Exhibit 10.1
REVOLVING CREDIT
AGREEMENT
dated as of
June 30, 2004
among
WATSON WYATT &
COMPANY,
as
Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK,
as Administrative Agent
SUNTRUST ROBINSON HUMPHREY,
a division of SunTrust Capital Markets, Inc.,
as Lead Arranger
TABLE OF CONTENTS
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REVOLVING CREDIT
AGREEMENT
THIS REVOLVING CREDIT
AGREEMENT (this “
Agreement ”) is made and entered into as of
June 30, 2004, by and among WATSON WYATT & COMPANY, a
Delaware corporation (the “ Borrower ”), the
several banks and other financial institutions and lenders from
time to time party hereto (the “ Lenders ”), and
SUNTRUST BANK, a Georgia banking corporation, in its capacity as
administrative agent for the Lenders (the “ Administrative
Agent ”), as issuing bank (the “ Issuing
Bank ”) and as swingline lender (the “ Swingline
Lender ”).
W I T N E S S E T
H:
WHEREAS , the Borrower has requested that the Lenders
establish in favor of Borrower a $50,000,000 senior revolving
credit facility with a $10,000,000 swingline subfacility and
a $15,000,000 letter of credit subfacility;
WHEREAS , subject to the terms and conditions of this
Agreement, the Lenders, the Issuing Bank and the Swingline Lender
to the extent of their respective Commitments as defined herein,
are willing severally to establish the requested revolving credit
facility, letter of credit subfacility and the swingline
subfacility in favor of the Borrower.
NOW, THEREFORE
, in consideration of the premises
and the mutual covenants herein contained, the Borrower, the
Lenders, the Administrative Agent, the Issuing Bank and the
Swingline Lender agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 .
Definitions
. In
addition to the other terms defined herein, the following terms
used herein shall have the meanings herein specified (to be equally
applicable to both the singular and plural forms of the terms
defined):
“ Additional Lender
” shall have the meaning given to such term in
Section 2.23 .
“ Adjusted LIBO Rate
” shall mean, with respect to each Interest Period for a
Eurodollar Borrowing, the rate per annum obtained by dividing
(i) LIBOR for such Interest Period by (ii) a percentage
equal to 1.00 minus the Eurodollar Reserve
Percentage.
“ Administrative
Questionnaire ” shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly
completed by such Lender.
“ Affiliate ”
shall mean, as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
For the purposes of this definition, “Control” shall
mean the power, directly
or indirectly, either to (i) vote 10% or more of
the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies
of a Person, whether through the ability to exercise voting power,
by control or otherwise. The terms “Controlling”,
“Controlled by”, and “under common Control
with” have the meanings correlative thereto.
“ Aggregate Revolving
Commitment Amount ” shall mean the aggregate principal
amount of the Aggregate Revolving Commitments from time to
time. On the Closing Date, the Aggregate Revolving Commitment
Amount equals $50,000,000.
“ Aggregate Revolving
Commitments ” shall mean, collectively, all Revolving
Commitments of all Lenders at any time outstanding.
“ Aggregate Subsidiary
Threshold ” shall mean an amount equal to ninety-eight
percent (98%) of the total consolidated revenue or assets of the
Consolidated Group for the most recent Fiscal Quarter as shown on
the financial statements most recently delivered or required to be
delivered pursuant to Section 5.1 ( a ) or (
b ), as the case may be.
“ Applicable Lending
Office ” shall mean, for each Lender and for each Type of
Loan, the “Lending Office” of such Lender (or an
Affiliate of such Lender) designated for such Type of Loan in the
Administrative Questionnaire submitted by such Lender or such other
office of such Lender (or an Affiliate of such Lender) as such
Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Type are
to be made and maintained.
“ Applicable Margin
” shall mean, as of any date, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit
fee, as the case may be, a percentage per annum determined by
reference to the applicable Leverage Ratio from time to time in
effect as set forth on Schedule I ; provided ,
that a change in the Applicable Margin resulting from a change in
the Leverage Ratio shall be effective on the second Business Day
after which the Borrower delivers the financial statements required
by Section 5.1(a ) or ( b ) and the Compliance
Certificate required by Section 5.1 ( c );
provided further , that if at any time the Borrower shall
have failed to deliver such financial statements and such
Compliance Certificate when so required, the Applicable Margin
shall be at Level I as set forth on Schedule I until
such time as such financial statements and Compliance Certificate
are delivered, at which time the Applicable Margin shall be
determined as provided above. Notwithstanding the foregoing,
the Applicable Margin from the Closing Date until the financial
statements and Compliance Certificate for the Fiscal Quarter ending
June 30, 2004 are required to be delivered shall be at Level
IV as set forth on Schedule I .
“ Applicable Percentage
” shall mean, as of any date, with respect to the commitment
fee as of any date, the percentage per annum determined by
reference to the applicable Leverage Ratio in effect on such date
as set forth on Schedule I ; provided , that a
change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective on the second Business Day after
which the Borrower delivers the financial statements required by
Section 5.1 ( a ) or ( b ) and the
Compliance Certificate required by Section 5.1(c );
provided further , that if
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at any time the Borrower shall have failed to
deliver such financial statements and such Compliance Certificate,
the Applicable Percentage shall be at Level I as set forth on
Schedule I until such time as such financial statements
and Compliance Certificate are delivered, at which time the
Applicable Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Percentage for the
commitment fee from the Closing Date until the financial statements
and Compliance Certificate for the Fiscal Quarter ending
June 30, 2004 are required to be delivered shall be at Level
IV as set forth on Schedule I .
“ Approved Fund ”
shall mean any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in
the ordinary course of its business and that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an
entity or an Affiliate of an entity that administers or manages a
Lender.
“ Assignment and
Acceptance ” shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b) )
and accepted by the Administrative Agent, in the form of Exhibit
C attached hereto or any other form approved by the
Administrative Agent.
“ Australian Dollars
” and the sign “aus$” shall mean lawful money of
the Commonwealth of Australia.
“ Available Foreign
Currency ” shall mean (i) Euros, Japanese Yen, Australian
Dollars, Canadian Dollars, New Zealand Dollars, Hong Kong Dollars
and (ii) any other freely available currency which the
Administrative Agent customarily lends in and which is freely
transferable and freely convertible into Dollars and in which
dealings in deposits are carried on in the London interbank market,
which shall be requested by the Borrower and approved by the
Administrative Agent.
“ Availability Period
” shall mean the period from the Closing Date to the
Revolving Commitment Termination Date.
“ Base Rate ”
shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its
prime lending rate, as in effect from time to time, and
(ii) the Federal Funds Rate, as in effect from time to time,
plus one-half of one percent (0.50%). The
Administrative Agent’s prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate charged
to customers. The Administrative Agent may make commercial
loans or other loans at rates of interest at, above or below the
Administrative Agent’s prime lending rate. Each change
in the Administrative Agent’s prime lending rate shall be
effective from and including the date such change is publicly
announced as being effective.
“ Borrowing ”
shall mean a borrowing consisting of (i) Loans of the same Class
and Type, made, converted or continued on the same date and in the
case of Eurodollar Loans, as to which a single Interest Period is
in effect, or (ii) a Swingline Loan.
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“ Business Day ”
shall mean (i) any day other than a Saturday, Sunday or other day
on which commercial banks in Atlanta, Georgia and New York, New
York are authorized or required by law to close and (ii) if such
day relates to a Borrowing of, a payment or prepayment of principal
or interest on, a conversion of or into, or an Interest Period for,
a Eurodollar Loan or a notice with respect to any of the foregoing,
any day on which dealings in Dollars or the applicable Available
Foreign Currency are carried on in the London interbank
market.
“ Canadian Loan Program
” shall mean the Borrower’s employee loan program
established for the benefit of its Canadian employees.
“ Capital Expenditures
” shall mean for any period, without duplication, (i) the
additions to property, plant and equipment and other capital
expenditures of the Consolidated Group that are (or would be) set
forth on a consolidated statement of cash flows of the Consolidated
Group for such period prepared in accordance with GAAP and (ii)
Capital Lease Obligations incurred by the Consolidated Group during
such period.
“ Capital Lease
Obligations ” of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) of real or personal
property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance
with GAAP.
“ Capital Stock ”
shall mean any non-redeemable capital stock (or in the case of a
partnership or limited liability company, the partners’ or
members’ equivalent equity interest) of the Borrower or any
of its Subsidiaries (to the extent issued to a Person other than
the Borrower), whether common or preferred.
“ Change in Control
” shall mean the occurrence of one or more of the following
events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or
substantially all of the assets of the Parent Guarantor or Borrower
to any Person or “group” (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b)
the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or “group” (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the
date hereof) of 20% or more of the outstanding shares of the voting
stock of the Parent Guarantor or Borrower; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of
directors of the Parent Guarantor or Borrower by Persons who were
neither (i) nominated by the current board of directors nor (ii)
appointed by the current directors.
“ Change in Law ”
shall mean (i) the adoption of any applicable law, rule or
regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the
interpretation or application thereof, by any Governmental
Authority after the date of this Agreement, or (iii) compliance by
any Lender (or its Applicable Lending Office) or the
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Issuing Bank (or for purposes of
Section 2.18 ( b ), by such Lender’s or
the Issuing Bank’s parent corporation, if applicable) with
any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after
the date of this Agreement.
“ Class ”, when
used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, or a
Swingline Commitment.
“ Closing Date ”
shall mean the date on which the conditions precedent set forth in
Section 3.1 and Section 3.2 have been
satisfied or waived in accordance with Section 10.2
.
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended and in effect
from time to time.
“ Commitment ”
shall mean a Revolving Commitment or a Swingline Commitment or a
combination thereof (as the context shall permit or
require).
“ Compliance
Certificate ” shall mean a certificate from the principal
executive officer and the principal financial officer of the
Borrower in the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(c)
.
“ Consolidated EBITDA
” shall mean, for the Consolidated Group for any period, an
amount equal to the sum of (i) Consolidated Net Income for such
period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest
Expense, (B) income tax expense determined on a consolidated basis
in accordance with GAAP, (C) depreciation and amortization
determined on a consolidated basis in accordance with GAAP, and
(D) all other non-cash charges acceptable to the
Administrative Agent, determined on a consolidated basis in
accordance with GAAP, in each case for such period.
“ Consolidated EBITR
” shall mean, for the Consolidated Group for any period, an
amount equal to the sum of (i) Consolidated EBITDA for such period
less , to the extent added to Consolidated Net Income in
determining Consolidated EBITDA for such period, depreciation and
amortization determined on a consolidated basis in accordance with
GAAP, plus (iii) Consolidated Lease Expense for such
period.
“ Consolidated Group
” shall mean the Parent Guarantor and its consolidated
Subsidiaries (including the Borrower), as determined in accordance
with GAAP.
“ Consolidated Interest
Expense ” shall mean, for the Consolidated Group for any
period determined on a consolidated basis in accordance with GAAP,
the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or
not actually paid during such period) plus (ii) the net
amount payable (or minus the net amount receivable) under
Hedging Agreements during such period (whether or not actually paid
or received during such period).
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“ Consolidated Lease
Expense ” shall mean, for the Consolidated Group for any
period, the aggregate amount of fixed and contingent rentals
payable with respect to leases of real and personal property
(excluding Capital Lease Obligations) determined on a consolidated
basis in accordance with GAAP for such period.
“ Consolidated Net
Income ” shall mean, for the Consolidated Group for any
period, the net income (or loss) of the Consolidated Group for such
period determined on a consolidated basis in accordance with GAAP,
but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets, (iii) any equity interest
of any member of the Consolidated Group in the unremitted earnings
of any Person that is not a Subsidiary and (iv) any income (or
loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with any member of the
Consolidated Group on the date that such Person’s assets are
acquired by any member of the Consolidated Group.
“ Contractual
Obligation ” of any Person shall mean any provision of
any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it
or any of the property in which it has an interest is
bound.
“ CSAP ” shall
mean the Borrower’s Canadian Separation Allowance Plan
established for the benefit of the Borrower’s Canadian
employees in connection with the Canadian Loan Program.
“ Default ” shall
mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of
Default.
“ Default Interest
” shall have the meaning set forth in
Section 2.13 ( c ).
“ Domestic Subsidiary
” shall mean any Subsidiary that is incorporated or organized
under the laws of any State of the United States or the District of
Columbia.
“ Dollar(s) ” and
the sign “$” shall mean lawful money of the United
States of America.
“ Dollar Equivalent
” shall mean, on any date, with respect to an amount
denominated in any Available Foreign Currency, the amount of
Dollars into which the Administrative Agent could, in accordance
with its practice, convert such amount of Available Foreign
Currency in the interbank foreign exchange market at its spot rate
of exchange (inclusive of all reasonably related costs of
conversion, if any, that are actually incurred) at or about 10:00
a.m. (Atlanta, Georgia time), on such date.
“ Eligible Assignee
” shall mean (i) a Lender; (ii) an Affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a
natural Person) approved by the Administrative Agent, the Issuing
Bank, and unless (x) such Person is taking delivery of an
assignment in connection with physical settlement of a credit
derivatives transaction or (y) an Event of Default has occurred and
is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). If the consent of the
Borrower to an assignment or to an
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Eligible Assignee is required hereunder
(including a consent to an assignment which does not meet the
minimum assignment thresholds specified in paragraph (b)(i) of
Section 10.4 ), the Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof
has actually been delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is
expressly refused by the Borrower prior to such fifth Business
Day.
“ Employee Stock Loans
” shall mean loans by Bank of America, N.A. to various
employees of the Borrower that are guaranteed by the
Borrower.
“ Environmental Laws
” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any
Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to
health and safety matters.
“ Environmental
Liability ” shall mean any liability, contingent or
otherwise (including any liability for damages, costs of
environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (i) any actual
or alleged violation of any Environmental Law, (ii) the generation,
use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (iii) any actual or alleged exposure to
any Hazardous Materials, (iv) the Release or threatened Release of
any Hazardous Materials or (v) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
“ ERISA ” shall
mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
“ ERISA Affiliate
” shall mean any trade or business (whether or not
incorporated), which, together with any member of the Consolidated
Group, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for the purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ ERISA Event ”
shall mean (i) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day
notice period is waived); (ii) the existence with respect to any
Plan of an “accumulated funding deficiency” (as defined
in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (iii) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with
respect to any Plan; (iv) the incurrence by any member of the
Consolidated Group or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any
Plan; (v) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or
to appoint a trustee to administer any Plan; (vi) the incurrence by
any member of the Consolidated
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Group or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from
any Plan or Multiemployer Plan; or (vii) the receipt by any member
of the Consolidated Group or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from any member of the
Consolidated Group or any ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
“ Euros ” and the
sign “€” shall mean lawful money of the European
Union.
“ Eurodollar ”
when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, bears interest
at a rate determined by reference to the Adjusted LIBO
Rate.
“ Eurodollar Reserve
Percentage ” shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a
decimal (rounded upwards to the next 1/100 th of 1%) in
effect on any day to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate pursuant to regulations issued by
the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal
functions) with respect to eurocurrency funding (currently referred
to as “eurocurrency liabilities” under Regulation
D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under
Regulation D. The Eurodollar Reserve Percentage shall be
adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“ Event of Default
” shall have the meaning provided in
Article 8.
“
Excluded Taxes
”
shall mean with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on
amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement, (ii) is imposed on
amounts payable to such Foreign Lender at any time that such
Foreign Lender designates a new lending office, other than taxes
that have accrued prior to the designation of such lending office
that are otherwise not Excluded Taxes, and (iii) is attributable to
such Foreign Lender’s failure to comply with
Section 2.20 ( e ).
“ Executive Summary
” shall mean the Confidential Executive Summary dated May
2004 relating to the Consolidated Group and the transactions
contemplated by this Agreement and the other Loan
Documents.
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“ Existing Lenders
” shall mean Bank of America, N.A., The Bank of Nova Scotia,
Comerica Bank, SunTrust Bank, Allfirst Bank, Firstar Bank, National
Association, CIBC Inc. and any other lender under the Credit
Agreement dated June 25, 2002 by and among Borrower, Watson
Wyatt & Company Holdings and certain of its domestic
subsidiaries, as guarantors, the banks party thereto, the Bank of
Nova Scotia and Comerica Bank, as co-syndication agents, SunTrust
Bank, as documentation agent and Bank of America, N.A., as
agent.
“ Federal Funds Rate
” shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100 th of 1%) equal
to the weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System
arranged by Federal funds brokers, as published by the Federal
Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal
Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day
on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent.
“ Fee Letter ”
shall mean that certain fee letter, dated as of May 7, 2004,
executed by SunTrust Robinson Humphrey, a division of SunTrust
Capital Markets, Inc., and SunTrust Bank and accepted by
Borrower.
“ Fiscal Quarter
” shall mean any fiscal quarter of the Consolidated
Group.
“ Fiscal Year ”
shall mean any fiscal year of the Consolidated Group.
“ Fixed Charge Coverage
Ratio ” shall mean, as of any date, the ratio of (a)
Consolidated EBITR to (b) the sum of (i) Consolidated Interest
Expense plus (ii) Consolidated Lease Expense, in each case measured
for the four consecutive Fiscal Quarters ending on or immediately
prior to such date.
“ Foreign Currency Payment
Accounts ” shall mean those bank accounts specified on
Schedule 1.1. for receipt of payments in Available Foreign
Currencies, both from the Lenders in accordance with
Section 2.5 and the Borrower in accordance with
Section 2.21 , or such other bank accounts as may
hereafter be specified by the Administrative Agent in writing to
the Borrower and the Lenders as being the applicable bank accounts
for receipt of payments in such currencies.
“ Foreign Currency
Sublimit ” shall mean the Dollar Equivalent of
$15,000,000, as such amount may be reduced from time to time
pursuant to the terms of this Agreement.
“ Foreign Lender
” shall mean any Lender that is not a United States person
under Section 7701(a)(3) of the Code.
“ Foreign Subsidiary
” shall mean any Subsidiary that is organized under the laws
of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
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“ GAAP ” shall
mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of
Section 1.3 .
“ Governmental
Authority ” shall mean the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government.
“ Guarantee ” of
or by any Person (the “ guarantor ”) shall mean
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “
primary obligor ”) in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the
guarantor (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (ii) to purchase or lease
property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment
thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in
respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided , that
the term “Guarantee” shall not include endorsements for
collection or deposits in the ordinary course of business.
The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the primary obligation in
respect of which Guarantee is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The
term “Guarantee” used as a verb has a corresponding
meaning.
“ Hazardous Materials
” shall mean all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos
or asbestos containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental
Law.
“ Hedging Obligations
” of any Person shall mean any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all
Hedging Transactions, (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Hedging Transactions
and (iii) any and all renewals, extensions and modifications of any
Hedging Transactions and any and all substitutions for any Hedging
Transactions.
“ Hedging Transaction
” of any Person shall mean any transaction (including an
agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate
transaction, commodity swap, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collateral
transaction, forward transaction,
10
currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other
financial measures.
“ Hong Kong Dollars
” and the sign “hk$” shall mean lawful money of
the Hong Kong Special Administrative Region.
“ Indebtedness ”
of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in
respect of the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of
business), (iv) all obligations of such Person under any
conditional sale or other title retention agreement(s) relating to
property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described in
clauses (i) through (vi) above, (viii) all Indebtedness of a third
party secured by any Lien on property owned by such Person, whether
or not such Indebtedness has been assumed by such Person, (ix) all
obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any common stock of
such Person, (x) Off-Balance Sheet Liabilities and (xi) all Hedging
Obligations. The Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer, but
only to the extent that there is direct or indirect recourse to
such Person (as a guarantor, partner or otherwise) for payment
thereof.
“ Indemnified Taxes
” shall mean Taxes other than Excluded Taxes.
“ Interest Coverage
Ratio ” shall mean, as of any date, the ratio of (i)
Consolidated EBITDA for the four consecutive Fiscal Quarters ending
on or immediately prior to such date to (ii) Consolidated Interest
Expense for the four consecutive Fiscal Quarters ending on or
immediately prior to such date.
“ Interest Period
” shall mean with respect to (i) any Swingline
Borrowing, such period as the Swingline Lender and the Borrower
shall mutually agree and (ii) any Eurodollar Borrowing, a period of
one, two, three or six months; provided, that:
(i)
the initial
Interest Period for such Borrowing shall commence on the date of
such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii)
if any Interest
Period would otherwise end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding
Business Day;
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(iii)
any Interest
Period which 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 such calendar month; and
(iv)
no Interest
Period may extend beyond the Revolving Commitment Termination
Date.
“ Issuing Bank ”
shall mean SunTrust Bank or any other Lender, each in its capacity
as an issuer of Letters of Credit pursuant to
Section 2.22 .
“ Japanese Yen ”
and the sign “¥” shall mean lawful money of
Japan.
“ LC Commitment ”
shall mean that portion of the Aggregate Revolving Commitment
Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed
$15,000,000.
“ LC Disbursement
” shall mean a payment made by the Issuing Bank pursuant to a
Letter of Credit.
“ LC Documents ”
shall mean the Letters of Credit and all applications, agreements
and instruments relating to the Letters of Credit.
“ LC Exposure ”
shall mean, at any time, the sum of (i) the aggregate undrawn
amount of all outstanding Letters of Credit at such time,
plus (ii) the aggregate amount of all LC Disbursements
that have not been reimbursed by or on behalf of the Borrower at
such time. The LC Exposure of any Lender shall be its Pro
Rata Share of the total LC Exposure at such time.
“ Lead Arranger ”
shall mean SunTrust Robinson Humphrey, Inc., a division of SunTrust
Capital Markets, Inc.
“ Lender Joinder
” shall have the meaning set forth in
Section 2.23 .
“ Lenders ” shall
have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline
Lender and each Additional Lender that joins this Agreement
pursuant to Section 2.23 .
“ Letter of Credit
” shall mean any stand-by letter of credit issued pursuant to
Section 2.22 by the Issuing Bank for the account of the
Borrower pursuant to the LC Commitment.
“ Leverage Ratio
” shall mean, as of any date, the ratio of (i) Total Debt as
of such date to (ii) Consolidated EBITDA for the four consecutive
quarters ending on or immediately prior to such date.
“ LIBOR ” shall
mean, for any applicable Interest Period with respect to any
Eurodollar Loan, the British Bankers’ Association Interest
Settlement Rate per annum for deposits in
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Dollars or applicable Available Foreign Currency
for a period equal to such Interest Period appearing on the display
designated as Page 3750 on the Dow Jones Markets Service (or such
other page on that service or such other service designated by the
British Bankers’ Association for the display of such
Association’s Interest Settlement Rates for Dollar or the
applicable Available Foreign Currency deposits) as of
11:00 a.m. (London, England time) on the day that is two
Business Days prior to the first day of the Interest Period or if
such Page 3750 is unavailable for any reason at such time, the rate
which appears on the Reuters Screen ISDA Page as of such date and
such time; provided , that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for
the relevant Interest Period, LIBOR shall mean the rate of interest
determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100 th of 1%) of
the rates per annum at which deposits in Dollars or the applicable
Available Foreign Currency are offered to the Administrative Agent
two (2) Business Days preceding the first day of such Interest
Period by leading banks in the London interbank market as of 10:00
a.m. (Atlanta, Georgia time) for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Loan of the
Administrative Agent.
“ Lien ” shall
mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of
the foregoing or any preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention
agreement and any capital lease having the same economic effect as
any of the foregoing).
“ Loan Documents
” shall mean, collectively, this Agreement, the Notes (if
any), the LC Documents, the Parent Guaranty Agreement, the
Subsidiary Guaranty Agreement, the Pledge Agreements, all Notices
of Borrowing, all Notices of Conversion/Continuation, all
Compliance Certificates and any and all other instruments,
agreements, documents and writings executed in connection with any
of the foregoing.
“ Loan Parties ”
shall mean the Borrower, the Parent Guarantor and the Subsidiary
Loan Parties.
“ Loans ” shall
mean all Revolving Loans and Swingline Loans in the aggregate or
individually, as the context shall require.
“ Margined Receivables from
Clients ” shall mean, as of any date, for the
Consolidated Group determined on a consolidated basis in accordance
with GAAP, the sum of (i) 100% of billed receivables from clients,
net of standard allowances for doubtful accounts plus (ii)
75% of unbilled receivables from clients, net of standard
allowances for doubtful accounts.
“ Material Adverse
Effect ” shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental
investigation or proceeding), whether singularly or in conjunction
with any other event or events, act or acts, condition or
conditions, occurrence or occurrences whether or
13
not related, a material adverse change in, or a
material adverse effect on, (i) the business, results of
operations, financial condition, assets, liabilities or prospects
of the Consolidated Group taken as a whole, (ii) the ability
of the Loan Parties to perform any material obligations under
the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank, Swingline Lender, and the
Lenders under any of the Loan Documents or (iv) the legality,
validity or enforceability of any of the Loan Documents.
“ Material Indebtedness
” shall mean Indebtedness (other than the Loans and Letters
of Credit) and Hedging Obligations of any member of the
Consolidated Group, individually or in an aggregate principal
amount exceeding $5,000,000. For purposes of determining the
amount of attributed Indebtedness from Hedging Obligations, the
“principal amount” of any Hedging Obligations at any
time shall be the Net Mark-to-Market Exposure of such Hedging
Obligations.
“ Material Subsidiary
” shall mean a Subsidiary of the Parent (i) the accounts
receivable of which comprise two percent (2%) or more of the
consolidated accounts receivable of the Consolidated Group or (ii)
the assets of which comprise two percent (2%) or more of the
consolidated assets of the Consolidated Group.
“ Minimum Asset Coverage
Ratio ” shall mean at any time the ratio of Margined
Receivables from Clients to Total Debt at such time.
“ Moody’s ”
shall mean Moody’s Investors Service, Inc.
“ Multiemployer Plan
” shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
“ Net Mark-to-Market
Exposure ” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess
(if any) of all unrealized losses over all unrealized profits of
such Person arising from such Hedging Obligation.
“Unrealized losses” shall mean the fair market value of
the cost to such Person of replacing the Hedging Transaction giving
rise to such Hedging Obligation as of the date of determination
(assuming the Hedging Transaction were to be terminated as of that
date), and “unrealized profits” means the fair market
value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging
Transaction were to be terminated as of that date).
“ New Zealand Dollars
” and the sign “nz$” shall mean lawful money of
New Zealand.
“ Notes ” shall
mean, collectively, the Revolving Credit Notes and the Swingline
Note.
“ Notices of Borrowing
” shall mean, collectively, the Notices of Revolving
Borrowing, and the Notices of Swingline Borrowing.
“ Notice of
Conversion/Continuation ” shall mean the notice given by
the Borrower to the Administrative Agent in respect of the
conversion or continuation of an outstanding Borrowing as provided
in Section 2.8 ( b ).
“ Notice of Revolving
Borrowing ” shall have the meaning as set forth in
Section 2.3 .
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“ Notice of Swingline
Borrowing ” shall have the meaning as set forth in
Section 2.4 .
“ Obligations ”
shall mean all amounts owing by the Borrower to the Administrative
Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any
other Loan Document, including without limitation, all principal,
interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed
in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative
Agent, the Issuing Bank and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, and all Hedging Obligations owed to the
Administrative Agent, any Lender or any of their Affiliates
incurred in order to limit interest rate or fee fluctuation with
respect to the Loans and Letters of Credit, and all obligations and
liabilities incurred in connection with collecting and enforcing
the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
“ Off-Balance Sheet
Liabilities ” of any Person shall mean (i) any repurchase
obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such
Person under any sale and leaseback transactions that do not create
a liability on the balance sheet of such Person, (iii) any
Synthetic Lease Obligation or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
“ OSHA ” shall
mean the Occupational Safety and Health Act of 1970, as amended
from time to time, and any successor statute.
“ Other Taxes ”
shall mean any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
“ Parent Guarantor
” shall mean Watson Wyatt & Company Holdings, a Delaware
corporation.
“ Parent Guaranty
Agreement ” shall mean the Parent Guaranty Agreement,
dated as of the date hereof and substantially in the form of
Exhibit D-1 , made by the Parent Guarantor in favor of the
Administrative Agent for the benefit of the Lenders.
“ Participant ”
shall have the meaning set forth in Section 10.4(d
).
“ Payment Office
” shall mean the office of the Administrative Agent located
at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such
other location as to which the Administrative Agent shall have
given written notice to the Borrower and the other Lenders.
`
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“ PBGC ” shall
mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar
functions.
“ Permitted CSAP Loan
” shall mean a loan extended under the Canadian Loan Program
to one of the Borrower’s Canadian employees for which a
Separation Allowance Account is maintained having a balance not in
excess of 90% of the dollar amount credited from time to time to
such account.
“ Permitted
Encumbrances ” shall mean:
(i)
Liens imposed by
law for taxes not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(ii)
statutory Liens
of landlords, carriers, warehousemen, mechanics, materialmen and
similar Liens arising by operation of law in the ordinary course of
business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with
GAAP;
(iii)
pledges and
deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other
social security laws or regulations;
(iv)
liens and
deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(v)
judgment and
attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that
are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(vi)
easements, zoning
restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Consolidated Group taken as a whole;
(vii)
any interest or
title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registration or agreements in
foreign jurisdictions) relating to leases that are not Capital
Lease Obligations;
(viii)
normal and
customary rights of setoff upon deposits of cash in favor of banks
or other depository institutions;
16
(ix)
Liens of a
collection bank arising under Section 4-210 of the UCC on
items in the course of collection; and
(x)
Liens deemed to
exist in connection with investments in repurchase agreements that
constitute Permitted Investments;
provided , that the term “Permitted
Encumbrances” shall not include any Lien securing
Indebtedness.
“ Permitted Investments
” shall mean:
(i)
direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by
any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii)
commercial paper
having the highest rating, at the time of acquisition thereof, of
S&P or Moody’s and in either case maturing within six
months from the date of acquisition
thereof;
(iii)
certificates of
deposit, bankers’ acceptances and time deposits maturing
within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(iv)
fully
collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described
in clause (iii) above;
(v)
mutual funds
investing solely in any one or more of the Permitted Investments
described in clauses (i) through (iv) above;
(vi)
investments
consisting of stock, obligations, securities or other property
received in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(vii)
investments in
Watson Wyatt LLP in an aggregate amount not to exceed
$10,000,000;
(viii)
investments in
Watson Wyatt & Company Holdings (Europe) Limited in an
aggregate amount not to exceed $10,000,000;
17
(ix)
Permitted CSAP
Loans in an aggregate amount not to exceed $3,500,000;
and
(x)
investments in
Professional Consultants Insurance Company, Inc. or any other
captive insurance company that securies professional liability
insurance for the members of the Consolidated Group in an aggregate
amount not to exceed $10,000,000 at any one time
outstanding.
“ Person ” shall
mean any individual, partnership, firm, corporation, association,
joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
“ Plan ” shall
mean any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“ Pledge Agreements
” shall mean the Pledge Agreements, dated as of the date
hereof and substantially in the form of Exhibit E , made by
the Parent Guarantor and Borrower in favor of the Administrative
Agent for the benefit of the Lenders pledging the interests of the
Parent Guarantor and the Borrower in all Material Subsidiaries as
collateral security for the Obligations, as the same may from time
to time be amended.
“ Pro Rata Share
” shall mean (i) with respect to any Commitment of any Lender
at any time, a percentage, the numerator of which shall be such
Lender’s Commitment (or if such Commitments have been
terminated or expired or the Loans have been declared to be due and
payable, such Lender’s Revolving Credit Exposure), and the
denominator of which shall be the sum of such Commitments of all
Lenders (or if such Commitments have been terminated or expired or
the Loans have been declared to be due and payable, all Revolving
Credit Exposure of all Lenders) and (ii) with respect to all
Commitments of any Lender at any time, the numerator of which shall
be the sum of such Lender’s Revolving Commitment (or if such
Revolving Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender’s
Revolving Credit Exposure) and the denominator of which shall be
the sum of all Lenders’ Revolving Commitments (or if such
Revolving Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Revolving Credit
Exposure of all Lenders funded under such Commitments).
“ Regulation D
” shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
“ Related Parties
” shall mean, with respect to any specified Person, such
Person’s Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such
Person’s Affiliates.
“ Release ” shall
mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including
18
ambient air, surface water, groundwater, land
surface or subsurface strata) or within any building, structure,
facility or fixture.
“ Required Lenders
” shall mean, at any time, Lenders holding more than 50% of
the aggregate outstanding Revolving Commitments at such time or if
the Lenders have no Commitments outstanding, then Lenders holding
more than 50% of the Revolving Credit Exposure.
“ Requirement of Law
” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and
agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of a 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
” shall mean any of the president, the chief executive
officer, the chief operating officer, the chief financial officer,
the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by
any one of the foregoing with the consent of the Administrative
Agent; and, with respect to the financial covenants only, the chief
financial officer or the treasurer of the Borrower.
“ Restricted Payment
” shall have the meaning set forth in Section 7.5
.
“ Revolving Commitment
” shall mean, with respect to each Lender, the obligation of
such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an
aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Annex I , as such annex may be
amended pursuant to Section 2.23 , or in the case of a
Person becoming a Lender after the Closing Date through an
assignment of an existing Revolving Commitment, the amount of the
assigned “Revolving Commitment” as provided in the
Assignment and Acceptance executed by such Person as an assignee,
as the same may be increased or deceased pursuant to terms
hereof.
“ Revolving Commitment
Termination Date ” shall mean the earliest of (i)
June 30, 2009, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.9 and
(iii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
“ Revolving Credit
Exposure ” shall mean, with respect to any Lender at any
time, the sum of the outstanding principal amount of such
Lender’s Revolving Loans, LC Exposure and Swingline
Exposure.
“ Revolving Credit Note
” shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such
Lender’s Revolving Commitment, in substantially the form of
Exhibit A .
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“ Revolving Loan
” shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment,
which may either be a Base Rate Loan or a Eurodollar
Loan.
“ Separation Allowance
Account ” shall mean the account established for the
Borrower’s qualified Canadian employees to which, from time
to time, the Borrower may credit dollar amounts allocated to such
employee based on such employee’s share in the CSAP.
For the avoidance of doubt, no such account shall be funded with
actual dollars, but the dollar amount credited thereto shall be
reflected as a liability on the balance sheet of the
Borrower.
“ S&P ” shall
mean Standard & Poor’s, a Division of the McGraw-Hill
Companies.
“ Subsidiary ”
shall mean, with respect to any Person (the “ parent
”), any corporation, partnership, joint venture, limited
liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (i) of which
securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power, or in
the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (ii)
that is, as of such date, otherwise controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise indicated,
all references to “Subsidiary” hereunder shall mean a
Subsidiary of the Borrower.
“ Subsidiary Guaranty
Agreement ” shall mean the Subsidiary Guaranty Agreement,
dated as of the date hereof and substantially in the form of
Exhibit D-2 , made by certain Subsidiaries of the Borrower
in favor of the Administrative Agent for the benefit of the
Lenders.
“ Subsidiary Guaranty
Supplement ” shall mean each supplement substantially in
the form of Annex I to the Subsidiary Guaranty Agreement
executed and delivered by a Subsidiary of the Borrower pursuant to
Section 5.10 .
“ Subsidiary Loan Party
” shall mean any Subsidiary that executes or becomes a party
to the Subsidiary Guaranty Agreement.
“ Swingline Commitment
” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $10,000,000.
“ Swingline Exposure
” shall mean, with respect to each Lender, the principal
amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a
participation in accordance with Section 2.4 , which
shall equal such Lender’s Pro Rata Share of all outstanding
Swingline Loans.
“ Swingline Lender
” shall mean SunTrust Bank, or any other Lender that may
agree to make Swingline Loans hereunder.
20
“ Swingline Loan
” shall mean a loan made to the Borrower by the Swingline
Lender under the Swingline Commitment.
“ Swingline Note
” shall mean the promissory note of the Borrower payable to
the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B
.
“ Swingline Rate
” shall mean, for any Interest Period, the rate as offered by
the Agent and accepted by the Borrower. The Borrower is under
no obligation to accept this rate and the Agent is under no
obligation to provide it.
“ Synthetic Lease
” shall mean a lease transaction under which the parties
intend that (i) the lease will be treated as an “operating
lease” by the lessee pursuant to Statement of Financial
Accounting Standards No. 13, as amended and (ii) the lessee will be
entitled to various tax and other benefits ordinarily available to
owners (as opposed to lessees) of like property.
“ Synthetic Lease
Obligations ” shall mean, with respect to any Person, the
sum of (i) all remaining rental obligations of such Person as
lessee under Synthetic Leases which are attributable to principal
and, without duplication, (ii) all rental and purchase price
payment obligations of such Person under such Synthetic Leases
assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
“ Taxes ” shall
mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental
Authority.
“ Total Debt ”
shall mean, as of any date of determination, all Indebtedness of
the Consolidated Group measured on a consolidated basis as of such
date, but excluding Indebtedness of the type describe in
subsection (xi) of the definition of Indebtedness.
“ Type ”, when
used in reference to a Loan or Borrowing, refers to whether the
rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or
the Base Rate.
“ Voting Stock ”
shall mean, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though
the right so to vote has been suspended by the happening of such
contingency.
“ Withdrawal Liability
” shall mean liability to a Multiemployer Plan as a result of
a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
Section 1.2 .
Classifications of Loans and
Borrowings . For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a
“Revolving Loan”) or by Type (e.g. a “Eurodollar
Loan” or “Base Rate Loan”) or by Class and Type
(e.g. “Revolving Eurodollar Loan”). Borrowings
also may be classified and referred to by Class (e.g.
“Revolving
21
Borrowing”) or by Type
(e.g. “Eurodollar Borrowing”) or by Class and Type
(e.g. “ Revolving Eurodollar Borrowing”).
Section 1.3 .
Accounting Terms and
Determination . Unless otherwise
defined or specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect
from time to time, applied on a basis consistent with the most
recent audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a ); provided
, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article 6 to
eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that
the Required Lenders wish to amend Article 6 for such
purpose), then the Borrower’s compliance with such covenant
shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
Section 1.4 .
Terms Generally
.
The definitions of terms
herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without
limitation”. The word “will” shall be
construed to have the same meaning and effect as the word
“shall”. In the computation of periods of time
from a specified date to a later specified date, the word
“from” means “from and including” and the
word “to” means “to but excluding”.
Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as it was originally executed or as it may from time
to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person’s successors
and permitted assigns, (iii) the words “hereof”,
“herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a
whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall
be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific
time shall be construed to refer to the time in the city and state
of the Administrative Agent’s principal office, unless
otherwise indicated.
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 .
General Description of
Facilities . Subject to and upon
the terms and conditions herein set forth, (i) the Lenders
hereby establish in favor of the Borrower a revolving credit
facility pursuant to which each Lender severally agrees (to the
extent of such Lender’s Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with
Section 2.2 ,
22
(ii) the Issuing Bank agrees
to issue Letters of Credit in accordance with
Section 2.22 , (iii) the Swingline Lender agrees to
make Swingline Loans in accordance with Section 2.4 ,
and (iv) each Lender agrees to purchase a participation interest in
the Letters of Credit and the Swingline Loans pursuant to the terms
and conditions hereof; provided , that in no event shall the
aggregate principal amount of all outstanding Revolving Loans,
Swingline Loans and outstanding LC Exposure exceed at any time the
Aggregate Revolving Commitment Amount from time to time in
effect.
Section 2.2 .
Revolving Loans
. Subject
to the terms and conditions set forth herein, each Lender severally
agrees to make Revolving Loans, ratably in proportion to its Pro
Rata Share, to the Borrower, from time to time during the
Availability
Period, in an aggregate principal amount outstanding at any time
(determined in the case of any Revolving Loan denominated in an
Available Foreign Currency by reference to the Dollar Equivalent
thereof on such Business Day) that will not result in (a) such
Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Commitment or (b) the sum of the aggregate
Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitment Amount. During the Availability Period,
the Borrower shall be entitled to borrow, prepay and reborrow
Revolving Loans in accordance with the terms and conditions of this
Agreement; provided , that the Borrower may not borrow or
reborrow should there exist a Default or Event of Default.
Funding of any Revolving Loans shall be in any combination of
Dollars or an Available Foreign Currency as specified by the
Borrower as set forth in Section 2.3; provided that the
Dollar Equivalent amount of outstanding Revolving Loans funded in
an Available Foreign Currency determined from time to time by the
Administrative Agent in its discretion shall not at any time exceed
the Foreign Currency Sublimit then in effect.
Section 2.3 .
Procedure for Revolving
Borrowings . The Borrower shall
give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a “
Notice of Revolving Borrowing ”) (x) prior to 11:00
a.m. (Atlanta, Georgia time) one (1) Business Day prior to the
requested date of each Base Rate Borrowing, (y) prior to 11:00 a.m.
(Atlanta, Georgia time) three (3) Business Days prior to the
requested date of each Eurodollar Borrowing denominated in Dollars
and (z) prior to 11:00 a.m. four (4) Business Days prior to the
requested date of each Borrowing denominated in an Available
Foreign Currency. Each Notice of Revolving Borrowing shall be
irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), (iii) the Type of such
Revolving Loan comprising such Borrowing, and (iv) in the case of a
Eurodollar Borrowing, the requested Available Foreign Currency (if
such Borrowing is not denominated in Dollars) and the duration of
the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less
than $1,000,000 (or, if applicable, the Dollar Equivalent thereof
in the Available Foreign Currency in which such Eurodollar
Borrowing is denominated) or a larger multiple of $100,000 (or, if
applicable, the Dollar Equivalent thereof in the Available Foreign
Currency in which such Eurodollar Borrowing is denominated), and
the aggregate principal amount of each Base Rate Borrowing shall
not be less than $500,000 or a
23
larger multiple of $100,000;
provided , that Base Rate Loans made pursuant to
Section 2.4 or Section 2.22(d ) may be made
in lesser amounts as provided therein. At no time shall the
total number of Eurodollar Borrowings outstanding at any time
exceed four. At no time shall the total number of Borrowings
outstanding at any time denominated in an Available Foreign
Currency exceed four. Promptly following the receipt of a
Notice of Revolving Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender’s Revolving Loan to be
made as part of the requested Revolving Borrowing.
Section 2.4 .
Swingline Commitment
.
(a)
Subject to the
terms and conditions set forth herein, the Swingline Lender agrees
to make Swingline Loans to the Borrower, from time to time during
the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference between
the Aggregate Revolving Commitment Amount and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the
Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. The Borrower shall
be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this
Agreement.
(b)
The Borrower
shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4 attached hereto
(“Notice of Swingline Borrowing”) prior to 11:00 a.m.
(Atlanta, Georgia time) on the requested date of each Swingline
Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of
such Swingline Loan, (ii) the date of such Swingline Loan (which
shall be a Business Day) and (iii) the account of the Borrower to
which the proceeds of such Swingline Loan should be credited.
The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan
shall accrue interest at the Base Rate or any other interest rate
as agreed between the Borrower and the Swingline Lender and shall
have an Interest Period (subject to the definition thereof) as
agreed between the Borrower and the Swingline Lender. The
aggregate principal amount of each Swingline Loan shall be not less
than $100,000 or a larger multiple
of $50,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. The Swingline Lender will
make the proceeds of each Swingline Loan available to the Borrower
in Dollars in immediately available funds at the account specified
by the Borrower in the applicable Notice of Swingline Borrowing not
later than 1:00 p.m. (Atlanta, Georgia time) on the requested date
of such Swingline Loan. For the avoidance of doubt, the
Swingline Lender shall make the proceeds of each Swingline Loan
available to Borrower exclusively in Dollars and shall have no
obligation to make the proceeds of any Swingline Loan available in
any Available Foreign Currency.
(c)
The Swingline
Lender, at any time and from time to time in its sole discretion,
may, on behalf of the Borrower (which hereby irrevocably authorizes
and directs the Swingline Lender to act on its behalf), give a
Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders (including the Swingline Lender) to make
Base
24
Rate Loans in an amount
equal to the unpaid principal amount of any Swingline Loan.
Each Lender will make the proceeds of its Base Rate Loan included
in such Borrowing available to the Administrative Agent for the
account of the Swingline Lender in accordance with
Section 2.5, which will be used solely for the repayment of
such Swingline Loan.
(d)
If for any reason
a Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other
than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to
its Pro Rata Share thereof on the date that such Base Rate
Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender.
If such Swingline Loan bears interest at a rate other than the Base
Rate, such Swingline Loan shall automatically become a Base Rate
Loan on the effective date of any such participation and interest
shall become payable on demand.
(e)
Each
Lender’s obligation to make a Base Rate Loan pursuant to
Section 2.4(c) or to purchase the participating interests
pursuant to Section 2.4(d) 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 that such Lender or any other Person may have or claim
against the Swingline Lender, the Borrower or any other Person for
any reason whatsoever, (ii) the existence of a Default or an Event
of Default or the termination of any Lender’s Revolving
Commitment, (iii) the existence (or alleged existence) of any event
or condition which has had or could reasonably be expected to
have a Material Adverse Effect, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. If such amount is not in fact made available to
the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date
of demand thereof (i) at the Federal Funds Rate until the second
Business Day after such demand and (ii) at the Base Rate at all
times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue
to have outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In
addition, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans and any other
amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender’s participation interest in such
Swingline Loans that such Lender failed to fund pursuant to this
Section, until such amount has been purchased in full.
Section 2.5 .
Funding of Borrowings
.
(a)
Each Lender will
make available each Loan to be made by it hereunder on the proposed
date thereof by wire transfer in immediately available funds by
11:00 a.m. (Atlanta, Georgia time) to the Administrative Agent at
the Payment Office; provided, that the Swingline Loans will be made
as set forth in Section 2.4. If any Borrowing is
to be denominated in an
25
Available Foreign Currency,
not later than 11:00 a.m. each Lender will make available its Pro
Rata Share of such Borrowing, in immediately available funds and in
the Available Foreign Currency so requested by the Borrower at the
applicable Foreign Currency Payment Account for the benefit of the
Administrative Agent and otherwise according to the payment
instructions of the Administrative Agent. The Administrative
Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close
of business on such proposed date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower’s
option, by effecting a wire transfer of such amounts to an account
designated by the Borrower to the Administrative Agent.
(b)
Unless the
Administrative Agent shall have been notified by any Lender prior
to 5:00 p.m. (Atlanta, Georgia time) one (1) Business Day prior to
the date of a Borrowing in which such Lender is to participate that
such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to
the Administrative Agent on such date, and the Administrative
Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such Borrowing,
the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with
interest at the Federal Funds Rate until the second Business Day
after such demand and thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share
of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by
such Lender hereunder.
(c)
All Revolving
Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder,
and each Lender shall be obligated to make its Loans provided to be
made by it hereunder, regardless of the failure of any other Lender
to make its Loans hereunder.
Section 2.6 .
Multi-Currency Options
.
(a)
The Borrower may request Borrowings
of Revolving Loans in any Available Foreign Currency; provided,
however, that the aggregate Dollar Equivalent outstanding amount of
Revolving Loans made in Available Foreign Currencies shall not
exceed at any time the Foreign Currency Sublimit. Each
Lender’s Pro Rata Share of each Revolving Loan made in an
Available Foreign Currency shall be determined by reference to its
Dollar Equivalent on the date each such Revolving Loan is made.
Notwithstanding anything herein to the contrary, all Base Rate
Loans and all Swingline Loans shall be funded only in
Dollars. Eurodollar Loans may be funded in either Dollars or
in an Available Foreign Currency, in either case, as requested by
the Borrower pursuant to Section 2.3.
26
(b)
All payments of Obligations under
this Agreement, the Notes or any other Loan Document shall be made
in Dollars, except for Eurodollar Loans funded in an Available
Foreign Currency, which shall be repaid, including interest
thereon, in the applicable Available Foreign Currency. If any
payment of any Obligation shall be made in a currency other than
the currency required hereunder, such amount shall be converted
into the currency required hereunder at the current market rate for
the purchase of the currency required hereunder with the currency
in which such Obligation was paid, as quoted by the Administrative
Agent in accordance with the methods customarily used by the
Administrative Agent for such purposes as the time of such
determination. The parties hereto hereby agree, to the
fullest extent that they may effectively do so under applicable
law, that (i) if for the purposes of obtaining any judgment or
award it becomes necessary to convert from any currency other than
the currency required hereunder into the currency required
hereunder any amount in connection with the Obligations, then the
conversion shall be made as provided above on the Business Day
before the day on which the judgment or award is given, (ii) in the
event that there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment or
award is given and the date of payment, the Borrower will pay to
the Administrative Agent, for the benefit of the Lenders, such
additional amounts (if any) as may be necessary, and the
Administrative Agent, on behalf of the Lenders, will pay to the
Borrower such excess amounts (if any) as result from such change in
the rate of exchange, to assure that the amount paid on such date
is the amount in such other currency, which when converted at the
rate of exchange described herein on the date of payment, is the
amount then due in the currency required hereunder, and (iii) any
amount due from the Borrower under this Section 2.6(b)
shall be due as a separate debt and shall not be affected by
judgment or award being obtained for any other sum due. For
the avoidance of doubt, the parties affirm and agree that neither
the fixation of the conversion rate of any Available Foreign
Currency against the Euro as a single currency, in accordance with
the Treaty Establishing the European Economic Community, as amended
by the Treaty on the European Union (The Maastricht Treaty), nor
the conversion of the Obligations under this Agreement from any
Available Foreign Currency into Euros will be a reason for early
termination or revision of this Agreement or repayment of any
amount due under this Agreement or create any liability of any
party towards any other party for any direct or consequential loss
arising from any of these events. As of the date that any
Available Foreign Currency is no longer the lawful currency of its
respective country, all funding and payment Obligations to be made
in such affected currency under this Agreement shall be satisfied
in Euros.
(c)
If one or more members of the
Consolidated Group shall wind up, liquidate, dissolve or become a
debtor in bankruptcy while there remains outstanding: (i) any
amounts owing to the Lenders hereunder or under the Notes, (ii) any
damages owing to the Lenders in respect of a breach of any of the
terms hereof, or (iii) any judgment or order rendered in respect of
such amounts or damages, the Borrower shall indemnify and hold the
Lenders harmless against any deficiency with respect to the
applicable Available Foreign Currency in the amounts received by
the Lenders arising or resulting from any variation as
between: (i) the rate of exchange at which the
applicable Available Foreign Currency is converted into another
currency (the “ Liquidation Currency ”) for
purposes of such winding-up, liquidation, dissolution or bankruptcy
with regard to the amount in the applicable Available Foreign
Currency due or
27
contingently due hereunder or under the Notes or
under any judgment or order to which the relevant Obligations
hereunder or under the Notes shall have been merged and
(ii) the rate of exchange at which Administrative Agent could,
in accordance with normal banking procedures, be able to purchase
the applicable Available Foreign Currency with the Liquidation
Currency at the earlier of (A) the date of payment of such amounts
or damages and (B) the final date or dates for the filing of
proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy. As used in the preceding sentence, the
“final date” or dates for the filing of proofs of a
claim in a winding-up, liquidation, dissolution or bankruptcy shall
be the date fixed by the liquidator under the applicable law as
being the last practicable date as of which the liabilities of the
Borrower may be ascertained for such winding-up, liquidation,
dissolution or bankruptcy before payment by the liquidator or other
appropriate person in respect thereof.
(d)
The Borrower agrees to indemnify the
Administrative Agent and the Lenders against any loss or expense
which the Administrative Agent or such Lenders may sustain or incur
in liquidating or employing deposits from third parties acquired to
effect, fund or maintain any Loan made in an Available Foreign
Currency or any part thereof as a consequence of (i) the
Borrower’s failure to make a payment on other than the due
date of such Loan, or (ii) the Borrower’s failure to borrow
under, convert to or renew under the applicable Available Foreign
Currency on a binding effective date of such borrowing, conversion
or renewal. The Administrative Agent’s determination of
an amount payable under this paragraph (d) shall, in the absence of
error, be conclusive and shall be payable on demand.
(e)
The Administrative Agent may from
time to time in its discretion calculate the Dollar Equivalent of
any Revolving Loan denominated in an Available Foreign
Currency. In the event that the aggregate Dollar Equivalent
of the outstanding principal amount of the Revolving Loans
denominated in an Available Foreign Currency at any time exceeds
the Foreign Currency Sublimit, the Administrative Agent shall
promptly give notice of such fact to the Borrower and the Lenders,
and the Borrower shall be required to make a payment to the
Administrative Agent to reduce the outstanding principal amount of
the outstanding Revolving Loans denominated in an Available Foreign
Currency so that the Dollar Equivalent thereof equals not more than
the Foreign Currency Sublimit. Such payment shall be made
within two (2) Business Days following the date of receipt of such
notice given by the Administrative Agent. Each such
prepayment shall be accompanied by a payment of all accrued and
unpaid interest on the Revolving Loans prepaid and any applicable
breakage fees and funding losses pursuant to
Section 2.18 .
Section 2.7 .
Interest Elections
.
(a)
Each Borrowing
initially shall be of the Type specified in the applicable Notice
of Borrowing, and in the case of a Eurodollar Borrowing, shall have
an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such
Borrowing into a different Type or to continue such Borrowing, and
in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders
28
holding Loans comprising
such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall NOT
apply to Eurodollar Borrowings denominated in an Available Foreign
Currency (other than continuations in the same Available Foreign
Currency which shall be permitted) or Swingline Borrowings, which
may not be converted or continued.
(b)
To make an
election pursuant to this Section, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in
the form of Exhibit 2.6 attached hereto (a “Notice of
Conversion/Continuation”) that is to be converted or
continued, as the case may be, (x) prior to 10:00 a.m. (Atlanta,
Georgia time) one (1) Business Day prior to the requested date of a
conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m.
(Atlanta, Georgia time) three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing.
Each such Notice of Conversion/Continuation shall be irrevocable
and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being
elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses
(iii) and (iv) shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Notice of Continuation/Conversion, which shall be a Business Day,
(iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting
Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of “Interest
Period”. If any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but does not specify an Interest
Period, the Borrower shall be deemed to have selected an Interest
Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in
Section 2.3.
(c)
If, on the
expiration of any Interest Period in respect of any Eurodollar
Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as
provided herein, the Borrower shall be deemed to have elected to
convert such Borrowing to a Base Rate Borrowing; provided, that if,
on the expiration of any Interest Period in respect of any
Eurodollar Borrowing denominated in an Available Foreign Currency,
the Borrower shall have failed to deliver a Notice of Conversion/
Continuation for such Borrowing in the same Available Foreign
Currency, then unless such Borrowing is repaid as provided herein,
the Borrower shall be deemed to have elected to convert such
Borrowing to a Base Rate Borrowing in the Dollar Equivalent of such
Borrowing. No Borrowing may be converted into, or
continued as, a Eurodollar Borrowing if a Default or an Event of
Default exists, unless the Administrative Agent and each of the
Lenders shall have otherwise consented in writing. During an
Event of Default (unless the Administrative Agent and each of the
Lenders shall have otherwise consented in writing), all Eurodollar
Loans denominated in an Available Foreign Currency shall be
converted into Dollars upon the expiration of the Interest Period
applicable thereto. No conversion of any Eurodollar Loans
shall be permitted except on the last day of the Interest Period in
respect thereof.
29
(d)
Upon receipt of
any Notice of Conversion/Continuation, the Administrative Agent
shall promptly notify each Lender of the details thereof and of
such Lender’s portion of each resulting
Borrowing.
Section 2.8 .
Optional Reduction and
Termination of Commitments.
(a)
Unless previously
terminated, all Revolving Commitments, Swingline Commitments and LC
Commitments shall terminate on the Revolving Commitment Termination
Date.
(b)
Upon at least
three (3) Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the
Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial
reduction shall apply to reduce proportionately and permanently the
Revolving Commitment of each Lender, (ii) any partial reduction
pursuant to this Section 2.8 shall be in an amount of at least
$5,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate
Revolving Commitment Amount to an amount less than the outstanding
Revolving Credit Exposures of all Lenders. Any such reduction
in the Aggregate Revolving Commitment Amount below the sum of the
principal amount of the Swingline Commitment and the LC Commitment
shall result in a proportionate reduction (rounded to the next
lowest integral multiple of $100,000) in the Swingline Commitment
and the LC Commitment.
Section 2.9 .
Repayment of Loans
.
(a)
The outstanding
principal amount of all Revolving Loans shall be due and payable
(together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date; provided, however, the
outstanding principal amount of all Eurodollar Loans denominated in
an Available Foreign Currency shall be due and payable (together
with accrued and unpaid interest thereon) on the last day of the
Interest Period (unless such Eurodollar Loans denominated in an
Available Foreign Currency are continued in the same Available
Foreign Currency in accordance with Section 2.7;
and
(b)
The principal
amount of each Swingline Borrowing shall be due and payable
(together with accrued and unpaid interest thereon) on the earlier
of (i) the last day of the Interest Period applicable to such
Borrowing and (ii) the Revolving Commitment Termination
Date.
Section 2.10 .
Evidence of
Indebtedness .
(a)
Each Lender shall
maintain in accordance with its usual practice appropriate records
evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and
paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records
in which shall be
recorded (i) the
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Revolving Commitment of each
Lender, (ii) the amount of each Loan made hereunder by each Lender,
the Class and Type thereof and the Interest Period applicable
thereto, (iii) the date of each continuation thereof pursuant to
Section 2.7 , (iv) the date of each conversion of all
or a portion thereof to another Type pursuant to
Section 2.7 , (v) the date and amount of any principal
or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi)
both the date and amount of any sum received by the Administrative
Agent hereunder from the Borrower in respect of the Loans and each
Lender’s Pro Rata Share thereof. The entries made in
such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded;
provided , that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such
record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and
unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement.
(b)
At the request of
any Lender (including the Swingline Lender) at any time, the
Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such
Lender.
Section 2.11 .
Optional Prepayments
. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing
(except for Eurodollar Loans which the Borrower may only prepay on
the expiration of the current Interest Period), in whole or in
part, without premium or penalty by giving irrevocable written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of
any Eurodollar Borrowing, 11:00 a.m. (Atlanta, Georgia time) not
less than three (3) Business Days prior to any such prepayment,
(ii) in the case of any prepayment of any Base Rate Borrowing, not
less than one Business Day prior to the date of such prepayment,
and (iii) in the case of Swingline Borrowings, prior to 11:00 a.m.
(Atlanta, Georgia time) on the date of such prepayment. Each
such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing
or portion thereof to be prepaid. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender’s
Pro Rata Share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall be due
and payable on the date designated in such notice, together with
accrued interest to such date on the amount so prepaid in
accordance with Section 2.13(e); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day
of an Interest Period applicable thereto, the Borrower shall also
pay all amounts required pursuant to Section 2.19. Each
partial prepayment of any Loan (other than a Swingline Loan) shall
be in an amount that would be permitted in the case of an advance
of a Revolving Borrowing of the same Type pursuant to
Section 2.2 or in the case of a Swingline Loan pursuant to
Section 2.4. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing.
Section 2.12 .
Mandatory Prepayments
. If at any
time (i) the Dollar Equivalent of the Revolving Credit Exposure of
all Lenders exceeds the Aggregate Revolving Commitment Amount, as
reduced pursuant to Section 2.8 or otherwise or (ii) the
aggregate principal amount of all Letter of Credit Obligations
exceeds an amount equal to 105% of the LC Commitment,
the
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Borrower shall immediately
repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such
excess amount and any amounts due under Section 2.19.
Each prepayment shall be applied first to
