CREDIT AGREEMENT

 

Exhibit 10.1

Execution Copy

 

 

$282,000,000

 

CREDIT AGREEMENT

 

among

 

SYNIVERSE HOLDINGS, INC.,

 

SYNIVERSE TECHNOLOGIES, INC.

as Borrower,

 

The Several Lenders

from Time to Time Parties Hereto,

 

LEHMAN BROTHERS INC.,

as Lead Arranger and Book Manager,

 

LASALLE BANK NATIONAL ASSOCIATION,

as Syndication Agent

 

and

 

LEHMAN COMMERCIAL PAPER INC.,

as Administrative Agent

 

Dated as of February 15, 2005

 

 

 

TABLE OF CONTENTS

 

 

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CREDIT AGREEMENT , dated as of February 15, 2005, among SYNIVERSE HOLDINGS, INC., a Delaware corporation (the “ Parent ”), SYNIVERSE TECHNOLOGIES, 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 ”), LEHMAN BROTHERS INC. (“ LBI ”), as lead arranger and book manager (in such capacity, the “ Arranger ”), LASALLE BANK NATIONAL ASSOCIATION , as Syndication Agent (in such capacity, the “ Syndication Agent ”), and LEHMAN COMMERCIAL PAPER INC. (“ LCPI ”), as administrative agent (in such capacity, the “ Administrative Agent ”).

 

WITNESSETH:

 

WHEREAS, the Borrower, the Parent, SYNIVERSE HOLDINGS, LLC , a Delaware limited liability company (the “ Ultimate Parent ”), the several banks and other financial institutions or entities from time to time parties thereto (the “ Lenders ”), LBI, as advisor, lead arranger and book manager, and LCPI., as administrative agent, are parties to that certain credit agreement dated as of February 14, 2002 (as amended, supplemented, modified or restated through the date hereof, the “ Existing Credit Agreement ”).

 

WHEREAS, the Parent will consummate an initial public offering of its common equity securities, the proceeds of which shall be in an amount of least $200,000,000 and which shall occur on terms and pursuant to documentation reasonably acceptable to the Administrative Agent (the “ IPO ”);

 

WHEREAS, the Borrower is a wholly owned subsidiary of the Parent, an entity formed by certain Control Investment Affiliates of the Principal, the Other Equity Investors and Management Investors;

 

WHEREAS, the Borrower has requested that the Lenders make certain credit facilities available to the Borrower for the purposes set forth herein;

 

WHEREAS, to the extent not used to redeem the preferred stock of the Parent, the Parent will contribute the proceeds of the IPO to the Borrower (the “ Contribution ”);

 

WHEREAS, the Borrower will use the proceeds of the Tranche B Term Loans (as defined herein) and the Contribution to consummate the Redemption (as defined herein) and the Repayment (as defined herein) (such Redemption and the Repayment and the initial borrowings under this agreement, together with the IPO, the “ Transactions ”);

 

WHEREAS, the Lenders are willing to make such credit facilities available upon and subject to the terms and conditions hereinafter set forth;

 

NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:

 

SECTION 1. DEFINITIONS

 

1.1 Defined Terms . As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

 

“ Acknowledgement and Consent ”: the Acknowledgement and Consent of each Issuer (as defined in the Guarantee and Collateral Agreement) that is not also a Grantor (as defined in the Guarantee and Collateral Agreement), substantially in the form of Exhibit A to the Guarantee and Collateral Agreement.

 

“ Acquisition ”: as defined in the recitals hereto.

 

“ Act ”: as defined in Section 10.21.

 

“ Adjustment Date ”: as defined in the Pricing Grid.

 

“ Administrative Agent ”: as defined in the preamble hereto.

 

“ Affiliate ”: 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 (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

 

“ Affiliated Fund ”: with respect to any Lender that is a fund that invests (in whole or in part) in commercial loans, any other fund that invests (in whole or in part) in commercial loans and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor:

 

“ Aggregate Exposure ”: with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Credit Commitment then in effect or, if the Revolving Credit Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.

 

“ Aggregate Exposure Percentage ” with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

 

“ Aggregate Quarterly Shortfall ” as defined in Section 3(a)(iv) of the Guaranty of Wireless Revenue.

 

“ Agreement ”: this Credit Agreement, as amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

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“ Annual Shortfall ”: as defined in Section 4(a)(iii) of the Guaranty of Wireless Revenue.

 

“ Applicable Margin ”: for each Type of Loan, the rate per annum set forth under the relevant column heading below:

 

 

provided , that on and after the first Adjustment Date occurring after the completion of two full fiscal quarters of the Borrower after the Closing Date, the Applicable Margin with respect to Tranche B Term Loans, Revolving Credit Loans and Swing Line Loans will be determined pursuant to the Pricing Grid.

 

“ Application ”: an application, in such form as the Issuing Lender may specify from time to time, requesting the Issuing Lender to open a Letter of Credit.

 

“ Arranger ”: as defined in the preamble hereto.

 

“ Asset Sale ”: any Disposition of Property or series of related Dispositions of Property (excluding any such Disposition permitted by clause (f) of Section 7.8 or clause (a), (b), (c), (d) (solely to the extent set forth therein) , (f), (g), (h) or (i) of Section 7.5) which yields gross proceeds to any Loan Party (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value (as determined by the Administrative Agent in its reasonable business judgment) in the case of other non-cash proceeds) in excess of $15,000,000.

 

“ Assignee ”: as defined in Section 10.6(c).

 

“ Assignment and Acceptance ”: as defined in Section 10.6(c)

 

“ Assignor ”: as defined in Section 10.6(c).

 

“ Available Revolving Credit Commitment ”: as to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) such Revolving Credit Lender’s Revolving Credit Commitment then in effect over (b) such Revolving Credit Lender’s Revolving Extensions of Credit then outstanding; provided , that in calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s (other than the Swing Line Lender) Available Revolving Credit Commitment pursuant to Section 2.9(a), the aggregate principal amount of Swing Line Loans then outstanding shall be deemed to be zero.

 

“ Base Rate ”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. For purposes hereof: “ Prime Rate ”

 

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shall mean the prime lending rate as set forth on the British Banking Association Telerate Page 5 (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for purpose of displaying such rate), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually available. Any change in the Base Rate 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.

 

“ Base Rate Loans ”: Loans for which the applicable rate of interest is based upon the Base Rate.

 

“ Beneficial Owner ”: has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

 

“ Benefited Lender ”: as defined in Section 10.7 (a).

 

“ Board ”: the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“ Borrower ”: as defined in the preamble hereto.

 

“ Borrowing Date ”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lender(s) to make Loans hereunder.

 

“ Business Day ”: (i) for all purposes other than as covered by clause (ii) below, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.

 

“ Capital Expenditures ”: for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries provided that, for purposes of calculating compliance with Section 7.7, the following expenditures shall be excluded, without duplication: (i) expenditures made to restore or replace Property to the condition of such Property immediately prior to any damage, loss, or destruction or condemnation of such Property, to the extent such expenditure is made with, or subsequently reimbursed out of the proceeds received from any Recovery Event and (ii) expenditures made by the Borrower or any of its Subsidiaries constituting an Investment permitted by Sections 7.8(g),

 

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(m), (iii) expenditures made by the Borrower of any of its Subsidiaries as a tenant in leasehold improvements, to the extent reimbursed by the landlord and (iv) expenditures made with the proceeds of any Reinvestment Deferred Amount or proceeds of Dispositions of Property permitted by clause (f) of Section 7.8 and clauses (a), (b), (c), (d), (f), (g), (h) or (i) of Section 7.5.

 

“ Capital Lease Obligations ”: as to any Person, 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, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

 

“ Capital Stock ”: 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, rights or options to purchase any of the foregoing.

 

“ Cash Equivalents ”: (a) United States dollars; (b) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government ( provided that the full faith and credit of the United States is pledged in support of those securities), having maturities of not more than 12 months from the date of acquisition; (c) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances (or in the case of foreign Subsidiaries, the foreign equivalent) with maturities not exceeding six months and overnight bank deposits, in each case, with any lender party to the Credit Agreement or with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch Rating of “B” or better or in the case of foreign Subsidiaries, any local office of any commercial bank organized under the laws of the relevant jurisdiction or any political subdivision thereof which has a combined capital and surplus and undivided profits in excess of $500,000,000; (d) 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, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Services or Moody’s Investors Services, Inc.; (e) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b), (c) and (d) above entered into with any financial institution meeting the qualifications specified in clause (c) or (d) above or with any Lender; (f) commercial paper having the highest rating obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Rating Services and in each case maturing within 12 months after the date of acquisition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

 

“ Closing Date ”: the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied or waived, which date shall be not later than March 31, 2005.

 

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“ Code ”: the Internal Revenue Code of 1986, as amended from time to time.

 

“ Collateral ”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document, including, without limitation, the Intellectual Property Collateral.

 

“ Commitment ”: as to any Lender, the sum of the Term Loan Commitment and the Revolving Credit Commitment of such Lender.

 

“ Commitment Fee Rate ”: (i) 1/2 of 1% per annum for any fiscal quarter in which the Consolidated Leverage Ratio as of the last day of such fiscal quarter is greater than 2.50 to 1.0 and (ii) 3/8 of 1% per annum for any fiscal quarter in which the Consolidated Leverage Ratio as of the last day of such fiscal quarter is equal to or less than 2.50 to 1.00.

 

“ Commonly Controlled Entity ”: 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 that includes the Borrower and that is treated as a single employer under Section 414 of the Code or of which the Borrower is a general partner.

 

“ Compliance Certificate ”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.

 

“ Confidential Information Memorandum ”: the Confidential Information Memorandum dated January, 2005 and furnished to the initial Lenders.

 

“ Consolidated Cash Interest Expense ”: for any period, Consolidated Interest Expense for such period, excluding, without duplication, (i) any amounts not payable in cash, (ii) amortization of debt and debt issuance fees, (ii) any fees or expenses paid in connection with a Permitted Acquisition, (iii) payments made or expenses incurred to obtain Hedge Agreements, (iv) any fees or expenses paid or required to be paid pursuant to any Loan Documents, and (v) any call premiums and one-time fees or reasonable and customary expenses incurred in connection with the Redemption or any other redemption, repayment or repurchase of the Senior Subordinated Notes.

 

“ Consolidated Current Assets ”: at any date, all amounts (other than cash and Cash Equivalents) which would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Parent and its Subsidiaries at such date.

 

“ Consolidated Current Liabilities ”: at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Parent and its Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt of the Parent and its Subsidiaries, (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Credit Loans or Swing Line Loans to the extent otherwise included therein and (c) deferred revenues.

 

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“ Consolidated EBITDA ”: of any Person for any period, Consolidated Net Income of such Person and its Subsidiaries for such period plus , without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense (including, without duplication, franchise and foreign withholding taxes and any state single business unitary or similar tax), (b) Consolidated Interest Expense of such Person and its Subsidiaries, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including, in the case of the Borrower, the Loans, Letters of Credit and the Senior Subordinated Notes (including the exchange thereof pursuant to the Registration Rights Agreement)), (c) depreciation and amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, reasonable and customary fees and expenses incurred in connection with the IPO or the Transactions, reasonable and customary fees and expenses incurred in connection with a public offering of equity of the Parent, any call premiums paid in connection with the Redemption or any other redemption, prepayment or repurchase of the Senior Subordinated Notes, non-cash purchase accounting adjustments, losses on sales of assets outside of the ordinary course of business, indemnification expenditures to the extent reimbursable by third parties, transition expenses incurred in fiscal years 2004 and 2005 pursuant to the acquisition of Interoperator Services North America in an amount not to exceed $2,000,000 for fiscal year 2004 and $6,000,000 in fiscal year 2005, investment banking and legal fees and similar expenses and transition expenses in an amount not to exceed $15,000,000 in any fiscal year incurred in connection with any Permitted Acquisition , any Investment permitted pursuant to Sections 7.8(m), or severance or relocation costs) (f) any other non-cash charges (including unrealized losses on Hedge Agreements permitted hereunder and losses recognized in respect of post-retirement benefits as a result of the application of FASB 106 and non-cash foreign currency translation adjustments as a result of the application of FASB 52 and losses on ownership of minority interests in any Person), (g) proceeds received from business interruption insurance, (h) Synthetic Lease Obligations, to the extent deducted as an expense in such period and (i) up to $10,000,000 of expenses related to the relocation of certain facilities (provided such costs were incurred in fiscal year 2004, 2005 and 2006 and expensed on the income statements of the Parent or its Subsidiaries) and minus , to the extent included in the statement of such Consolidated Net Income for such period, the sum of (a) interest income, (b) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets or Investments outside of the ordinary course of business and indemnification payments received from third parties to the extent amounts paid with respect to such claims were added to Consolidated Net Income; provided however that in no case shall any income included in Consolidated Net Income from the Guaranty of Wireless Revenue be excluded pursuant to this clause (b)) and (c) any other non-cash income (including unrealized gains on Hedge Agreements, gains recognized in respect of post-retirement benefits as a result of the application of FASB 106, gains with respect to foreign currency translation as a result of the application of FASB 52 and gains on ownership of minority interests in any Person), all as determined on a consolidated basis; provided that for purposes of calculating Consolidated EBITDA of the Borrower and its Subsidiaries for any period, (i) the Consolidated EBITDA of any Person or business acquired by the Borrower or its Subsidiaries during such period shall be

 

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included on a pro forma basis for such period (assuming the consummation of such acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred on the first day of such period) if the consolidated balance sheet of such acquired Person or business 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 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 reasonably acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of any Person or business Disposed of by the Borrower or its Subsidiaries during such period shall be excluded for such period (assuming the consummation of such Disposition and the repayment of any Indebtedness in connection therewith occurred on the first day of such period). Consolidated EBITDA may be determined to give pro forma effect to expense and cost reductions, provided that such calculations are done on a basis that is permitted by Regulation S-X under the Securities Act of 1933, as amended.

 

“ Consolidated Interest Coverage Ratio ”: for any period, the ratio of (a) Consolidated EBITDA of the Parent and its Subsidiaries for such period to (b) Consolidated Cash Interest Expense of the Parent and its Subsidiaries payable in cash for such period.

 

“ Consolidated Interest Expense ”: of any Person for any period, total interest expense (including that attributable to Capital Lease Obligations) of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed by such Person with respect to letters of credit and bankers’ acceptance financing and net costs of such Person under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP, but excluding any fees and expenses payable within 90 days of the Closing Date related to the Transactions).

 

“ Consolidated Leverage Ratio ”: as at the last day of any period of four consecutive fiscal quarters, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA of the Parent and its Subsidiaries for such period.

 

“ Consolidated Net Income ”: of any Person for any period, the consolidated net income (or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided , that in calculating Consolidated Net Income of the Parent and its Subsidiaries for any period, there shall be included, without duplication, (a) with respect to the Borrower, if such period ends on one of the first three fiscal quarters of the fiscal year of the Borrower, an amount equal to the product of (i) the Aggregate Quarterly Shortfall occurring during such period, multiplied by (ii) 0.61875 and (b) with respect to any Loan Party, if such period is the fourth fiscal quarter of a fiscal year of the Borrower, an amount equal to the product of (i) the Annual Shortfall occurring during such period, multiplied by (ii) 0.825 (each of clause (a) or (b) above, the “ Guaranteed Amount ”); provided that if the actual amount paid to the Borrower with respect to such period pursuant to the Guaranty of Wireless Revenue is less than the applicable Guaranteed Amount with respect to such period, the Consolidated Net Income for such period shall be promptly restated to effect the actual amount

 

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paid to the Borrower in such period and there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions, and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.

 

“ Consolidated Total Debt ”: at any date, the accreted value of all Funded Debt of the Parent and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP.

 

“ Consolidated Working Capital ”: at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.

 

“ Continuing Directors ”: as to any Person, the directors of such Person on the Closing Date, after giving effect to the transactions contemplated hereby, and each other director, if, in each case, such other director’s nomination for election to the board of directors of such Person is recommended by at least a majority of the then Continuing Directors or such other director receives the vote of each of the shareholders of such Person (other than, in the case of the Parent, any shareholders who are Management Investors) on the Closing Date in his or her election by the shareholders of such Person.

 

“ Contractual Obligation ”: 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.

 

“ Contribution ”: as defined in the recitals.

 

“ Control Agreement ”: each Control Agreement to be executed and delivered by each Loan Party party thereto pursuant to the Guarantee and Collateral Agreement, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Control Investment Affiliate ”: as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. !

 

“ Default ”: 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.

 

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“ Defaulting Lender ”: as defined in Section 2.24.

 

“ Derivatives Counterparty ”: as defined in Section 7.6.

 

“ Disposition ”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof; and the terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.

 

“ Disqualified Stock ”: any Capital Stock or other ownership or profit interest of any Loan Party that by its terms any Loan Party is or, upon the passage of time or the occurrence of any event, may at any time prior to six months after the final scheduled maturity of the Tranche B Term Loans become obligated to redeem, purchase, retire, defease or otherwise make any payment in respect of in consideration other than Capital Stock (other than Disqualified Stock); provided that Capital Stock that would constitute Disqualified Stock solely because the holders of such Capital Stock have the right to require the issuer thereof to repurchase such Capital Stock upon the occurrence of a “change of control” shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the repurchase obligation is subject to the agreements of the Loan Parties herein and that the issuer of such Capital Stock shall have no obligation to repurchase such Capital Stock until all the Obligations have been paid in full.

 

“ Dollars ” and “ $ ”: dollars in lawful currency of the United States of America.

 

“ Domestic Subsidiary ”: any Subsidiary of the Parent organized under the laws of any jurisdiction within the United States of America.

 

“ Eligible Assignee ”: as defined in Section 10.6(c).

 

“ Environmental Laws ”: any and all laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or other legally enforceable requirements (including, without limitation, common law) of any international authority, foreign government, the United States, or any state, local, municipal or other Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health, or employee health and safety, as has been, is now, or may at any time hereafter be, in effect.

 

“ Environmental Permits ”: any and all permits, licenses, approvals, registrations, notifications, exemptions and any other authorization required under any Environmental Law.

 

“ Equity Investors ”: The Control Investment Affiliates of the Principal, the Other Equity Investors and the Management Investors.

 

“ ERISA ”: the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“ Eurocurrency Reserve Requirements ”: 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, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other

 

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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 Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject to such reserve requirements without benefit or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.

 

“ Eurodollar Base Rate ”: 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 Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Dow Jones Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Page 3750 of the Dow Jones Telerate screen (or otherwise on such screen), the “ Eurodollar Base Rate ” for purposes of this definition shall be determined by the Administrative Agent as the average of the rate of interest 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 and with an equivalent period that would be offered by Toronto Dominion (New York), Inc., UBS AG, Stamford Branch and Barclays Bank PLC to first-tier major banks in the offshore Dollar market at their request at approximately 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period.

 

“ Eurodollar Loans ”: Loans the rate of interest applicable to which is based upon the Eurodollar Rate.

 

“ Eurodollar Rate ”: 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 Tranche ”: the collective reference to Eurodollar Loans with current Interest Periods which 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).

 

“ Event of Default ”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

“ Excess Cash Flow ”: for any fiscal year of the Borrower, the excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income of the Loan Parties for such fiscal year, (ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital of the Loan Parties for such fiscal year, (iv) an amount equal to the aggregate net non-cash loss on the Disposition of Property by the Loan Parties during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income and (v) the net increase during such fiscal year (if any) in long-term deferred tax accounts of the Borrower minus (b) the sum, without

 

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duplication, of (i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income, (ii) the aggregate amount actually paid by any Loan Party in cash during such fiscal year on account of Capital Expenditures, (3) any such expenditures financed with the proceeds of any Reinvestment Deferred Amount and (4) any such expenditures financed with any amount carried over from the previous fiscal year pursuant to Section 7.7, (iii) the aggregate amount of all prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year to the extent accompanying permanent optional reductions of the Revolving Credit Commitments and all optional prepayments of Indebtedness, including the Tranche B Term Loans during such fiscal year, (iv) the aggregate amount of all regularly scheduled principal payments of Indebtedness (including, without limitation, the Tranche B Term Loans) of any Loan Party made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder such that after giving effect to such commitment reduction the applicable Loan Party would not be able to reborrow all or any of the amount so prepaid), (v) increases in Consolidated Working Capital of the Loan Parties for such fiscal year, (vi) an amount equal to the aggregate net non-cash gain on the Disposition of Property (including Dispositions consisting of Asset Sales or Recovery Events) by any Loan Party during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income, (vii) the net decrease during such fiscal year (if any) in long-term deferred tax accounts of the Borrower, (viii) cash payments made during such period in satisfaction of non-current liabilities of the Borrower and its Subsidiaries to the extent such amounts were included as non-cash charges and added back in a previous period pursuant to clause (a)(ii) above and (ix) cash payments made by the Borrower during such period permitted under Section 7.6. Notwithstanding the foregoing, any effects of the Guaranty of Wireless Revenue on the consolidated income statements or balance sheets of the Loan Parties shall not be double-counted for the purpose of calculating Excess Cash Flow

 

“ Exchange Act ”: the Securities Exchange Act of 1934, as amended.

 

“ Excluded Foreign Subsidiary ”: any Foreign Subsidiary in respect of which either (i) the pledge of all of the Capital Stock of such Subsidiary as Collateral or (ii) the guaranteeing by such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower, result in adverse tax consequences to the Loan Parties, taken as a whole; provided , however , that a Foreign Subsidiary that (1) is not directly or indirectly owned in whole or in part by a Foreign Subsidiary (unless each such Foreign Subsidiary is a pass-through entity for United States federal income tax purposes) and (2) is treated as a pass-through entity for United States federal income tax purposes shall not be an Excluded Foreign Subsidiary while so treated.

 

“ Existing Credit Agreement ”: as defined in the recitals hereto.

 

“ Facility ”: each of (a) the Tranche B Term Loan Commitments and the Tranche B Term Loans made hereunder (the “ Tranche B Term Loan Facility ”), (b) the Revolving Credit Commitments (including any Incremental Revolving Credit Commitments) and the extensions of credit made hereunder (the “ Revolving Credit Facility ”) and (c) each Incremental Term Loan made hereunder.

 

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“ Federal Funds Effective Rate ”: 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 which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

 

“ Fee Letter ”: the Fee Letter, dated January 4, 2005, among the Ultimate Parent, the Parent, the Borrower, the Administrative Agent and the Arranger, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Foreign Subsidiary ”: any Subsidiary of the Parent that is not a Domestic Subsidiary.

 

“ FQ1 ”, “ FQ2 ”, “ FQ3 ”, and “ FQ4 ”: when used with a numerical year designation, means the first, second, third or fourth fiscal quarters, respectively, of such fiscal year of the Borrower (e.g., FQ1 2005 means the first fiscal quarter of the Borrower’s 2005 fiscal year, which ends December 31, 2005).

 

“ Funded Debt ”: as to any Person, all Indebtedness of such Person of the types described in clauses (a) through (e) of the definition of “Indebtedness” in this Section; provided that Indebtedness incurred pursuant to Section 7.2(g) shall be excluded from the definition of Funded Debt.

 

“ Funding Office ”: the office specified from time to time by the Administrative Agent as its funding office by notice to the Borrower and the Lenders.

 

“ GAAP ”: generally accepted accounting principles in the United States of America as in effect from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements delivered pursuant to Section 4.1(b).

 

“ Governing Documents ”: collectively, as to any Person, the articles or certificate of incorporation and bylaws, any shareholders agreement, certificate of formation, limited liability company agreement, partnership agreement or other formation or constituent documents of such Person.

 

“ Governmental Authority ”: 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.

 

“ Guarantee and Collateral Agreement ”: the Guarantee and Collateral Agreement to be executed and delivered by the Parent, the Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

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“ Guarantee Obligation ”: as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either 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, without limitation, 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 , however , 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.

 

“ Guarantors ”: the collective reference to the Parent and the Subsidiary Guarantors.

 

“ Guaranty of Wireless Revenue ”: the Guaranty of Wireless Revenue dated February 14, 2002 by and between Verizon Information Services Inc. and the Borrower, and all exhibits and annexes thereto, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Hedge Agreements ”: all interest rate swaps, caps or collar agreements or similar arrangements entered into by the Parent or any of its Subsidiaries providing for protection against fluctuations in interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.

 

“ Incremental Effective Date ”: as defined in Section 2.26.

 

“ Incremental Lender Addendum ”: as defined in Section 2.26.

 

“ Incremental Revolving Credit Commitment ”: as defined in Section 2.26.

 

“ Incremental Revolving Credit Lender ”: as defined in Section 2.26.

 

“ Incremental Revolving Credit Loans ”: as defined in Section 2.26.

 

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“ Incremental Term Loan ” as defined in Section 2.26.

 

“ Incremental Term Loan Lender ”: as defined in Section 2.26.

 

“ Incremental Term Loan Maturity Date ”: the date that the Incremental Term Loan of a Series shall become due and payable in full hereunder, as specified in the applicable Lender Addendum, including by acceleration or otherwise.

 

“ Incremental Term Loan Percentage ”: with respect to each Series of Incremental Term Loans, the percentage which the aggregate principal amount of such Lender’s Incremental Term Loans under such Series then outstanding constitutes of the aggregate principal amount of the Incremental Term Loans under such Series then outstanding.

 

“ Indebtedness ”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than trade payables and accrued expenses incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments and, with respect to the Borrower, all obligations arising under the Guaranty of Wireless Revenue regardless of whether evidenced by a note or similar instrument, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property), (e) all Capital Lease Obligations or Synthetic Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptance, letter of credit or similar facilities, (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above; (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (j) for the purposes of Section 8(e) only, all obligations of such Person in respect of Hedge Agreements and (k) the liquidation value of any Disqualified Stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly Owned Subsidiaries; provided that (i) Indebtedness shall not include any earn-out obligations and (ii) the amount of any Indebtedness (or portion thereof) which is Non-Recourse Indebtedness or limited to the obligor thereunder and for which recourse is limited to an identified asset, shall be equal to the lesser of (A) the limited amount of such obligor’s obligation and (B) the fair market value of such asset. The amount of any Indebtedness under clause (j) shall be the net amount, including any net termination payments, that would be required to be paid to a counterparty on such date if a termination of the applicable Hedge Agreement were to occur on such date, rather than the notational amount of the applicable Hedge Agreement. Notwithstanding anything herein to the contrary, “Indebtedness” shall not include the any of the preferred stock of the Parent issued on the Closing Date or permitted to be issued hereunder.

 

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“ Indemnified Liabilities ”: as defined in Section 10.5.

 

“ Indemnitee ”: as defined in Section 10.5.

 

“ Insolvency ”: 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.

 

“ Intellectual Property ”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, state, multinational or foreign laws or otherwise, including, without limitation, copyrights, patents, trademarks (and related goodwill), service-marks (and related goodwill), trade names, technology, know-how and processes, recipes, formulas, trade secrets, or licenses (under which the applicable Person is licensor or licensee) relating to any of the foregoing and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

 

“ Intellectual Property Agreement ”: the Intellectual Property Agreement dated February 14, 2002 by and among Verizon Information Services Inc., Verizon Communications Inc. and the Borrower, and all schedules thereto, as the same may be amended, supplemented replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Intellectual Property Collateral ”: all Intellectual Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by the Intellectual Property Security Agreement or the Guarantee and Collateral Agreement.

 

“ Intellectual Property Security Agreement ”: Each Intellectual Property Security Agreement to be executed and delivered by a Loan Party and any After Acquired Intellectual Property Security Agreement executed by a Loan Party, substantially in the form of Exhibit B-1 or B-2, respectively, to the Guarantee and Collateral Agreement, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Interest Payment Date ” (a) as to any Base Rate 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 which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Loan that is a Base Rate Loan (unless all Revolving Credit Loans are being repaid in full in immediately available funds and the Revolving Credit Commitments terminated) and any Swing Line Loan), the date of any repayment or prepayment made in respect thereof.

 

“ Interest Period ”: 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

 

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and ending one, two, three, six or nine 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, six or nine 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 less than 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:

 

(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) any Interest Period that would otherwise extend beyond the Scheduled Revolving Credit Termination Date or beyond the date final payment is due on the Term Loans, as the case may be, shall end on the Revolving Credit Termination Date or such due date, as applicable; 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.

 

“ Investments ”: as defined in Section 7.8.

 

“ IPO ”: as defined in the recitals.

 

“ Issuing Lender ”: a bank to be chosen by the Borrower and the Administrative Agent, in its capacity as issuer of any Letter of Credit.

 

“ L/C Commitment ”: $15,000,000.

 

“ L/C Fee Payment Date ”: the last day of each March, June, September and December and the last day of the Revolving Credit Commitment Period.

 

“ L/C Obligations ”: at any time, an amount equal to the sum of, without duplication, (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.

 

“ L/C Participants ”: the collective reference to all the Revolving Credit Lenders other than the Issuing Lender.

 

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“ Lehman Entity ”: any of Lehman Commercial Paper Inc. or any of its affiliates (including, without limitation, Syndicated Loan Funding Trust).

 

“ Lender Addendum ”: with respect to any Lender, a Lender Addendum, substantially in the form of Exhibit H.

 

“ Lenders ”: as defined in the preamble hereto and includes the Issuing Lender.

 

“ Letters of Credit ”: as defined in Section 3.1(a).

 

“ Lien ”: any mortgage, pledge, hypothecation, assignment, security 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, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

 

“ Loan ”: any loan made by any Lender pursuant to this Agreement (including, without limitation, any Incremental Term Loan and any Incremental Revolving Credit Loan).

 

“ Loan Documents ”: this Agreement, the Security Documents, the Applications, the Post Closing Letter Agreement and the Notes.

 

“ Loan Parties ”: the Parent, the Borrower and each Subsidiary of the Parent which is a party to a Loan Document (including pursuant to Section 6.10).

 

“ Majority Facility Lenders ”: with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Credit Facility, prior to any termination of the Revolving Credit Commitments, the holders of more than 50% of the Total Revolving Credit Commitments).

 

“ Majority Revolving Credit Facility Lenders ”: the Majority Facility Lenders in respect of the Revolving Credit Facility.

 

“ Management Investors ”: Edward Evans, Raymond Lawless, Mike O’Brien, Robert Garcia, and all other individuals who hold Capital Stock on the Closing Date.

 

“ Material Adverse Effect ”: a material adverse condition or a material adverse change in or affecting (a) the condition (financial or otherwise), results of operations, assets liabilities or prospects of the Loan Parties taken as a whole, (b) the validity or enforceability of this Agreement or any of the other Loan Documents, (c) the validity, enforceability or priority of the Liens purported to be created by the Security Documents or (d) the rights or remedies of any Secured Party hereunder or under any of the other Loan Documents.

 

“ Material Software ”: the “Business Software” as defined in the Intellectual Property Agreement.

 

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“ Materials of Environmental Concern ”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactivity, and any other toxic or hazardous substances of any kind, that is regulated pursuant to or could give rise to liability under any Environmental Law.

 

“ Mortgages ”: any and all mortgages and/or deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, in a form as may be reasonably agreed to by the Administrative Agent and the Loan Parties party thereto, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Multiemployer Plan ”: a Plan that is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

 

“ Net Cash Proceeds ”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Asset Sale or Recovery Event, net of reasonable and customary attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness (together with any accrued and unpaid interest thereon, premium or penalty or other amount payable with respect thereto) secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other reasonable and customary fees and expenses, in each case, to the extent actually incurred in connection therewith and net of (i) taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (ii) solely in connection with any such Asset Sale, any reserve established in accordance with GAAP or amounts deposited in escrow for adjustment in respect of the sale price of such asset or assets or for indemnities with respect to any Asset Sale, provided that any such reserved or escrowed amounts shall be Net Cash Proceeds to the extent and at the time released to a Loan Party or not required to be so used and (b) in connection with any issuance or sale of equity securities or debt securities or instruments or the incurrence of loans, the cash proceeds received from such issuance or incurrence, net of reasonable and customary attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other reasonable and customary fees and expenses, in each case, to the extent actually incurred in connection therewith.

 

“ Non-Excluded Taxes ”: as defined in Section 2.20(a).

 

“ Non-Recourse Indebtedness ”: Indebtedness as to which neither the Parent nor any of its Subsidiaries: (1)(a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness or the pledge of any collateral), (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender; (2) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against a Subsidiary) would permit upon notice, lapse of time or both any

 

19

holder of any other Indebtedness (other than the Indebtedness incurred hereunder) of the Parent or any of its Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (3) as to which the lenders thereof have been notified in writing that they will not have any recourse to the stock or assets of the Parent or any of its Subsidiaries.

 

“ Non-U.S. Lender ”: as defined in Section 2.20(f).

 

“ Notes ”: the collective reference to the Revolving Credit Notes, the Term Notes and the Swing Line Notes, if any, evidencing Loans.

 

“ Notice of Borrowing ”: a certificate duly executed by a Responsible Officer of the Borrower substantially in the form of Exhibit K.

 

“ Obligations ”: the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the 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 any Loan Party, 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 Loan Parties to the Arranger, to the Administrative Agent or to any Lender (or, in the case of Specified Hedge 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 Hedge 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, without limitation, all fees, charges and disbursements of counsel to the Arranger, to the Administrative Agent or to any Lender that are required to be paid by any Loan Party pursuant hereto or to any other Loan Document) or otherwise; provided , that (i) Obligations of any Loan Party under any Specified Hedge Agreement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements.

 

“ OID ”: as defined in Section 2.26.

 

“ Other Equity Investors ”: investors in the Parent, other than certain Control Investment Affiliates of the Principal and the Management Investors, selected by the Principal and reasonably acceptable to the Administrative Agent, including Snowlake Investment Pte Ltd.

 

“ Other Taxes ”: 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 hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

“ Parent ”: as defined in the preamble hereto.

 

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“ Parent ”: as defined in the preamble hereto.

 

“ Participant ”: as defined in Section 10.6(b).

 

“ Payment Amount ”: as defined in Section 3.5.

 

“ Payment Office ”: the office of the Administrative Agent specified in Section 10.2 or as otherwise specified from time to time by the Administrative Agent as its payment office by notice to the Borrower and the Lenders.

 

“ PBGC ”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

 

“ Permits ”: the collective reference to any and all franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, easements, rights of way, Liens and other rights, privileges and approvals required under any Requirement of Law other than Environmental Permits.

 

“ Permitted Acquisition ”: as defined in Section 7.8(g).

 

“ Permitted Capital Expenditure Amount ”: $35,000,000; provided , that, following any Permitted Acquisition, such amount shall be increased by an amount equal to the amount permitted prior to such Permitted Acquisition (including all prior such increases) multiplied by the quotient of the total revenues of the acquired entity for the previous fiscal year divided by the total revenues of the Borrower and its Subsidiaries for the previous fiscal year.

 

“ Permitted Liens ”: the collective reference to (i) in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3 and (ii) in the case of Collateral consisting of Pledged Stock, non-consensual Liens permitted by Section 7.3 to the extent arising by operation of law.

 

“ Person ”: 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 ”: at a particular time, any employee benefit plan that is covered by ERISA and which the Borrower (or, with respect to any Single Employer Plan or Multiemployer Plan, any Commonly Controlled Entity) maintains, administers, contributes to or is required to contribute to or under which the Borrower (or, with respect to any Single Employer Plan or Multiemployer Plan, any Commonly Controlled Entity) could incur any liability.

 

“ Pledged Stock ”: as defined in the Guarantee and Collateral Agreement.

 

“ Post Closing Letter Agreement ”: the Post Closing Letter Agreement dated as of the date hereof by the Borrower in favor of the Administrative Agent, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

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“ Pricing Grid ”: the pricing grid attached hereto as Annex A.

 

“ Principal ”: GTCR Golder Rauner, L.L.C.

 

“ Professional Services Agreement ”: the Professional Services Agreement between the Principal and the Borrower dated as of February 14, 2002, as the same may be amended, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Pro Forma Balance Sheet ”: as defined in Section 4.1(a).

 

“ Projections ”: as defined in Section 6.2(c).

 

“ Property ”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

 

“ Purchase Agreement ”: the Purchase Agreement, dated February 5, 2002, between the Parent and its subsidiaries and Lehman Brothers Inc.

 

“ Recovery Event ”: 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.

 

“ Redemption ”: the prepayment of a portion of the Senior Subordinated Notes.

 

“ Redemption Shortfall ”: $85,750,000 less the amount by which the Parent has prepaid of a portion of the Senior Subordinated Notes on or prior to the forty-fifth (45 ^th ) day following the Closing Date.

 

“ Refunded Swing Line Loans ”: as defined in Section 2.7(b).

 

“ Refunding Date ”: as defined in Section 2.7(c).

 

“ Register ”: as defined in Section 10.6(d).

 

“ Registration Rights Agreement ”: the Registration Rights Agreement, dated February 14, 2002, between the Borrower and Lehman Brothers Inc.

 

“ Regulation D ”: Regulation D of the Board as in effect from time to time (and any successor to all or a portion thereof).

 

“ Regulation T ”: Regulation T of the Board as in effect from time to time (and any successor to all or a portion thereof).

 

“ Regulation U ”: Regulation U of the Board as in effect from time to time (and any successor to all or a portion thereof).

 

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“ Regulation X ”: Regulation X of the Board as in effect from time to time (and any successor to all or a portion thereof).

 

“ Reimbursement Obligation ”: the obligation of the Borrower to reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.

 

“ Reinvestment Deferred Amount ”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Loan Party in connection therewith that are not applied to prepay the Term Loans or reduce the Revolving Credit Commitments pursuant to Section 2.12(b) as a result of the delivery of a Reinvestment Notice.

 

“ Reinvestment Event ”: any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.

 

“ Reinvestment Notice ”: a written notice executed by a Responsible Officer of the Borrower stating that no Default or Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Wholly Owned Subsidiary to the extent otherwise permitted hereunder) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its or such Subsidiary’s business; provided that notwithstanding the foregoing, the Borrower may submit a Reinvestment Notice with respect to the Net Cash Proceeds of a Recovery Event if a Default or Event of Default exists, if all such Net Cash Proceeds (or a specified portion thereof) are held in a cash collateral account, established with the Administrative Agent pending the acquisition of such assets.

 

“ Reinvestment Prepayment Amount ”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.

 

“ Reinvestment Prepayment Date ”: with respect to any Reinvestment Event, the earlier of (a) the date occurring one year after receipt of the proceeds giving rise to such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire assets useful in the Borrower’s or the applicable Subsidiary’s business with all or any portion of the relevant Reinvestment Deferred Amount.

 

“ Reorganization ”: with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

 

“ Repayment ”: the repayment in full in cash all loans and other obligations under the Existing Credit Agreement at the termination thereof.

 

“ Reportable Event ”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. Section 4043.

 

“ Required Lenders ”: at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments and (b) thereafter, the sum of (i) the aggregate unpaid principal

 

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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 Extensions of Credit then outstanding.

 

“ Requirement of Law ”: as to any Person, the Governing Documents of such Person, and 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 ”: as to any Person, the chief executive officer, president, vice-president or chief financial officer of such Person, but in any event, with respect to financial matters, the chief financial officer or any other executive officer of such Person having responsibility for the administration of the obligations in respect of this Agreement of such Person. Unless otherwise qualified, all references to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.

 

“ Restricted Payments ”: as defined in Section 7.6.

 

“ Revolving Credit Commitment ”: as to any Lender, the obligation of such Lender, if any, to make Revolving Credit Loans and/or participate in Swing Line 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 1 to the Lender Addendum delivered by such Lender, or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto, or, as the case may be, in the Incremental Lender Addendum with respect to an Incremental Revolving Credit Commitment of such Lender, in each case as the same may be changed from time to time pursuant to the terms hereof.

 

“ Revolving Credit Commitment Period ”: the period from the Closing Date to the Revolving Credit Termination Date.

 

“ Revolving Credit Lender ”: each Lender that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.

 

“ Revolving Credit Loans ”: as defined in Section 2.4, and shall include any Incremental Revolving Credit Loans.

 

“ Revolving Credit Notes ”: as defined in Section 2.8(e).

 

“ Revolving Credit Percentage ”: as to any Revolving Credit Lender at any time, the percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or terminated, the percentage which the aggregate principal and/or face amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate principal and/or face amount of the Total Revolving Extensions of Credit then outstanding).

 

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“ Revolving Credit Termination Date ”: the Scheduled Revolving Credit Termination Date.

 

“ Revolving Extensions of Credit ”: as to any Revolving Credit Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (b) such Lender’s Revolving Credit Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Credit Percentage of the aggregate principal amount of Swing Line Loans then outstanding.

 

“ Scheduled Revolving Credit Termination Date ”: the sixth anniversary of the Closing Date.

 

“ SEC ”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

 

“ Secured Parties ”: collectively, the Arranger, the Administrative Agent, the Lenders and, with respect to any Specified Hedge Agreement, any affiliate of any Lender (or any Person that was a Lender or affiliate thereof when such Hedge Agreement was entered into) party thereto that has agreed to be bound by the provisions of Section 7.2 of the Guarantee and Collateral Agreement as if it were a party thereto and by the provisions of Section 9 hereof as if it were a Lender party hereto.

 

“ Security Documents ”: the collective reference to the Guarantee and Collateral Agreement, the Intellectual Property Security Agreements, the Control Agreements, the Mortgages and all other pledge and security documents hereafter delivered to the Administrative Agent granting a Lien on any Property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.

 

“ Senior Subordinated Note Documentation ”: the Senior Subordinated Note Indenture, the Purchase Agreement, the Registration Rights Agreement, together with any other instruments and agreements entered into by any Loan Party in connection therewith (other than the Loan Documents), as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Senior Subordinated Note Indenture ”: the Indenture, dated as of February 14, 2002, entered into by the Parent, the Borrower and its Subsidiaries in connection with the issuance of the Senior Subordinated Notes, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Senior Subordinated Notes ”: the subordinated notes of the Borrower due 2012, issued from time to time pursuant to the Senior Subordinated Note Indenture.

 

“ Series ”: as defined in Section 2.26.

 

“ Services Agreement ”: the collective reference to (i) the Distributed Processing Services Agreement and the Mainframe Computing Services Agreement, each as between TSI and Verizon Information Technologies Inc. and dated as of February 14, 2002 and (ii) the

 

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Information Technologies Services Agreement between TSI and Lockheed Martin Global Telecommunications, dated as of December 19, 2001 as each of the same may be amended from time to time in accordance with this Agreement.

 

“ Single Employer Plan ”: any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

 

“ Solvency Certificate ”: the Solvency Certificate to be executed and delivered by the chief financial officer of each Loan Party, substantially in the form of Exhibit I, as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement.

 

“ Solvent ”: when used with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the “present fair saleable value” (as such term is defined in clause (a)) of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, (d) such Person will be able to pay its debts as they mature, and (e) such Person is not insolvent within the meaning of any applicable Requirements of Law. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured; provided that, for purposes of this definition, in computing the amount of any contingent, unliquidated, unmatured or disputed claim at any time, it is intended that such claims will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual, liquidated or matured claim.

 

“ Specified Change of Control ”: a “change of control” or similar event (howsoever defined) as defined in the Senior Subordinated Note Indenture.

 

“ Specified Hedge Agreement ”: any Hedge Agreement (a) entered into by (i) any Loan Party and (ii) any Lender or any affiliate thereof, or any Person that was a Lender or an affiliate thereof when such Hedge Agreement was entered into, as counterparty and (b) which has been designated by such Lender and the Borrower, by notice to the Administrative Agent not later than 90 days after the execution and delivery thereof by any such Loan Party as a Specified Hedge Agreement; provided that the designation of any Hedge Agreement as a Specified Hedge Agreement shall not create in favor of any Lender or affiliate thereof that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Guarantee and Collateral Agreement.

 

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“ Subordinated Intercompany Note ”: the Intercompany Subordinated Demand Promissory Note to be executed and delivered by each Loan Party, substantially in the form of Exhibit J, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.

 

“ Subsidiary ”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests 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 or other entity are 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 Guarantor ”: each Subsidiary of the Parent other than any Excluded Foreign Subsidiary and the Borrower.

 

“ Swing Line Commitment ”: the obligation of the Swing Line Lender to make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to exceed $5,000,000.

 

“ Swing Line Lender ”: such Lender (in its capacity as the lender of Swing Line Loans) as may be appointed by the Administrative Agent with the consent of the Borrower.

 

“ Swing Line Loans ”: as defined in Section 2.6.

 

“ Swing Line Notes ”: as defined in Section 2.8(e).

 

“ Swing Line Participation Amount ”: as defined in Section 2.7(c).

 

“ Syndication Agent ”: as defined in the recitals.

 

“ Syndication Date ”: the date which is 90 days after the Closing Date or such earlier date that the Administrative Agent determines the syndication is complete.

 

“ Synthetic Lease Obligations ”: all 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 which do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the Indebtedness of such Person (without regard to accounting treatment).

 

“ Term Loans ” the Tranche B Term Loans and any Incremental Term Loans.

 

“ Term Notes ”: as defined in Section 2.8(e).

 

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“ Total Revolving Credit Commitments ”: at any time, the aggregate amount of the Revolving Credit Commitments then in effect; provided , that the amount of the Total Revolving Credit Commitments on the Closing Date shall be $42,000,000.

 

“ Total Revolving Extensions of Credit ”: at any time, the aggregate amount of the Revolving Extensions of Credit of the Revolving Credit Lenders outstanding at such time.

 

“ Tranche B Term Loan ”: as defined in Section 2.1

 

“ Tranche B Term Loan Commitment ”: as to any Tranche B Term Loan Lender, the obligation of such Lender, if any, to make a Tranche B Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth under the heading “Tranche B Term Loan Commitment” opposite such Lender’s name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof; provided that the original aggregate amount of the Tranche B Term Loan Commitments is $240,000,000.

 

“ Tranche B Term Loan Lender ”: each Lender that has a Tranche B Term Loan Commitment or which is the holder of an Tranche B Term Loan.

 

“ Tranche B Term Loan Maturity Date ”: the seventh anniversary of this Agreement (or such earlier date as provided in Section 2.3).

 

“ Tranche B Term Loan Percentage ”: as to any Tranche B Term Loan Lender at any time, the percentage which such Lender’s Tranche B Term Loan Commitment then constitutes of the aggregate Tranche B Term Loan Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender’s Tranche B Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche B Term Loans then outstanding).

 

“ Transactions ”: as defined in the recitals hereto.

 

“ Transferee ”: as defined in Section 10.14.

 

“ Type ”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.

 

“ UCC ”: the Uniform Commercial Code as in effect in any jurisdiction from time to time.

 

“ Ultimate Parent ”: as defined in the recitals hereto.

 

“ Wholly Owned Subsidiary ”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

 

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1.2 Other Definitional Provisions.

 

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to any Loan Party not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.

 

(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

(e) The expressions “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to the Borrower Obligations or the Guarantor Obligations shall mean the unconditional, final and irrevocable payment in full, in immediately available funds, of all of the Borrower Obligations or the Guarantor Obligations, as the case may be (other than Obligations in respect of any Specified Hedge Agreement and unmatured contingent reimbursement and indemnification Obligations).

 

(f) The words “including” and “includes” and words of similar import when used in this Agreement shall not be limiting and shall mean “including without limitation” or “includes without limitation”, as the case may be.

 

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

 

2.1 Tranche B Term Loan Commitments. (a) Subject to the terms and conditions hereof, each Tranche B Term Loan Lender severally agrees to make a term loan (a “Tranche B Term Loan”) to the Borrower on the Closing Date in an amount not to exceed the amount of the Tranche B Term Loan Commitment of such Lender. The Tranche B Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.

 

2.2 Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the anticipated Closing Date) requesting that the Tranche B Term Loan Lenders make the Tranche B Term Loans on the Closing Date and specifying the amount to be borrowed. The Tranche B Term Loans made on the Closing Date shall initially be Base Rate Loans, and no Tranche B Term Loan may be converted into or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the Syndication Date. Upon receipt of such notice the Administrative Agent shall promptly notify each Tranche B Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing Date each Tranche B Term Loan

 

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Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Tranche B Term Loan to be made by such Lender. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the Tranche B Term Loan Lenders in like funds.

 

2.3 Repayment of Tranche B Term Loans. (a) The Tranche B Term Loan of each Tranche B Term Loan Lender shall mature in 28 consecutive quarterly installments, commencing on March 31, 2005, each of which shall be in an amount equal to such Lender’s Tranche B Term Loan Percentage multiplied by the amount set forth below opposite such installment; provided that to the extent that a portion of such Tranche B Term Loans are prepaid pursuant to Section 2.11 or 2.12, the amounts set forth below shall be reduced to reflect the actual application of such prepayments as provided in Section 2.11 or 2.12, as applicable; provided further, that if, on the date that is 91 days prior to the maturity date of the Borrower’s Senior Subordinated Notes as in effect on the Closing Date (the “Test Date”), such Senior Subordinated Notes have not been refinanced or repaid in full, the Tranche B Term Loans will be immediately due and payable in full the Test Date and the “Tranche B Term Loan Maturity Date” shall be deemed to be the test date.

 

 

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2.4 Revolving Credit Commitments . (a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally agrees to make revolving credit loans (“ Revolving Credit Loans ”) to the Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Credit Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swing Line Loans then outstanding, does not exceed the amount of such Lender’s Revolving Credit Commitment. During the Revolving Credit Commitment Period the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Scheduled Revolving Credit Termination Date.

 

(b) The Borrower shall repay all outstanding Revolving Credit Loans on the Revolving Credit Termination Date.

 

2.5 Procedure for Revolving Credit Borrowing . The Borrower may borrow under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice in a Notice of Borrowing (which Notice of Borrowing must be received by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of Base Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar Loans, the length of the initial Interest Period therefor. Any Revolving Credit Loans made on the first day of the Revolving Credit Commitment Period shall initially be Base Rate Loans, and no Revolving Credit Loan may be made as, converted into or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the Syndication Date. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a $250,000 multiple in excess thereof (or, if the then aggregate Available Revolving Credit Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a $500,000 multiple in excess thereof; provided that the Swing Line Lender may request, on behalf of the Borrower, borrowings under the Revolving Credit Commitments which are Base Rate Loans in other amounts pursuant to Section 2.7. Upon receipt of any such Notice of Borrowing from the Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving Credit 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 Funding Office prior to 12:00 Noon, 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

 

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to the Borrower by the Administrative Agent in like funds as received by the Administrative Agent.

 

2.6 Swing Line Commitment . (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make a portion of the credit otherwise available to the Borrower under the Revolving Credit Commitments from time to time during the Revolving Credit Commitment Period by making swing line loans (“ Swing Line Loans ”) to the Borrower; provided that (i) the aggregate principal amount of Swing Line Loans outstanding at any time shall not exceed the Swing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at any time, when aggregated with the Swing Line Lender’s other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in effect) and (ii) the Borrower shall not request, and the Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to the making of such Swing Line Loan, the aggregate amount of the Available Revolving Credit Commitments would be less than zero. During the Revolving Credit Commitment Period, the Borrower may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only.

 

(b) The Borrower shall repay all outstanding Swing Line Loans on the Revolving Credit Termination Date.

 

2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans . (a) Whenever the Borrower desires that the Swing Line Lender make Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender 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 Revolving Credit Commitment Period). Each borrowing under the Swing Line Commitment shall be in an amount equal to $250,000 or a $100,000 multiple of in excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing Line Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swing Line Loan to be made by the Swing Line Lender. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower on such Borrowing Date in immediately available funds.

 

(b) The Swing Line Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf), on one Business Day’s notice given by the Swing Line Lender no later than 1:00 P.M., New York City time to the Revolving Credit Lenders and the Borrower, request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan, in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the “ Refunded Swing Line Loans ”) outstanding on the date of such notice, to repay the Swing Line Lender. Each Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day after the date of such notice. The proceeds

 

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of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to the Swing Line Lender for application by the Swing Line Lender to the repayment of the Refunded Swing Line Loans. The Borrower irrevocably authorizes the Swing Line 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 Swing Line Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full such Refunded Swing Line Loans and the Administrative Agent agrees to promptly notify the Borrower after any such charge, provided that the failure to give such notice shall not affect the validity of such charge and payment.

 

(c) If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 2.7(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 Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in Section 2.7(b) (the “ Refunding Date ”), purchase for cash an undivided participating interest in the then outstanding Swing Line Loans by paying to the Swing Line Lender an amount (the “ Swing Line Participation Amount ”) equal to (i) such Revolving Credit Lender’s Revolving Credit Percentage times (ii) the sum of the aggregate principal amount of Swing Line Loans then outstanding which were to have been repaid with such Revolving Credit Loans.

 

(d) Whenever, at any time after the Swing Line Lender has received from any Revolving Credit Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender receives any payment on account of the Swing Line Loans, the Swing Line Lender will distribute to such Revolving Credit Lender its Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Revolving Credit Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided , however , that in the event that such payment received by the Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender.

 

(e) Each Revolving Credit Lender’s obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of 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 the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

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(f) If the Issuing Lender notifies the Borrower of a draft presented under any Letter of Credit (and paid by the Issuing Lender) after 1:00 PM on any given day, the Swing Line Lender will use commercially reasonable efforts to fund a Swing Line Loan on such day.

 

2.8 Repayment of Loans; Evidence of Indebtedness . (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Revolving Credit Lender or Tranche B Term Loan Lender, as the case may be, (i) the then unpaid principal amount of each Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8), (ii) the then unpaid principal amount of each Swing Line Loan of such Swing Line Lender on the Revolving Credit Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8) and (iii) the principal amount of each Tranche B Term Loan of such Tranche B Term Loan Lender in installments according to the amortization schedule set forth in Section 2.3 (or on such 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 2.15.

 

(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, on behalf of the Borrower, 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 of each Loan made hereunder and any Note evidencing such Loan, the Type thereof and each Interest Period, if any, 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) both 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 2.8(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 , however , 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 such 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 execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans, Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender, substantially in the forms of Exhibit F-1, F-2 or F-3, respectively, with appropriate insertions as to date and principal amount (such notes, respectively, “ Term Notes ”, “ Revolving Credit Notes ” and “ Swing Line Notes ”).

 

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2.9 Commitment Fees, etc . (a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (other than any Defaulting Lender) a commitment fee for the period from and including the Closing Date to but excluding the last day of the Revolving Credit Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Credit 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 Revolving Credit Termination Date, commencing on the first of such dates to occur after the date hereof.

 

(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates from time to time agreed to in writing by the Borrower and the Administrative Agent including, without limitation, pursuant to the Fee Letter.

 

2.10 Termination or Reduction of Revolving Credit Commitments . The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans and Swing Line Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a $250,000 multiple in excess thereof, and shall reduce permanently the Revolving Credit Commitments then in effect.

 

2.11 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 delivered to the Administrative Agent at least three Business Days prior thereto in the case of Eurodollar Loans and at least one Business Day prior thereto in the case of Base Rate Loans, which notice shall (i) designate whether the Borrower is prepaying Swing Line Loans, Revolving Credit Loans and/or Term Loans and (ii) specify the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided , that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant 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 (except in the case of Loans (unless all Revolving Credit Loans are being repaid and the Revolving Credit Commitments terminated) that are Base Rate Loans and Swing Line Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans shall be in an aggregate principal amount of $1,000,000 or a $250,000 multiple in excess thereof. Partial prepayments of Swing Line Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof.

 

2.12 Mandatory Prepayments . (a) Unless the Required Lenders shall otherwise agree, if after the Closing Date any Funded Debt shall be incurred, by any Loan Party (excluding any Funded Debt incurred in accordance with Section 7.2 as in effect on the date of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the

 

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date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.12(c).

 

(b) Unless the Required Lenders shall otherwise agree, if, on any date, any Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.12(c); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $50,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.12(c).

 

(c) Subject to Section 2.18, amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied, first , to the prepayment of the Term Loans and second , to the Borrower or such other Person as shall be lawfully entitled thereto. The application of any prepayment pursuant to Section 2.11 or this Section 2.12 shall be made, first , to Base Rate Loans and, second , to Eurodollar Loans, in each case in a manner which, in the Administrative Agent’s reasonable judgment (which shall be conclusive) minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Loans under Section 2.11 and this Section 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are Base Rate Loans and Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid.

 

2.13 Conversion and Continuation Options . (a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent at least two Business Days’ prior irrevocable notice 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 Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election (which notice shall specify the length of the initial Interest Period therefor), provided that no Base Rate Loan under a particular Facility (i) may be converted into a Eurodollar Loan with an Interest Period in excess of one month when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions or (ii) may be converted into a Eurodollar Loan after the date that is one month prior to the final scheduled termination or maturity date of such Facility. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice 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,

 

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provided that no Eurodollar Loan under a particular Facility (i) may be continued as such with an Interest Period in excess of one month when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuation or (ii) may be continued as such after the date that is one month prior to the final scheduled termination or maturity date of such Facility, and provided , further , that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

 

2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches . Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of Eurodollar Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $1,000,000 or a $500,000 multiple in excess thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any one time.

 

2.15 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 Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin.

 

(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum that is equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2.0% or (y) in the case of Reimbursement Obligations, the rate applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the relevant Facility plus 2.0% (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until but excluding the date such overdue amount is paid in full (after as well as before judgment).

 

(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.

 

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2.16 Computation of Interest and Fees . (a) Interest, fees and commissions payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements 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 relevant Lenders of the effective date and the amount of each such change in interest rate.

 

(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, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.15(a).

 

2.17 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 Majority Facility Lenders in respect of the relevant Facility 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 such Lenders) of making or maintaining their affected Loans during such Interest Period,

 

the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on the last day of the then current Interest Period with respect thereto, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans.

 

2.18 Pro Rata Treatment and Payments . (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Loan Percentages, Incremental Term Loan Percentages or Revolving

 

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Credit Percentages, as the case may be, of the relevant Lenders. Subject to Section 2.18(c), each payment (other than prepayments as set forth in Sections 2.18 (b) or (c)) in respect of principal or interest in respect of the Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first , to Base Rate Loans and, second , to Eurodollar Loans.

 

(b) Each optional prepayment of the Term Loans made pursuant to Section 2.11 and each mandatory prepayment required by Section 2.12 shall be allocated among the Term Loan Lenders holding such Term Loans pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied to the installments of such Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts prepaid on account of the Term Loans may not be reborrowed.

 

(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in connection with any Letter of Credit shall be made to the Issuing Lender.

 

(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(e) 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 share 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 Effective 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

 

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with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.

 

(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment being made hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days of such required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

 

2.19 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:

 

(i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any Application 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 2.20 and changes in the rate of tax or taxes on the overall net income of such Lender by the jurisdiction under the laws of which such Lender is organized or in which such Lender has its principal office or the applicable lending office);

 

(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, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Eurodollar Rate hereunder; or

 

(iii) shall impose on such Lender any other condition;

 

and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable by such Lender hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its written demand (which shall include the certificate described in Section 2.19(c)), any additional amounts necessary to compensate such Lender on an after-tax basis for such increased cost or reduced amount receivable. If any Lender becomes

 

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entitled to claim any additional amounts pursuant to this Section, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.

 

(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor (which shall include the certificate described in Section 2.19(c)), the Borrower shall pay to such Lender within 15 days of receipt of such notice such additional amount or amounts as will compensate such Lender on an after-tax basis for such reduction.

 

(c) A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy to the Administrative Agent) with reasonable detail demonstrating how such amounts were derived shall be conclusive in the absence of manifest error. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

2.20 Taxes . (a) All payments made by the Borrower under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent’s or such Lender’s having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“ Non-Excluded Taxes ”) are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts that would have been received hereunder had such withholding not been required; provided , however , that the Borrower or a Guarantor shall not be required to increase any such amounts payable to the Administrative Agent or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to the Administrative Agent’s or such Lender’s failure to comply

 

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with the requirements of paragraph (f) of this Section, or (ii) that are United States withholding taxes imposed on amounts payable to the Administrative Agent or such Lender at the time the Administrative Agent or such Lender becomes a party to this Agreement, except to the extent that the Administrative Agent’s or such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower or a Guarantor with respect to such Non-Excluded Taxes pursuant to this Section 2.20(a). The Borrower or the applicable Guarantor shall make any required withholding and pay the full amount withheld to the relevant tax authority or other Governmental Authority in accordance with applicable Requirements of Law.

 

(b) The Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law.

 

(c) The Borrower shall indemnify the Administrative Agent and any Lender for the full amount of Non-Excluded Taxes or Other Taxes arising in connection with payments made under this Agreement (including, without limitation, any Non-Excluded Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.20) paid by the Administrative Agent or Lender or any of their respective Affiliates and any liability (including penalties, additions to tax interest) arising therefrom or with respect thereto, provided that if the Borrower reasonably believes that such Non-Excluded Taxes or Other Taxes, as the case may be, were not correctly or legally asserted, the Administrative Agent or Lender, as the case may be, will use reasonable efforts to cooperate with the Borrower to obtain a refund of such Non-Excluded Taxes or Other Taxes so long as such efforts would not result in any additional costs, expenses or risks or be otherwise disadvantageous to the Administrative Agent or Lender, as the case may be. Payment under this indemnification shall be made within ten days from the date the Administrative Agent or any Lender or any of their respective Affiliates makes written demand therefor (which demand shall identify the nature and amount of Non-Excluded Taxes and Other Taxes for which indemnification is being sought and shall include a copy of the written assessment from the relevant Governmental Authority demanding payment for such Non-Excluded Taxes and Other Taxes).

 

(d) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for the account of the Administrative Agent or Lender, as the case may be, a certified copy of an original official receipt, if any, received by the Borrower of evidence showing payment thereof or, if such copy is not available, any other evidence of payment thereof reasonably satisfactory to the Administrative Agent.

 

(e) The agreements in this Section 2.20 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

 

(f) Each Lender (or Transferee) that is not a citizen or resident of the United States of America, a corporation, partnership or other entity created or organized in or under the laws of the United States of America (or any jurisdiction thereof), or any estate or trust that is subject to federal income taxation regardless of the source of its income (a “ Non-U.S. Lender ”) shall deliver to the Borrower and the Administrative Agent (and, in the case of a Participant, to the Lender from which the related participation shall have been purchased) (i) a copy of either

 

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U.S. Internal Revenue Service Form W-8BEN (claiming benefits under an applicable treaty) or Form W-8ECI, or, (ii) in the case of a Non-U.S. Lender claiming exem