AMENDED AND RESTATED CREDIT AGREEMENTLoan Agreement |
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Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED
Dated as of August 17, 2004
among
AFFILIATED MANAGERS GROUP,
INC.,
BANK OF AMERICA, N.A.,
JP MORGAN CHASE BANK, as Syndication Agent,
THE BANK OF NEW YORK, as Documentation Agent,
and
The Several Lenders
BANC OF AMERICA SECURITIES
LLC
TABLE OF CONTENTS
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of August 17, 2004, is among Affiliated Managers Group, Inc., a Delaware corporation (the “ Borrower ”), the several banks and other financial institutions from time to time parties to this Agreement (the “ Lenders ”), Bank of America, N.A. (“ Bank of America ”), as administrative agent, JP Morgan Chase Bank, as syndication agent, and The Bank of New York, as documentation agent.
W I T N E S S E T H :
WHEREAS, the Borrower, various financial institutions and Bank of America, as administrative agent, are parties to a Credit Agreement dated as of August 7, 2002 (the “ Existing Credit Agreement ”); and
WHEREAS, the parties hereto have agreed to amend and restate the Existing Credit Agreement pursuant to this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1.1. Defined Terms . As used in this Agreement, the following terms shall have the following meanings:
“ ABR ” means, for any day, a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“ ABR Loan ” means a Loan that bears interest at a rate based upon the ABR.
“ Acquisition ” means the acquisition by the Borrower, directly or indirectly, of equity interests in an Investment Firm.
“ Adjusted Consolidated EBITDA ” means, for any Computation Period, Consolidated EBITDA for such Computation Period adjusted by giving effect on a pro forma basis to Acquisitions and dispositions completed during such Computation Period.
“ Administrative Agent ” means Bank of America, N.A. in its capacity as administrative agent under this Agreement and the other Loan Documents, or any successor administrative agent.
“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.2 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“ Affiliate ” means as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“ Agreement ” means this Amended and Restated Credit Agreement.
“ Applicable Margin ” means with respect to Eurodollar Loans and ABR Loans, from time to time, the rate per annum set forth under the headings “Applicable Margin for Eurodollar Loans” and “Applicable Margin for ABR Loans,” respectively, on Annex I hereto based upon the Debt Rating.
“ Arranger ” means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.
“ Asset Sale ” means any sale, issuance, conveyance, transfer, lease or other disposition, including by way of merger, consolidation or sale and leaseback transaction (any of the foregoing, a “transfer”), directly or indirectly, in one or a series of related transactions, of (i) all or substantially all of the properties and assets (other than marketable securities, including “margin stock” within the meaning of Regulation U, liquid investments and other financial instruments) of the Borrower or any Subsidiary, or (ii) any other properties or assets of the Borrower or any Subsidiary, other than in the ordinary course of business, to any Persons other than the Borrower or any Subsidiary. For the purposes of this definition, the term “Asset Sale” shall not include (a) any transfer of properties and assets to the extent that the gross proceeds from the transfer thereof do not exceed (i) $10,000,000 in any single transaction or series of related transactions, taken as a whole, or (ii) $25,000,000 (irrespective of the size of the individual transactions) in the aggregate for all such transactions on or after the Closing Date, and (b) any transfer of the Capital Stock of any Investment Firm or any Subsidiary to a partner, officer, director, shareholder, employee or member (or any entity owned or controlled by such Person) of an Investment Firm which is a Subsidiary or in which the Borrower or a Subsidiary has an ownership interest (any such transfer described in this clause (b) , a “ Shareholder Asset Sale ”). In addition, with regard to a Subsidiary, the term “Asset Sale” shall include only that portion of the gross proceeds to such Subsidiary from the transfer thereof representing the percentage of such proceeds equal to the percentage of the Borrower’s ownership interest in such Subsidiary.
“ Assignee ” is defined in Section 10.6(c) .
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“ Attorney Costs ” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the reasonable and documented allocated cost of internal legal services and all reasonable and documented expenses and disbursements of internal counsel; provided that in the case of the enforcement or preservation of any rights under the Loan Documents during the continuance of an Event of Default or in connection with any “workout”, Attorney Costs shall not be limited by the term “reasonable” in this definition.
“ Available Commitment ” means as to any Lender at any time, an amount equal to the excess, if any, of (a) the amount of such Lender’s Commitment over (b) the aggregate principal amount of all outstanding Revolving Loans made by such Lender plus , for all purposes other than Section 2.4 , its Commitment Percentage of all outstanding Swingline Loans.
“ Bank of America ” means Bank of America, N.A. and its successors.
“ Borrower ” is defined in the preamble.
“ Borrower Pledge Agreement ” means the pledge agreement dated as of August 7, 2002 between the Borrower and the Administrative Agent, a copy of which (as in effect on the date hereof) is attached as Exhibit B-1 .
“ Borrowing Date ” means any Business Day specified in a notice pursuant to Section 2.2 or 2.8 as a date on which the Borrower requests the Lenders or the Swingline Lender to make Loans hereunder.
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, Boston, Massachusetts or New York, New York, and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.
“ Cash Equivalent ” means, at any time, (a) any evidence of indebtedness, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-1 by S&P or P-1 by Moody’s (or carrying an equivalent rating by an internationally-recognized rating agency), (c) any certificate of deposit (or time deposits represented by such certificates of deposit) or bankers acceptance, maturing not more than one year after such time, or overnight Federal Funds transactions or money market deposit accounts that are issued or sold by, or maintained
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with, a commercial bank or financial institution incorporated under the laws of the United States, any state thereof or the District of Columbia which is rated at least A-1 by S&P or P-l by Moody’s (or carrying an equivalent rating by an internationally-recognized rating agency), (d) any repurchase agreement entered into with a commercial bank or financial institution meeting the requirements of clause (c) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial bank or financial institution thereunder, (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank or financial institution meeting the requirements of clause (c) , (f) any short-term (or readily marketable or immediately redeemable) investment in a structured investment vehicle, structured investment deposit or similar instrument with a financial strength rating of A by S&P or Moody’s or (g) shares of money market mutual or similar funds which invest primarily in assets satisfying the requirements of clauses (a) through (f) of this definition.
“ Change of Control ” shall be deemed to occur on any date on which any Person or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934) shall have acquired beneficial ownership of Capital Stock having 30% or more of the ordinary voting power in the election of directors of the Borrower.
“ Closing Date ” means the date on which the conditions precedent set forth in Section 5.1 shall be satisfied.
“ COBRAs ” means the Floating Rate Senior Convertible Debentures due 2033 issued by the Borrower on February 25, 2003.
“ Code ” means the Internal Revenue Code of 1986.
“ Commitment ” means, as to any Lender, the obligation of such Lender to make Loans to the Borrower hereunder in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I under the heading “Commitment”, as such amount may be increased or reduced from time to time in accordance with the provisions of this Agreement.
“ Commitment Fee Rate ” means, from time to time, the rate per annum set forth under the heading “Commitment Fee Rate” on Annex I hereto based upon the Debt Rating.
“ Commitment Percentage ” means as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have expired or terminated, the percentage which (a) the aggregate principal amount of such Lender’s Revolving Loans then outstanding plus (b) its Percentage of any Swingline Loans, constitutes of the aggregate principal amount of the Loans then outstanding).
“ Commitment Period ” means the period from the date hereof to the Termination Date or such earlier date on which the Commitments shall terminate as provided herein.
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“ Commonly Controlled Entity ” means an entity, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under Section 414 of the Code.
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit H .
“ Computation Period ” means each period of four consecutive fiscal quarters ending on the last day of a fiscal quarter.
“ Consolidated EBITDA ” means for any period the consolidated EBITDA of the Borrower and its Subsidiaries for such period.
“ Consolidated Interest Expense ” means, for any period, the amount of interest expense of the Borrower and, to the extent payable out of Free Cash Flow (and not Operating Cash Flow) under the relevant Revenue Sharing Agreement, its Subsidiaries on a consolidated basis, net of the portion thereof attributable to minority interests, for such period.
“ Consolidated Net Income ” (or “ Consolidated Net Loss ”) means for any period, consolidated net income (or loss) of the Borrower and its Subsidiaries for such period.
“ Consolidated Net Worth ” means, as at any date, all amounts included under shareholders’ equity on a consolidated balance sheet of the Borrower and its Subsidiaries as at such date.
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Debt Rating” means, as of any date of determination, the rating by S&P of the Borrower’s non-credit-enhanced, senior unsecured long-term debt.
“ Default ” means any of the events specified in Section 8 , whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“ Default Rate ” means an interest rate equal to (a) the ABR plus (b) the Applicable Margin, if any, applicable to ABR Loans plus (c) 2% per annum; provided that with respect to a Eurodollar Loan, the Default Rate shall be an interest rate equal to (i) the Eurodollar Rate applicable to such Loan plus (ii) the Applicable Margin applicable to Eurodollar Loans plus (iii) 2% per annum.
“ Dollars ” and “ $ ” mean lawful currency of the United States of America.
“ EBITDA ” means, for any Person for any period, the sum (without duplication) of the amount for such Person for such period of (a) its net income before taxes and (b) to
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the extent deducted in determining its net income, (i) its interest expense (including capitalized interest expense), (ii) its depreciation expense, (iii) its amortization expense and (iv) its Non-Cash Based Compensation Costs.
“ Environmental Law ” means any Federal, state, local or foreign statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement or governmental restriction relating to pollution or the protection of the environment or the release of any material into the environment, including any of the foregoing related to hazardous substances or wastes, air emissions or discharges to waste or public systems.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ ERISA ” means the Employee Retirement Income Security Act of 1974.
“ Eurodollar Loan ” means a Loan that bears interest at a rate based upon the Eurodollar Rate.
“ Eurodollar Rate ” means, for any Interest Period with respect to any Eurodollar Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Where,
“ Eurodollar Base Rate ” means, for such Interest Period:
(a) the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or another commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or
(b) if the rate described in clause (a) is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the
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rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
“ Eurodollar Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurodollar funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“ Event of Default ” means any of the events specified in Section 8 .
“ Existing Credit Agreement ” is defined in the recitals.
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“ Feline Prides I ” means the equity security units originally issued by the Borrower on December 21, 2001, consisting of (a) interest bearing notes due November 17, 2006 (“ Feline Prides I Senior Notes ”) and (b) purchase contracts under which each purchaser of a Feline Prides I agrees to purchase common stock of the Borrower for an amount equal to the face amount of the Feline Prides Senior Notes held by such purchaser on November 17, 2004 (“ Feline Prides Forward Contracts ”).
“ Feline Prides Forward Contracts ” is defined in the definition of Feline Prides I.
“ Feline Prides I Senior Notes ” is defined in the definition of Feline Prides I.
“ Feline Prides II ” means the equity security units issued by the Borrower on February 17, 2004, consisting of (a) interest bearing notes due February 17, 2010 (“ Feline Prides II Senior Notes ”) and (b) purchase contracts under which each purchaser of a Feline Prides II agrees to purchase common stock of the Borrower for an amount equal to
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the face amount of the Feline Prides II Senior Notes held by such purchaser on February 17, 2008.
“ Feline Prides II Senior Notes ” is defined in the definition of Feline Prides II.
“ Financing Lease ” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.
“ FP Collateral Agent ” means Bank of America in its capacity as agent under the FP Growth Pledge Agreement and the documents related thereto, and any successor or assign in such capacity.
“ FP Growth Collateral ” means the “Collateral” under and as defined in the FP Growth Pledge Agreement.
“ FP Growth Pledge Agreement ” means the Pledge and Security Agreement dated as of July 21, 2004 between the Borrower and the FP Collateral Agent, a copy of which is attached as Exhibit L .
“ FP Income Collateral ” means the “Collateral” under and as defined in the FP Income Pledge Agreement.
“ FP Income Pledge Agreement ” means the Pledge and Security Agreement dated as of the date hereof between the Borrower and the Administrative Agent, substantially in the form of Exhibit M .
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
“ Free Cash Flow ” means distributions due and payable to the Borrower by and from an Investment Firm under the Revenue Sharing Agreement applicable to such Investment Firm, including “Free Cash Flow” or “Owners’ Allocation” as such terms are defined in certain Revenue Sharing Agreements.
“ Funds ” means the collective reference to all Investment Companies and other investment accounts or funds (in whatever form and whether personal or corporate) for which any Subsidiary or Investment Firm provides advisory, management or administrative services.
“ GAAP ” means generally accepted accounting principles in the United States of America in effect from time to time.
“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
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“ Guarantee Obligation ” means as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) with respect to which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in any such case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“ Indebtedness ” means, as to any Person at any date and without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument (including the Feline Prides I Senior Notes and Feline Prides II Senior Notes), (c) all obligations of such Person under Financing Leases, (d) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (e) all obligations of such Person under noncompetition agreements reflected as liabilities on a balance sheet of such Person in accordance with GAAP, (f) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (g) all net obligations of such Person under interest rate, commodity, foreign currency and financial markets swaps, options, futures and other hedging obligations (valued, at such date, in accordance with the
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Borrower’s customary practices, as approved by its independent certified public accountants) and (h) all Guarantee Obligations of such Person in respect of any of the foregoing. For purposes of the foregoing definition, with regard to a Subsidiary, the term “Indebtedness” shall include only that portion of its Indebtedness representing the percentage of its Indebtedness equal to the percentage of the Borrower’s ownership interest in such Subsidiary. For the avoidance of doubt, the term “Indebtedness” shall not include (i) Synthetic Lease Obligations, (ii) any Guarantee Obligations in respect of Synthetic Lease Obligations or (iii) any liabilities secured by any Lien in connection with Synthetic Lease Obligations.
“ Indemnified Liabilities ” is defined in Section 10.05 .
“ Insolvency ” means with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“ Insolvent ” pertaining to a condition of Insolvency.
“ Interest Payment Date ” means (a) as to any ABR Loan, the last day of each March, June, September and December, (b) as to any Eurodollar Loan, (i) the last day of each Interest Period therefor, (ii) if any Interest Period is longer than three months, each three-month anniversary of the first day of such Interest Period and (iii) the date of any prepayment thereof.
“ Interest Period ” means, with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one or two weeks or one, two, three or six months thereafter (or such other period as is requested by the Borrower and consented to by the Required Lenders and the Administrative Agent), as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one or two weeks or one, two, three or six months thereafter (or such other period as is requested by the Borrower and consented to by the Required Lenders and the Administrative Agent), as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto;
provided that the foregoing provisions relating to Interest Periods are subject to the following:
(1) 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;
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(2) the Borrower may not select any Interest Period that would extend beyond the scheduled Termination Date; and
(3) unless otherwise agreed by the Borrower, the Required Lenders and the Administrative Agent, any Interest Period (other than a one or two week Interest Period) that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the appropriate subsequent calendar month.
“ Investment Advisers Act ” means the Investment Advisers Act of 1940.
“ Investment Company ” means an “investment company” as such term is defined in the Investment Company Act.
“ Investment Company Act ” means the Investment Company Act of 1940.
“ Investment Firm ” means any Subsidiary or other Person engaged, directly or indirectly, primarily in the business (the “ Investment Management Business ”) of providing investment advisory, management, distribution or administrative services to Funds (or investment accounts or funds which will be included as Funds after the Borrower acquires an interest in such other Person) and in which the Borrower, directly or indirectly, has purchased or otherwise acquired, or has entered into an agreement to purchase or otherwise acquire, Capital Stock or other interests entitling the Borrower, directly or indirectly, to a share of the revenues, earnings or value thereof.
“ Investment Management Business ” is defined in the definition of “Investment Firm.”
“ Lenders ” is defined in the preamble (and such term includes the Swingline Lender).
“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any Financing Lease or synthetic lease having substantially the same economic effect as any of the foregoing).
“ Loan Documents ” means this Agreement, any Notes and the Pledge Agreements.
“ Loan Party ” means the Borrower and each Subsidiary that is a party to a Loan Document.
“ Loans ” means the Revolving Loans and the Swingline Loans.
“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Borrower and its
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Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations under any Loan Document to which it is a party or (c) the validity or enforceability against any Loan Party of this or any of the other Loan Documents to which it is a party or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
“ Multiemployer Plan ” means a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Net Proceeds ” means, with respect to any Asset Sale or Shareholder Asset Sale, the net amount equal to the aggregate amount received (including by way of deferred payment pursuant to a note receivable, other non-cash consideration or otherwise) in connection with such Asset Sale or Shareholder Asset Sale minus the sum of (a) the reasonable fees, commissions and other out-of-pocket expenses incurred by the Borrower or any Subsidiary, as applicable, in connection with such Asset Sale or Shareholder Asset Sale (other than amounts payable to Affiliates of the Person making such disposition) and (b) federal, state and local taxes incurred in connection with such Asset Sale or Shareholder Asset Sale, whether or not payable at such time. For purposes of the foregoing definition, with regard to a Subsidiary, the term “Net Proceeds” shall include only that portion of its Net Proceeds representing the percentage of its Net Proceeds equal to the percentage of the Borrower’s ownership interest in such Subsidiary (or, if less in the case of any Asset Sale by a Subsidiary, the portion to which the Borrower is entitled under any relevant Revenue Sharing Agreement or other operating agreement with or with respect to such Subsidiary).
“ Non-Cash Based Compensation Costs ” means for any period, the amount of non-cash expense or costs computed under APB No. 25 and related interpretations or FAS 123 and related interpretations, which relate to the issuance of interests in the Borrower, any Subsidiary or any Investment Firm.
“ Non-Excluded Taxes ” is defined in Section 3.11 .
“ Note ” is defined in Section 2.6(e) .
“ Operating Cash Flow ” is that term defined as either “Operating Cash Flow” or “Operating Allocation” in the relevant Revenue Sharing Agreement; provided , however , that in the event such term is not defined in any Relevant Sharing Agreement, Operating Cash Flow shall mean all revenues other than Free Cash Flow (as defined in this Agreement) for the applicable Investment Firm.
“ Participant ” is defined in Section 10.6(b) .
“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
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“ Percentage ” means for any Lender the percentage set forth under the heading “Percentage” on Schedule I , as adjusted from time to time due to changes in such Lenders’ Commitment and in the aggregate Commitments in accordance with the provisions of this Agreement.
“ Person ” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“ Plan ” means at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Pledge Agreements ” means, collectively, the Borrower Pledge Agreement and the Subsidiary Pledge Agreement.
“ Pledge Agreement Supplement ” means a Pledge Agreement Supplement substantially in the form of Annex I to Exhibit B-1 or B-2 , as applicable.
“ Pledged Collateral ” is defined in each Pledge Agreement.
“ Purchase Contract Agent ” means the agent for the holders of Feline Prides I under the Purchase Contract Agreement dated as of December 21, 2001.
“ Refunded Swingline Loans ” is defined in Section 2.8(b) .
“ Refunding Date ” is defined in Section 2.8(c) .
“ Register ” is defined in Section 10.6(d) .
“ Regulation U ” means Regulation U of the FRB.
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Affiliates.
“ Reorganization ” means, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“ Reportable Event ” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section with respect to a Plan, excluding however, such events as to which the PBGC by regulation waived the requirements of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; provided , however , that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
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“ Required Lenders ” means at any time, Lenders the Commitment Percentages of which aggregate more than 50%.
“ Requirement of Law ” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Responsible Officer ” means each of the chief executive officer, the president, any executive vice president, any senior vice president or any vice president of the Borrower or, with respect to financial matters, the senior financial officer of the Borrower, in each case acting singly.
“ Revenue Sharing Agreement ” means each agreement entered into by the Borrower or a Subsidiary with an Investment Firm pursuant to which a specified percentage of the revenue of such Investment Firm is distributed among such Investment Firm’s partners, shareholders or members, pro rata in accordance with such partners’, shareholders’ or members’ ownership percentages in such Investment Firm (such percentage being referred to in certain Revenue Sharing Agreements as “Free Cash Flow” or “Owners’ Allocation”), or any other agreement providing for the distribution of income, revenue or assets of an Investment Firm.
“ Revolving Loan ” is defined in Section 2.1(a) .
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
“ Securities Acts ” means the Securities Act of 1933 and the Securities Exchange Act of 1934.
“ Settlement Date ’ means the date on which the Feline Prides I Forward Contracts are exercised and the Borrower issues common stock in respect thereof.
“ Shareholder Asset Sale ” is defined in the definition of Asset Sale.
“ Single Employer Plan ” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“ Short-Term Loan ” is defined in Section 7.2(n) .
“ Subordinated Indebtedness ” means (a) Indebtedness of the Borrower and/or any other Loan Party under any Subordinated Payment Note and (b) other Indebtedness of the Borrower or any Subsidiary which has maturities and other terms, and which is subordinated to the obligations of the Borrower and its Subsidiaries hereunder and under the other Loan Documents in a manner, approved in writing by the Required Lenders.
“ Subordinated Payment Notes ” means any unsecured notes evidencing Indebtedness of the Borrower and/or any other Loan Party or obligations issued to a seller
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in connection with an Acquisition of an Investment Firm or in connection with an increase of the Borrower’s ownership interest in an Investment Firm, in each case as permitted hereunder (i) for which the Borrower and/or any other Loan Party is directly, primarily or contingently liable, (ii) the payment of the principal of and interest on which and other obligations of the Borrower or such other Loan Party in respect of which are subordinated to the prior payment in full of the principal of and interest (including post-petition interest whether or not allowed as a claim in any proceeding) on the Loans and all other obligations and liabilities of the Borrower or such other Loan Party to the Administrative Agent and the Lenders hereunder, and (iii) which are generally consistent with the terms and conditions of subordination set forth in Exhibit G hereof (with any variations to such terms and conditions being subject to approval by the Administrative Agent) or otherwise satisfactory in form and substance to the Required Lenders. For the avoidance of doubt, the term “Subordinated Payment Notes” includes the Subordinated Promissory Notes issued by The Managers Funds LLC, a majority-owned subsidiary of the Borrower, pursuant to the Purchase Agreement dated May 22, 2000 by and among the Borrower, The Managers Funds LLC and Smith Breeden Associates, Inc. and any contingent consideration issuable by the Borrower in a form substantially the same as the form of contingent consideration described in the Friess Associates, LLC Amended and Restated LLC Agreement dated August 28, 2001.
“ Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which Capital Stock having ordinary voting power (other than Capital Stock having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“ Subsidiary Pledge Agreement ” means the Subsidiary Pledge Agreement dated as of August 7, 2002 between various Subsidiaries and the Administrative Agent, a copy of which (as in effect on the date hereof) is attached as Exhibit B-2 .
“ Swingline Amount ” means the lesser of $15,000,000 and the aggregate amount of the Commitments.
“ Swingline Lender ” means Bank of America in its capacity as the lender of the Swingline Loans, or any successor swingline lender hereunder.
“ Swingline Loans ” is defined in Section 2.7(a) .
“ Swingline Participation Amount ” is defined in Section 2.8(c) .
“ Synthetic Lease Obligation ” means the monetary obligations of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance
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sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“ Termination Date ” means August 17, 2007 or any earlier date when the Commitments hereunder are terminated.
“ Total Indebtedness ” means at any time, the aggregate principal amount (including capitalized interest) of all Indebtedness of the Borrower and its Subsidiaries (including the Loans, the Zero-Coupon Bonds, purchase money obligations and amounts payable under noncompetition agreements); provided that Total Indebtedness shall not include (a) Subordinated Payment Notes, (b) Indebtedness of the Borrower owing to any Subsidiary permitted by Section 7.2(k) , (c) Indebtedness of any Subsidiary owing to the Borrower or any other Loan Party, (d) prior to November 17, 2004, 90% of the principal amount of the Feline Prides I Senior Notes, (e) prior to February 17, 2008, the Specified Percentage (as defined below) of the principal amount of the Feline Prides II Senior Notes, (f) prior to November 17, 2004, the Short-Term Loans or (g) prior to November 17, 2004, a portion of the principal of the Loans equal to the amount (if any) of the FP Income Collateral and FP Growth Collateral securing the obligations of the Borrower hereunder. For purposes of clause (e) above, “Specified Percentage” means (i) 80% at any time prior to February 17, 2006, (ii) 85% during the period from February 17, 2006 through February 17, 2007 and (iii) 90% thereafter.
“ Tranche ” means the collective reference to Eurodollar Loans having Interest Periods that began or will begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“ Transferee ” is defined in Section 10.6(f) .
“ Treasury Strips ” means principal and interest strips of U.S. Treasury securities that consist of principal or interest strips maturing on or prior to November 15, 2004 and that are purchased by the Purchase Contract Agent pursuant to the terms of the Purchase Contract Agreement dated as of December 21, 2001 on behalf of the holders of Feline Prides I.
“ Type ” means, as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“ Zero-Coupon Bonds ” means the senior unsecured convertible zero-coupon bonds due 2021 issued by the Borrower on May 7, 2001.
1.2. Other Definitional and Interpretive Provisions .. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes or any certificate or other document made or delivered pursuant hereto.
(b) When used with reference to a period of time, the word “from” means “from and including” and the word “to” means “to but excluding”.
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(c) The term “including” is not limiting and means “including without limitation.”
(d) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document; and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions and rules consolidating, amending, replacing, supplementing or interpreting such statute or regulation.
(e) Section , subsection , clause , Schedule and Exhibit references are to this Agreement unless otherwise specified.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3. Accounting Terms .
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2003 and the related audited consolidated statements of income and of cash flows for the fiscal year ended on such date, audited by PricewaterhouseCoopers LLP, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS; SWINGLINE LOANS
2.1. Commitments . (a) Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (“ Revolving Loans ”) (provided that any repricing or conversion of an outstanding Revolving Loan shall not be considered a making of a Revolving Loan) to the Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the amount of such Lender’s Commitment; provided that no Lender shall be obligated to make a Revolving Loan if,
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after giving effect to the making of such Revolving Loan, such Lender’s Available Commitment would be less than zero. During the Commitment Period the Borrower may use the Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 3.3 .
2.2. Procedure for Borrowing . The Borrower may borrow under the Commitments during the Commitment Period on any Business Day; provided that the Borrower shall give the Administrative Agent irrevocable written notice, in substantially the form of Exhibit I hereto (which notice must be received by the Administrative Agent prior to 11:00 a.m., New York City time, (a) three Business Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing Date, if all of the requested Loans are to be initially ABR Loans), in each case specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Periods for such Eurodollar Loans. Each borrowing of ABR Loans shall be in an amount equal to $1,000,000 or a whole multiple of $100,000 in excess thereof, and each borrowing of Eurodollar Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Administrative Agent’s Office prior to 1:00 p.m., New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. The failure of any Lender to make a Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation to make available its share of such borrowing.
2.3. Increase of Commitments . (a) The Borrower may from time to time (but not more than five times), so long as no Event of Default exists, request an increase in the aggregate amount of the Commitments by delivering a written request (an “Increase Request”) to the Administrative Agent and the Lenders; provided that the aggregate amount of all increases in the amount of the Commitments pursuant to this Section 2.3 shall not exceed $60,000,000. Any Increase Request shall specify (i) the date (the “ Increase Response Date ”) by which any Lender or prospective Lender that is willing to increase its Commitment must respond to such request, (ii) the date (the “Increase Effective Date”) on which the requested increase is to become effective (which shall be at least five Business Days after the related Increase Response Date) and (iii) the amount of the requested increase (which shall be $10,000,000 or a higher integral multiple of $1,000,000). No Lender shall be obligated to increase its commitment pursuant to any Increase Request.
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(b) Not later than the Increase Response Date for an Increase Request, any Lender or prospective Lender that is willing to increase its Commitment in response to such Increase Request (an “Increasing Lender”) shall notify the Borrower and the Administrative Agent of the amount by which such Lender or prospective Lender is willing to increase its Commitment (which amount shall be an integral multiple of $1,000,000). On the first Business Day after the Increase Response Date, the Administrative Agent shall notify the Increasing Lenders of the amounts of their respective increases (it being understood that if the aggregate amount of increased Commitments offered pursuant to an Increase Request exceeds the amount requested, the Borrower, in consultation with the Administrative Agent, may (subject to the limitation in clause (a) above) accept all or any portion of such excess offered Commitments and/or allocate the increases in the Commitments among the Increasing Lenders). On the applicable Increase Effective Date, the Commitment of each Increasing Lender shall be increased by the amount offered by (or, if applicable, allocated to) such Increasing Lender and the aggregate amount of the Commitments shall be increased (and the Commitment Percentages adjusted) accordingly.
(c) If any Increasing Lender is not a Lender prior to the related Increase Effective Date, such Increasing Lender shall be subject to approval by the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed) and such Increasing Lender, the Borrower and the Administrative Agent shall sign and deliver a joinder agreement (a “Joinder Agreement”), substantially in form and substance as Exhibit N , pursuant to which such Increasing Lender shall become a party to this Agreement.
(d) From and after any Increase Effective Date, the Borrower and the Administrative Agent shall cooperate in making conversions of the Eurodollar Loans from one interest rate basis to another and in selecting Interest Periods to be applicable thereto in order, during a reasonable period following the Increase Effective Date, to make the Loans of the Lenders ratable (based on their respective Commitment Percentages after giving effect to the increased Commitments hereunder) in the various Tranches.
2.4. Commitment Fee . The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee for the period from the first day of the Commitment Period to the Termination Date, computed at the Commitment Fee Rate on the average daily amount of the Available Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the Termination Date.
2.5. Termination or Reduction of Commitments . The Borrower shall have the right, upon not less than five Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the aggregate amount of the Commitments to an amount that is not less than the aggregate principal amount of all outstanding Loans. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce permanently the Commitments then in effect.
2.6. Repayment of Loans; Evidence of Debt . (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan of such Lender on the Termination Date (or such
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earlier date on which the Loans become due and payable pursuant to Section 8 ). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 3.5 .
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of 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 the Register pursuant to Section 10.6(d) , and a subaccount therein for each Lender, in which shall be recorded (i) the amount and Type of each Loan made hereunder and each Interest Period for each Eurodollar Loan, (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 and each Lender’s share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will sign and deliver to such Lender a promissory note of the Borrower evidencing the Loans of such Lender, substantially in the form of Exhibit A with appropriate insertions as to date and principal amount (a “Note”).
2.7. Swingline Loans .
(a) Subject to the terms and conditions hereof, the Swingline Lender may (in its sole and absolute discretion) make a portion of the credit otherwise available to the Borrower under the Commitments available from time to time during the Commitment Period by making swing line loans (“Swingline Loans”) to the Borrower; provided that (i) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Amount and (ii) the Borrower shall not request, and the Swingline Lender shall not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Commitments would be less than zero. During the Commitment Period, the Borrower may borrow, repay, and reborrow Swingline Loans, subject to the agreement of the Swingline Lender and in accordance with the terms and conditions hereof. All Swingline Loans shall be ABR Loans.
(b) The Borrower shall repay all outstanding Swingline Loans on the Termination Date.
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2.8. Procedure for Swingline Borrowing; Refunding of Swingline Loans .
(a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender and the Administrative Agent irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Commitment Period). Each Swingline Loan shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 1:15 p.m., New York City time, on the proposed Borrowing Date (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.7(a)(ii) or (B) that one or more of the applicable conditions specified in Section 5 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender may (in its sole and absolute discretion), not later than 3:00 p.m., New York City time, on the proposed Borrowing Date, make available to the Administrative Agent at the Administrative Agent’s Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall make the proceeds of any such Swingline Loan available to the Borrower by depositing such proceeds in the account of the Borrower with the Administrative Agent on such Borrowing Date in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to act on its behalf), request each Lender to make, and each Lender hereby agrees to make, an ABR Loan, in an amount equal to such Lender’s Commitment Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date of such notice, to repay the Swingline Lender. Such request shall be made in writing and in accordance with the requirements of Section 2.2 , without regard to the minimum and multiples specified therein for the principal amount of ABR Loans. Each Lender shall make the amount of such Loan available to the Administrative Agent at the Administrative Agent’s Office in immediately available funds, not later than 1:00 p.m. New York City time, on the Borrowing Date specified by the Swingline Lender. The proceeds of such Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to charge the Borrower’s accounts with the Administrative Agent (up to the amount available in each such account) in order to immediately pay the amount of such Refunded Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Loan would have otherwise been made pursuant to Section 2.8(b) , one of the events described in Section 8(f) shall have occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the
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Administrative Agent in its sole discretion, Loans may not be made as contemplated by Section 2.8(b) , each Lender shall, on the date such Loan was to have been made pursuant to the notice referred to in Section 2.8(b) (the “Refunding Date”), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to (i) such Lender’s Commitment Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding that were to have been repaid with such Loans.
(d) Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Lender’s obligation to make the Loans referred to in Section 2.8(b) and to purchase participating interests pursuant to Section 2.8(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever; (ii) the existence of a Default or the failure to satisfy any of the other conditions specified in Section 5 ; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by any Loan Party or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO THE LOANS
3.1. Optional Prepayments . The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice to the Administrative Agent, at least three Business Days’ prior to the date of prepayment if all or any part of the Loans to be prepaid are Eurodollar Loans, and at least one Business Day prior to the date of prepayment if all of the Loans to be prepaid are ABR Loans, specifying the date and amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to Section 3.12 . Partial prepayments of ABR Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, and partial prepayments of Eurodollar Loans shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
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3.2. Mandatory Commitment Reductions; Mandatory Prepayments . (a) Concurrently with any Asset Sale or Shareholder Asset Sale if, after giving effect to such Shareholder Asset Sale, the Borrower does not continue to hold, directly or indirectly, in excess of a 50% ownership interest in the relevant Subsidiary or Investment Firm, the aggregate amount of the Commitments shall be permanently reduced by the excess (rounded down, if necessary, to an integral multiple of $5,000,000), if any, of the aggregate amount of the Net Proceeds of all Asset Sales and all such Shareholder Asset Sales made after the Closing Date (excluding any portion of such amount previously applied to reduce the Commitments pursuant to this Section 3.2) over $200,000,000; provided that the requirements of this clause (a) shall not apply to Net Proceeds from any Asset Sale or Shareholder Asset Sale to the extent that the Borrower notifies the Administrative Agent prior to or concurrently with the receipt of such Net Proceeds that such Net Proceeds are intended to be used, and such Net Proceeds are in fact used, to purchase similar assets within 180 days after such Asset Sale or Shareholder Asset Sale.
(b) If, as a result of the reduction of the Commitments pursuant to clause (a) , the aggregate principal amount of the Loans exceeds the aggregate amount of the Commitments, the Borrower shall immediately prepay Loans in the amount of such excess. All prepayments of Loans pursuant to this Section 3.2(b) shall be made without premium or penalty (but shall be subject to Section 3.12 ) and shall be accompanied by accrued and unpaid interest on the principal amount being prepaid. All such prepayments shall be applied as directed in writing by the Borrower or, in the absence of such direction, first , to prepay Swingline Loans until the Swingline Loans are paid in full, second , to prepay ABR Loans until the ABR Loans are paid in full and, third , to prepay Eurodollar Loans.
3.3. Conversion and Continuation Options . (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two Business Days’ prior irrevocable written notice, substantially in the form of Exhibit J hereto, of such election; provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans (other than ABR Loans which are Swingline Loans) to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable written notice, substantially in the form of Exhibit J hereto, of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be converted as provided herein; provided that no Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined that such a conversion is not appropriate.
(b) Any Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving written notice, substantially in the form of Exhibit J hereto, to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1 , of the length of the next Interest Period to be applicable to such Loans; provided that no Eurodollar Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has notified the Borrower that the Required Lenders have determined that
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such a continuation is not appropriate; and provided , further , that if the Borrower shall fail to give such notice or if such continuation is not permitted such Eurodollar Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period.
3.4. Minimum Amounts and Maximum Number of Tranches . All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event shall there be more than 10 Eurodollar Tranches outstanding at any time.
3.5. Interest Rates and Payment Dates . (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.
(c) If any amount payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace period), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws. Furthermore, upon the request of the Required Lenders, at any time an Event of Default exists, the Borrower shall pay interest on the Loans at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.
(d) Interest shall be payable in arrears on each Interest Payment Date and on the Termination Date; provided that interest accruing pursuant to Section 3.5(c) shall be payable from time to time on demand.
3.6. Computation of Interest and Fees . (a) Interest based on Bank of America’s “prime rate” shall be calculated on the basis of a year of 365 (or, if applicable, 366) days and for the actual number of days elapsed. All other interest and all fees shall be calculated on the basis of a year of 360 days and for the actual number of days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurodollar Reserve Percentage shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of the effective date and the amount of each such change in the ABR or the Eurodollar Reserve Percentage.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 3.5(a) .
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3.7. Inability to Determine Interest Rate . If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required Lenders that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by the Required Lenders) of making or maintaining their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic notice thereof, to the Borrower and the Lenders as soon as practicable thereafter. If such notice is given, (x) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any ABR Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to Eurodollar Loans.
3.8. Pro Rata Treatment and Payments . (a) Except as provided in Section 2.3(e) , each borrowing by the Borrower from the Lenders hereunder (other than borrowings of Swingline Loans), each payment by the Borrower on account of any commitment fee hereunder and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Commitment Percentages of the Lenders. Subject to Sections 2.3(e) and 2.8(d) , each payment (including each prepayment) by the Borrower on account of principal of and interest on the Loans shall be made pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders; provided that payments in respect of Swingline Loans that have not been refunded with Revolving Loans pursuant to Section 2.8(b) shall be for the account of the Swingline Lender only (subject to the Swingline Lender’s obligation to share with any participants in the Swingline Loans). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set off or counterclaim and shall be made prior to 12:00 noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders at the Administrative Agent’s Office, in Dollars and in immediately available funds (and funds received after that time shall be deemed to have been received on the next succeeding Business Day). The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt (and if such payment is received prior to 12:00 noon, on the same day) in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be.
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(b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its portion of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Lender’s portion of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from the Borrower.
(c) In the event that a Lender fails to make available after a period of three Business Days to the Administrative Agent its portion of a borrowing, the Borrower may, upon not less than five Business Days prior irrevocable written notice to the Administrative Agent, immediately terminate the Commitment of such Lender, and designate an acceptable replacement Lender (which may be one of the other Lenders) to purchase at par all of the Lender’s interests in accordance with the provisions of Section 10.6(c) . Any Lender being so replaced by the Borrower agrees to transfer its interest in this Agreement and, if applicable, its Note, to the substitute Lender pursuant to Section 10.6(c) ; provided that concurrently with such transfer, such Lender so substituted shall be paid all amounts owing to it hereunder and all costs reasonably determined by it to be attributable to such transfer. Notwithstanding the foregoing, the Lender being replaced shall not be deemed to be released from any of its rights or obligations under any Loan Document (including Section 9.7 ) for actions taken or failed to be taken by it prior to the date of such substitution. Notwithstanding any of the provisions of this Section 3.8 , this subsection shall not apply to the Swingline Loans.
3.9. Illegality . Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.12 .
3.10. Requirements of Law . (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
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(i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note or any Eurodollar Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 3.11 and changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by |
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