an amount equal to such L/C Disbursement not
later than
two hours after the Borrower shall have received notice from the
Issuing Bank
that payment of such draft will be made, or, if the Borrower shall
have received
such notice later than 10:00 a.m., New York City Time, on any
Business Day, not
later than 10:00 a.m., New York City Time, on the immediately
following Business
Day.
(f)
Obligations Absolute. The Borrower's obligations to reimburse
L/C
Disbursements as provided in paragraph (e) above shall be
absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance
with the terms of this Agreement, under any and all circumstances
whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or
any
Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all
or
any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other right
that
the
Borrower, any other party guaranteeing, or otherwise obligated
with,
the
Borrower, any Subsidiary or other Affiliate thereof or any other
person
may
at any time have against the beneficiary under any Letter of
Credit,
the
Issuing Bank, the Administrative Agent or any Lender or any
other
person,
<PAGE>
43
whether in connection with this Agreement, any other Loan Document
or any
other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or
any
statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit
against
presentation of a draft or other document that does not comply with
the
terms of such Letter
of Credit; and
(vi) any other act or omission to act or delay of any kind of
the
Issuing Bank, the Lenders, the Administrative Agent or any other
person or
any
other event or circumstance whatsoever, whether or not similar to
any
of
the foregoing, that might, but for the provisions of this
Section,
constitute a legal or equitable discharge of the Borrower's
obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and
agreed that the absolute and unconditional obligation of the
Borrower hereunder
to reimburse L/C Disbursements will not be excused by the gross
negligence or
willful misconduct of the Issuing Bank. However, the foregoing
shall not be
construed to excuse the Issuing Bank from liability to the Borrower
to the
extent of any direct damages (as opposed to consequential damages,
claims in
respect of which are hereby waived by the Borrower to the extent
permitted by
applicable law) suffered by the Borrower that are caused by the
Issuing Bank's
gross negligence or willful misconduct in determining whether
drafts and other
documents presented under a Letter of Credit comply with the terms
thereof; it
is understood that the Issuing Bank may accept documents that
appear on their
face to be in order, without responsibility for further
investigation,
regardless of any notice or information to the contrary and, in
making any
payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on
the documents presented to it under such Letter of Credit as to any
and all
matters set forth therein, including reliance on the amount of any
draft
presented under such Letter of Credit, whether or not the amount
due to the
beneficiary thereunder equals the amount of such draft and whether
or not any
document presented pursuant to such Letter of Credit proves to be
insufficient
in any respect, if such document on its face appears to be in
order, and whether
or not any other statement or any other document presented pursuant
to such
Letter of Credit proves to be forged or invalid or any statement
therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any
noncompliance
in any immaterial respect of the documents presented under such
Letter of Credit
with the terms thereof shall, in each case, be deemed not to
constitute willful
misconduct or gross negligence of the Issuing Bank.
(g)
Disbursement Procedures. The Issuing Bank shall, promptly
following
its receipt thereof, examine all documents purporting to represent
a demand for
payment under a Letter of Credit. The Issuing Bank shall as
promptly as possible
give telephonic notification, confirmed by fax, to the
Administrative Agent and
the Borrower of such demand for payment and whether the Issuing
Bank has made or
will make an L/C Disbursement thereunder; provided, that any
failure to give or
delay in giving such notice shall not relieve the Borrower of its
obligation to
reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any
such L/C Disbursement. The Administrative Agent shall promptly give
each
Revolving Credit Lender notice thereof.
(h)
Interim Interest. If the Issuing Bank shall make any L/C
Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof
shall bear
interest for the account of the Issuing Bank, for each day from and
including
the date of such L/C Disbursement, to but excluding the earlier of
the date of
payment by the Borrower or the date on which interest shall
commence to accrue
thereon as provided in Section 2.2(f), at the rate per annum that
would apply to
such amount if such amount were an ABR Revolving Loan.
<PAGE>
44
(i)
Resignation or Removal of the Issuing Bank. The Issuing Bank
may
resign at any time by giving 30 days' prior written notice to the
Administrative
Agent, the Lenders and the Borrower, and may be removed at any time
by the
Borrower by notice to the Issuing Bank, the Administrative Agent
and the
Lenders. Subject to the other provisions of this paragraph (i),
upon the
acceptance of any appointment as the Issuing Bank hereunder by a
Lender that
shall agree to serve as successor Issuing Bank, such successor
shall succeed to
and become vested with all the interests, rights and obligations of
the retiring
Issuing Bank and the retiring Issuing Bank shall be discharged from
its
obligations to issue additional Letters of Credit hereunder. At the
time such
removal or resignation shall become effective, the Borrower shall
pay all
accrued and unpaid fees pursuant to Section 2.5(c)(ii). The
acceptance of any
appointment as the Issuing Bank hereunder by a successor Lender
shall be
evidenced by an agreement entered into by such successor, in a form
satisfactory
to the Borrower and the Administrative Agent, and, from and after
the effective
date of such agreement, (i) such successor Lender shall have all
the rights and
obligations of the previous Issuing Bank under this Agreement and
the other Loan
Documents and (ii) references herein and in the other Loan
Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any
previous
Issuing Bank, or to such successor and all previous Issuing Banks,
as the
context shall require. After the resignation or removal of the
Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto
and shall
continue to have all the rights and obligations of an Issuing Bank
under this
Agreement and the other Loan Documents with respect to Letters of
Credit issued
by it prior to such resignation or removal, but shall not be
required to issue
additional Letters of Credit.
(j)
Cash Collateralization. If any Event of Default shall occur and
be
continuing, the Borrower shall, on the Business Day it receives
notice from the
Administrative Agent or the Required Lenders (or, if the maturity
of the Loans
has been accelerated, Revolving Credit Lenders holding
participations in
outstanding Letters of Credit representing greater than 50% of the
aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of
the amount
to be deposited, deposit in an account with the Administrative
Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to
the L/C
Exposure as of such date; provided, however, that the obligation to
deposit such
cash shall become effective immediately, and such deposit shall
become
immediately due and payable, without demand or other notice of any
kind, upon
the occurrence of any Event of Default with respect to the Borrower
described in
clause (g) or (h) of Article VII. Such deposit shall be held by
the
Administrative Agent as collateral for the payment and performance
of the
Obligations. The Administrative Agent shall have exclusive dominion
and control,
including the exclusive right of withdrawal, over such account.
Other than any
interest earned on the investment of such deposits in Permitted
Investments,
which investments shall be made at the option and sole discretion
of the
Administrative Agent, such deposits shall not bear interest.
Interest or
profits, if any, on such investments shall accumulate in such
account. Moneys in
such account shall (i) automatically be applied by the
Administrative Agent to
reimburse the Issuing Bank for L/C Disbursements for which it has
not been
reimbursed, (ii) be held for the satisfaction of the reimbursement
obligations
of the Borrower for the L/C Exposure at such time and (iii) if the
maturity of
the Loans has been accelerated (but subject to the consent of
Revolving Credit
Lenders holding participations in outstanding Letters of Credit
representing
greater than 50% of the aggregate undrawn amount of all outstanding
Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is
required to
provide an amount of cash collateral hereunder as a result of the
occurrence of
an Event of Default, such amount (to the extent not applied as
aforesaid) shall
be returned to the Borrower within three Business Days after all
Events of
Default have been cured or waived.
(k)
Additional Issuing Banks. The Borrower may, at any time and from
time
to time with the consent of the Administrative Agent (which consent
shall not be
unreasonably withheld) and such Lender, designate one or more
additional Lenders
to act as an Issuing Bank under the terms of the Agreement. Any
Lender
designated as an Issuing Bank pursuant to this paragraph (k) shall
be deemed to
be an "Issuing Bank" (in addition to being a Lender) in respect of
Letters of
Credit issued or to be issued by
<PAGE>
45
such Lender, and, with respect to such Letters of Credit, such term
shall
thereafter apply to the other Issuing Bank and such Lender.
Section 2.23. Increase in Term Loan Commitments. (a) The Borrower
may, by
written notice to the Administrative Agent, request Incremental
Term Loan
Commitments in an amount not to exceed the Incremental Term Loan
Amount from one
or more Incremental Term Lenders (which may include any existing
Lender) willing
to provide such Incremental Term Loans in their own discretion;
provided, that
(i) before submitting any such request to a Person that is not a
Lender, the
Borrower shall first give each existing Lender the opportunity to
provide such
Incremental Term Loan Commitments (in which case, existing Lenders
shall have no
more than two (2) Business Days from the date of such notice to
indicate whether
they are willing to provide such Incremental Term Loans) and (ii)
each
Incremental Term Lender, if not already a Lender hereunder, shall
be subject to
the approval of the Administrative Agent (which approval shall not
be
unreasonably withheld). Such notice shall set forth (i) the amount
of the
Incremental Term Loan Commitments being requested (which shall be
equal to the
Incremental Term Loan Amount), (ii) the date on which such
Incremental Term Loan
Commitments are requested to become effective (which shall not be
less than 10
Business Days after the date of such notice) and (iii) whether such
Incremental
Term Loan Commitments are to be Term Loan Commitments or
commitments to make
term loans with terms different from the Term Loans ("Other Term
Loans"). The
Incremental Term Loans shall be made on a single borrowing
date.
(b)
The Borrower and each Incremental Term Lender shall execute and
deliver to the Administrative Agent an Incremental Term Loan
Assumption
Agreement and such other documentation as the Administrative Agent
shall
reasonably specify to evidence the Incremental Term Loan Commitment
of such
Incremental Term Lender. Each Incremental Term Loan Assumption
Agreement shall
specify the terms of the Incremental Term Loans to be made
thereunder; provided,
that, without the prior written consent of the Required Lenders,
(i) the final
maturity date of any Other Term Loans shall be no earlier than the
Term Loan
Maturity Date and (ii) the average life to maturity of any Other
Term Loans
shall be no shorter than the average life to maturity of the Term
Loans and
provided, further, that, if the interest rate margin in respect of
any Other
Term Loan would exceed the Applicable Percentage for the Term Loans
by more than
1/2 of 1% (it being understood that any such increase may take the
form of
original issue discou
