Exhibit 10.1
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CREDIT AGREEMENT
Dated as of April 13, 2005
between
SS&C TECHNOLOGIES, INC.
as the Borrower,
FLEET NATIONAL BANK,
A BANK OF AMERICA COMPANY
as Lender and L/C Issuer
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS........................................................... 1
1.01 Defined Terms.............................................................................. 1
1.02 Other Interpretive Provisions.............................................................. 16
1.03 Accounting Terms........................................................................... 17
1.04 Rounding................................................................................... 17
1.05 Times of Day............................................................................... 17
1.06 Letter of Credit Amounts................................................................... 17
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS...................................................... 19
2.01 Committed Loans............................................................................ 19
2.02 Borrowings, Conversions and Continuations of Committed Loans............................... 19
2.03 Letters of Credit.......................................................................... 20
2.04 Prepayments................................................................................ 24
2.05 Termination or Reduction of Commitment..................................................... 25
2.06 Repayment of Loans......................................................................... 25
2.07 Interest................................................................................... 25
2.08 Fees....................................................................................... 26
2.09 Computation of Interest and Fees........................................................... 26
2.10 Evidence of Debt........................................................................... 26
2.11 Payments Generally......................................................................... 27
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..................................................... 27
3.01 Taxes...................................................................................... 27
3.02 Illegality................................................................................. 29
3.03 Inability to Determine Rates............................................................... 29
3.04 Increased Costs............................................................................ 30
3.05 Compensation for Losses.................................................................... 31
3.06 Mitigation Obligations..................................................................... 32
3.07 Survival................................................................................... 32
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................................. 32
4.01 Conditions of Initial Credit Extension..................................................... 32
4.02 Conditions to all Credit Extensions........................................................ 34
ARTICLE V. REPRESENTATIONS AND WARRANTIES............................................................. 34
5.01 Existence, Qualification and Power; Compliance with Laws................................... 34
5.02 Authorization; No Contravention............................................................ 34
5.03 Governmental Authorization; Other Consents................................................. 35
5.04 Binding Effect............................................................................. 35
5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event................ 35
5.06 Litigation................................................................................. 35
5.07 No Default................................................................................. 36
5.08 Ownership of Property; Liens............................................................... 36
5.09 Environmental Compliance................................................................... 36
5.10 Insurance.................................................................................. 36
5.11 Taxes...................................................................................... 36
5.12 ERISA Compliance........................................................................... 36
5.13 Subsidiaries; Equity Interests............................................................. 37
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5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............. 37
5.15 Disclosure................................................................................. 37
5.16 Compliance with Laws....................................................................... 38
5.17 Intellectual Property; Licenses, Etc....................................................... 38
5.18 Solvency................................................................................... 38
ARTICLE VI. AFFIRMATIVE COVENANTS...................................................................... 38
6.01 Financial Statements....................................................................... 38
6.02 Certificates; Other Information............................................................ 39
6.03 Notices.................................................................................... 40
6.04 Payment of Obligations..................................................................... 41
6.05 Preservation of Existence, Etc............................................................. 41
6.06 Maintenance of Properties.................................................................. 41
6.07 Maintenance of Insurance................................................................... 41
6.08 Compliance with Laws....................................................................... 42
6.09 Books and Records.......................................................................... 42
6.10 Inspection Rights.......................................................................... 42
6.11 Use of Proceeds............................................................................ 42
6.12 Additional Guarantors...................................................................... 42
ARTICLE VII. NEGATIVE COVENANTS......................................................................... 43
7.01 Liens...................................................................................... 43
7.02 Investments................................................................................ 44
7.03 Indebtedness............................................................................... 44
7.04 Fundamental Changes........................................................................ 45
7.05 Dispositions............................................................................... 46
7.06 Restricted Payments........................................................................ 46
7.07 Change in Nature of Business............................................................... 47
7.08 Transactions with Affiliates............................................................... 47
7.09 Burdensome Agreements...................................................................... 47
7.10 Use of Proceeds............................................................................ 47
7.11 General Partner............................................................................ 47
7.12 Financial Covenants........................................................................ 47
7.13 Limited Exception for Target............................................................... 47
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES............................................................. 48
8.01 Events of Default.......................................................................... 48
8.02 Remedies Upon Event of Default............................................................. 50
8.03 Application of Funds....................................................................... 50
ARTICLE IX. MISCELLANEOUS.............................................................................. 51
9.01 Amendments, Etc............................................................................ 51
9.02 Notices; Effectiveness; Electronic Communication........................................... 51
9.03 No Waiver; Cumulative Remedies............................................................. 52
9.04 Expenses; Indemnity; Damage Waiver......................................................... 52
9.05 Payments Set Aside......................................................................... 53
9.06 Successors and Assigns..................................................................... 54
9.07 Treatment of Certain Information; Confidentiality.......................................... 55
9.08 Right of Setoff............................................................................ 56
9.09 Interest Rate Limitation................................................................... 56
9.10 Counterparts; Integration; Effectiveness................................................... 56
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9.11 Survival of Representations and Warranties................................................. 57
9.12 Severability............................................................................... 57
9.13 Governing Law; Jurisdiction; Etc........................................................... 57
9.14 Waiver of Jury Trial....................................................................... 58
9.15 USA PATRIOT Act Notice..................................................................... 59
SIGNATURES.............................................................................................. S-1
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SCHEDULES
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries; Other Equity Investments; Equity Interests in the
Borrower
5.17 Intellectual Property Matters
7.01 Existing Liens
7.03 Existing Indebtedness
7.06 Permitted Redemptions of Equity Interests
9.02 Lender's Office; Certain Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Note
C Compliance Certificate
D Assignment and Assumption
E Guaranty
F Opinion Matters
G Joinder Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of APRIL 13, 2005,
between SS&C TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), and
FLEET NATIONAL BANK, a Bank of America company, as Lender ("Lender") and L/C
Issuer.
The Borrower has requested that the Lender provide a revolving credit
facility, and the Lender is willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means the purchase by Borrower or a Subsidiary of Borrower
of certain shares of the issued and outstanding capital stock of Target pursuant
to the terms and conditions of the Acquisition Agreement.
"Acquisition Agreement" means that certain Acquisition Agreement by and
between Borrower and Target, dated February 25, 2005.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Lender.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this Credit Agreement.
"Applicable Rate" means (a) in the case of Eurodollar Rate Loans, 100
basis points, and (b) in the case of Base Rate Loans, 0 basis points.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignee Group" means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an assignment and assumption entered
into by Lender and an Eligible Assignee (with the consent of any party whose
consent is required by
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Section 9.06(b), in substantially the form of Exhibit D or any other form
approved by the Lender and the Borrower.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2004, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date of the Commitment, (b) the date of
termination of the Commitment pursuant to Section 2.05, and (c) the date of
termination of the commitment of Lender to make Loans and of the obligation of
the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Committed Loan that bears interest based on the
Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Lender's Office is located and, if such day
relates to any Eurodollar Rate Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
"Cash Collateralize" has the meaning specified in Section 2.03(f).
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change
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in any law, rule, regulation or treaty or in the administration, interpretation
or application thereof by any Governmental Authority, or (c) the making or
issuance of any request, guideline or directive (whether or not having the force
of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of 50% or more
of the equity securities of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above or (iii)
whose election or nomination to that board or other equivalent governing
body was approved by individuals referred to in clauses (i) and (ii)
above; or
(c) any Person or two or more Persons, other than Xxxxxxx X. Xxxxx,
acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or
policies of the Borrower, or control over the equity securities of the
Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such Person or group has the
right to acquire pursuant to any option right) representing 50% or more of
the combined voting power of such securities.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 9.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means Lender's obligation to (a) make Committed Loans to the
Borrower pursuant to Section 2.01, and (b) to make L/C Credit Extensions
pursuant to Section 2.03, in an aggregate principal amount at any one time
outstanding not to exceed $75,000,000 until the Reduction Date at which time the
Commitment shall be permanently reduced to $50,000,000 and
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all Outstanding Amounts in excess of $50,000,000 shall be repaid immediately, as
such amount may be adjusted from time to time in accordance with this Agreement.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) Federal, state, local and foreign income tax expense of the Borrower and
its Subsidiaries for such period, (iii) depreciation and amortization expense
and (iv) other non-recurring expenses of the Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such
period or any future period and minus (b) the following to the extent included
in calculating such Consolidated Net Income: (i) Federal, state, local and
foreign income tax credits of the Borrower and its Subsidiaries for such period
and (ii) all non-cash items increasing Consolidated Net Income for such period.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) without duplication, the portion of rent expense of the Borrower and its
Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Committed Loan and
(b) an L/C Credit Extension.
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"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means when used with respect to any Obligations, an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to the applicable Obligation plus 4% per annum.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary of the Borrower that is
organized under the laws of any political subdivision of the United States and
does not have as its direct or indirect parent an organization that is not
organized under the laws of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; or (d) any other Person (other than a natural person) approved
by (i) in the case of clause (d), the Lender and the L/C Issuer, and (ii) in the
case of clauses (b), (c) and (d), unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that the approval of the Borrower shall not be required in
connection with assignments to an Affiliate of a Lender or Approved Fund so long
as such assignment would not result in material increased costs to the Borrower
pursuant to Section 3.04; provided, further that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into
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the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Rate" means, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by
the Lender from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such time
for any reason, then the "Eurodollar Rate" for such Interest Period shall be the
rate per annum determined by the Lender to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their
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request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to the Lender or any other recipient
of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) 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
and (b) any branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which the Borrower is located.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Lender.
"FMC Ltd." shall have the meaning set forth in Section 6.12 hereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means 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.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of 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
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government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantee" means, as to any Person, any (a) obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, OMR Systems Corporation, a New Jersey
corporation, and each entity which hereafter becomes a party to the Guaranty.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Lender, substantially in the form of Exhibit E.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under standby letters of credit bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
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(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interest in
such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 9.04(b).
"Information" has the meaning specified in Section 9.07.
"Interest Payment Date" means, (a) as to any Committed Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to such
Committed Loan and the Maturity Date; and (b) as to any Base Rate Loan, the last
Business Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two or three
months thereafter, as selected by the Borrower in its Committed Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
9
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Internal Control Event" means a material weakness in, or fraud that
involves management or other employees who have a significant role in, the
Borrower's internal controls over financial reporting, in each case as described
in the Securities Laws.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lender's Office" means the Lender's address and, as appropriate, account
as set forth on Schedule 9.02, or such other address or account as the Lender
may from time to time notify to the Borrower.
10
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means the Lender in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Letter of Credit" means any letter of credit issued hereunder. A Letter
of Credit may be a commercial letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is not later than
180 days following the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(h).
"Letter of Credit Sublimit" means an amount equal to $5,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Commitment.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loan Documents" means this Agreement, the Note, each Issuer Document, and
the Guaranty together with all amendments, modifications, renewals, or
extensions thereof.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
11
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) of the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of any Loan Party to perform its obligations under any Loan Document
to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Material Domestic Subsidiary" means, as at the end of any fiscal quarter,
a Domestic Subsidiary with annual revenues during the trailing twelve (12) month
period of greater than $10,000,000.
"Maturity Date" means April 12, 2007.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Non-U.S. Lender" shall have the meaning set forth in Section 3.01(b)
hereof.
"Note" means the promissory note made by the Borrower in favor of the
Lender, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means 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 under any other Loan Document (other than Excluded
Taxes) or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
12
"Outstanding Amount" means (i) with respect to Committed Loans on any
date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Committed Loans, occurring on
such date; and (ii) with respect to any L/C Obligations on any date, the amount
of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means acquisitions by the Borrower or any
Subsidiary of Borrower (excluding the Acquisition) of all or substantially all
of the business and assets or not less than 100% of the outstanding capital
stock or other equity interests of any corporation, partnership, limited
liability company, a division of any corporation or limited liability company or
any similar business unit (each, an "acquisition") so long as (i) in the case of
each such acquisition of capital stock, such acquisition was not preceded by an
unsolicited tender offer for such capital stock by the Borrower or any of its
Affiliates; (ii) the corporation, partnership, limited liability company,
division, business or assets, as applicable, to be acquired by the Borrower is
predominantly in the Borrower's existing lines of business or businesses
reasonably related thereto, (iii) the total consideration to be paid by the
Borrower for such acquisition (net of that portion, if any, of such
consideration contributed to the Borrower by its shareholders as subordinated
debt or as equity) does not exceed $50 million; (iv) in the case of each
acquisition: (1) at the time thereof Borrower has cash on hand or unused
Commitment under this Agreement of not less than $10 million, and (2)
immediately after giving effect to such acquisition (including, but not limited
to, the total consideration paid for such acquisition, any Committed Loans used
to finance the cash consideration paid in connection with such acquisition and
the payment of all fees and expenses related thereto), the Borrower shall
continue to have cash on hand or unused Commitment under this Agreement of not
less than $10 million; (v) the Borrower shall have delivered to the Lender a
certificate certifying that at the time of and immediately after giving effect
to such acquisition, (1) no Default or Event of Default has occurred and is
continuing, and (2) the Borrower shall be in compliance with Section 7.12 and
the Borrower shall have provided evidence of such compliance to the Lender on a
pro forma combined basis; (vi) such acquisition does not result in any material
change in the management of the Borrower; and (vii) the assets or business being
acquired by the Borrower or its Subsidiary shall have had a positive
Consolidated EBITDA for the twelve-month fiscal period immediately preceding the
date of such acquisition. For purposes hereof, "total consideration" shall mean
the sum of (x) the amount in dollars actually paid by the Borrower or its
Subsidiary upon the closing of the acquisition and (y) the aggregate amount of
indebtedness (which shall constitute
13
subordinated debt only, unless otherwise agreed in writing by Lender) assumed by
the Borrower in connection with the acquisition.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Reduction Date" means the earliest to occur of June 30, 2005 or the date
that is forty-five (45) days following the closing of the Acquisition.
"Registered Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of the Borrower as prescribed by the
Securities Laws.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means with respect to a Committed Loan,
conversion or continuation of a Committed Loan, a Committed Loan Notice.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof).
"Xxxxxxxx-Xxxxx" means the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing
principles, rules, standards and
14
practices promulgated, approved or incorporated by the SEC or the Public Company
Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include the Lender or any Affiliate of
the Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Target" means Financial Models Company Inc., a Canada-based
publicly-traded company.
15
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $1,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) 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." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and contract rights.
16
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Lender shall so request, the Lender and
the Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of the Lender); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Lender financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 - Consolidation of Variable
Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such
variable interest entity were a Subsidiary as defined herein.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic
17
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.
18
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, the Lender agrees to make loans (each such loan, a "Committed Loan") to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of the Commitment; provided, however, that after giving effect to any Committed
Loan, the Total Outstandings shall not exceed the Commitment. Within the limits
of the Commitment and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay under Section 2.05, and
reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Each advance of a Committed Loan, each conversion of a Committed Loan
from one Type to the other, and each continuation of Eurodollar Rate Loans shall
be made upon the Borrower's irrevocable notice to the Lender, which may be given
by telephone. Each such notice must be received by the Lender not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) on the requested
date of any Borrowing of Base Rate Committed Loan. Each telephonic notice by the
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Lender of a written Committed Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Except as provided
in Sections 2.03(c) and 2.04(b), each Borrowing of or conversion to Base Rate a
Committed Loan shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Committed
Borrowing, a conversion of a Committed Loan from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of a Committed Loan to be borrowed, converted or
continued, (iv) the Type of Committed Loan to be borrowed or to which an
existing Committed Loan is to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. If the Borrower fails to specify a
Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation, then the
applicable Committed Loan shall be made as, or converted to, a Base Rate Loan.
Any such automatic conversion to a Base Rate Loan shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loan. If the Borrower requests a Borrowing of, conversion to, or
continuation of a Eurodollar Rate Loan in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Lender shall advance
the Committed Loan by (i) crediting the account of the Borrower on the books of
Lender with the amount of such Loan or (ii) wire transfer of such funds, in each
case in accordance with
19
instructions provided to (and reasonably acceptable to) the Lender by the
Borrower; provided, however, that if, on the date the Committed Loan Notice with
respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings, and second, shall be made available
to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loan may be
requested as, converted to or continued as Eurodollar Rate Loans.
(d) The Lender shall promptly notify the Borrower of the interest rate
applicable to any Interest Period for Eurodollar Rate Loans upon determination
of such interest rate. At any time that Base Rate Loans are outstanding, the
Lender shall notify the Borrower of any change in Lender's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than six Interest Periods in
effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, the L/C
Issuer agrees, (1) from time to time on any Business Day during the period
from the Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of the Borrower, and to amend Letters of
Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of
Credit, (y) the Total Outstandings shall not exceed the Commitment, and
(z) the Outstanding Amount of the L/C Obligations shall not exceed the
Letter of Credit Sublimit. Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies with
the conditions set forth in the proviso to the preceding sentence. Within
the foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if the
expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date,
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
20
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) such Letter of Credit is to be denominated in a currency
other than Dollars.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer in
the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer not later than 11:00 a.m.
at least two Business Days (or such later date and time as the L/C Issuer
may agree in a particular instance in its sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to be presented
by such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may reasonably require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer may
reasonably require. Additionally, the Borrower shall furnish to the L/C
Issuer and the Lender such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Lender may reasonably require.
(ii) Unless the L/C Issuer has knowledge that one or more applicable
conditions contained in Article IV shall not then be satisfied, then,
subject to the terms
21
and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with
the L/C Issuer's usual and customary business practices.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrower shall reimburse the L/C Issuer in an amount
equal to the amount of such drawing. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing of a Base Rate Loan to be
disbursed on the Honor Date in an amount equal to the unreimbursed drawing
(the "Unreimbursed Amount"), without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of the Base Rate Loan,
but subject to the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer
pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of a Base Rate Loan because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate.
(d) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the L/C Issuer or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
22
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
L/C Issuer under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will promptly notify the L/C Issuer. The Borrower shall be conclusively
deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(e) Role of L/C Issuer. The Borrower agrees that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document. The Borrower hereby assumes all risks
of the acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, any of its Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(d); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower shall have a claim against the L/C
Issuer, and the L/C Issuer shall be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
23
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason.
(f) Cash Collateral. Upon the request of the Lender, if, as of the Letter
of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.04 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.04 and Section 8.02(c), "Cash
Collateralize" means to pledge and deposit with or deliver to the L/C Issuer, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the L/C Issuer. Derivatives
of such term have corresponding meanings. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Lender and shall be subject to
the Lender's rights under Section 9.08 hereof.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the rules of
the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the
Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of issuance shall apply to
each commercial Letter of Credit.
(h) Letter of Credit Fees. The Borrower shall pay to the Lender a Letter
of Credit fee (the "Letter of Credit Fee") (i) for each Letter of Credit equal
to 1% per annum times the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. Letter of Credit Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand.
In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(i) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
2.04 PREPAYMENTS.
(a) The Borrower may, upon notice to the Lender, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Lender not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loan and (B) on the date of prepayment of Base Rate Committed
Loan; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof; and (iii)
any
24
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05.
(b) If for any reason the Total Outstandings at any time exceed the
Commitment then in effect, the Borrower shall immediately prepay Loans in an
aggregate amount equal to such excess.
2.05 TERMINATION OR REDUCTION OF COMMITMENT. The Borrower may, upon notice
to the Lender, terminate the Commitment, or from time to time permanently reduce
the Commitment; provided that (i) any such notice shall be received by the
Lender not later than 11:00 a.m. five Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Commitment if,
after giving effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Commitment, and (iv) if, after giving effect
to any reduction of the Commitment, the Letter of Credit Sublimit exceeds the
amount of the Commitment, such Sublimit shall be automatically reduced by the
amount of such excess. All fees accrued until the effective date of any
termination of the Commitment, in full, shall be paid on the effective date of
such termination.
2.06 REPAYMENT OF LOANS.
The Borrower shall repay to the Lender on the Maturity Date the aggregate
principal amount of any Committed Loans outstanding on such date.
2.07 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Committed Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request
25
of the Lender, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iii) Upon the request of the Lender, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.08 FEES. In addition to certain fees described in subsection (h) of
Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Lender a commitment fee
equal to the 0.125% per annum times the actual daily amount by which the
Commitment exceeds the sum of (i) the Outstanding Amount of Committed Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue
at all times during the Availability Period, including at any time during which
one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date. The commitment fee shall be calculated
quarterly in arrears.
2.09 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Lender's "prime rate" shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall bear interest for one day. Each
determination by the Lender of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.
2.10 EVIDENCE OF DEBT.
The Credit Extensions made by Lender shall be evidenced by one or more
accounts or records maintained by Lender in the ordinary course of business. The
accounts or records maintained by the Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lender to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations.
26
2.11 PAYMENTS GENERALLY.
General. Except as specifically provided in Section 3.01(a), all payments
to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the
Lender, for the account of the Lender to which such payment is due at the
Lender's Office in Dollars and in immediately available funds not later than
2:00 p.m. on the date specified herein. All payments received by the Lender
after 2:00 p.m. shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes (other than with respect to amounts owing to the Lender or
an Eligible Assignee that (y) is not incorporated under the laws of the United
States of America or a state thereof and (z) has not delivered to the Lender the
forms referred to in Section 3.01(b)), provided that if the Borrower shall be
required by applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Lender or L/C
Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall timely pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) The Lender and any Eligible Assignee that is not a U.S. Person as
defined in Section 7701(a)(30) of the Code for federal income tax purposes (a
"Non-U.S. Lender") hereby agrees that, if and to the extent it is legally able
to do so, it shall, on the date it becomes a Lender hereunder, deliver to the
Borrower such certificates, documents of other evidence, as and when required by
the Code or Treasury Regulations issued pursuant thereto, including (a) in the
case of a Non-U.S. Lender that is a "bank" for purposes of Section 881(c)(3)(A)
of the Code, two (2) duly completed copies of Internal Revenue Service Form
W-8BEN or Form W-8ECI and any other certificate or statement of exemption
required by Treasury Regulations, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Lender
establishing that with respect to payments of principal, interest or fees
hereunder it is (i) not subject to United States federal withholding tax under
the Code because such payment is effectively connected with the conduct by such
Lender or Eligible Assignee of a trade or business in the United States or (ii)
totally exempt from United States federal withholding tax under a provision of
an applicable tax treaty and (b) in the case of a Non-U.S. Lender that is not a
"bank" for purposes of Section 881(c)(3)(A) of the Code, a certificate in form
and substance
27
reasonably satisfactory to the Lender and the Borrower and to the effect that
(i) such Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A) of
the Code, is not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any governmental authority,
any application made to a rating agency or qualification for any exemption from
any tax, securities law or other legal requirements, (ii) is not a ten (10)
percent shareholder for purposes of Section 881(c)(3)(B) of the Code and (iii)
is not a controlled foreign corporation receiving interest from a related person
for purposes of Section 881(c)(3)(C) of the Code, together with a properly
completed Internal Revenue Service Form W-I or W-9, as applicable (or successor
forms). The Lender or any Eligible Assignee agrees that it shall, promptly upon
a change of its lending office or the selection of any additional lending
office, to the extent the forms previously delivered by it pursuant to this
section are no longer effective, and promptly upon the Borrower's or the
Lender's reasonable request after the occurrence of any other event (including
the passage of time) requiring the delivery of a Form W-8BEN, Form W-8ECI, Form
W-8 or W-9 in addition to or in replacement of the forms previously delivered,
deliver to the Borrower and the Lender, as applicable, if and to the extent it
is properly entitled to do so, a properly completed and executed Form W-8BEN,
Form W-8ECI, Form W-8 or W-9, as applicable (or any successor forms thereto).
Without limiting the obligations of the Lender set forth above regarding
delivery or certain forms and documents to establish each Lender's status for
U.S. withholding tax purposes, each Lender or Eligible Assignee agrees promptly
to deliver to the Lender or the Borrower, as the Lender or the Borrower shall
reasonably request, on or prior to the Closing Date, and in a timely fashion
thereafter, such other documents and forms required by any relevant taxing
authorities under the laws of any other jurisdiction, duly executed and
completed by such Lender or Eligible Assignee, as are required under such laws
to confirm such Lender's entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all payments to be made
to such Lender or Eligible Assignee outside of the U.S. by the Borrower pursuant
to this Agreement or otherwise to establish such Lender's status for withholding
tax purposes in such other jurisdiction. Additionally, the Borrower shall
promptly deliver to the Lender, on or prior to the Closing Date, and in a timely
fashion thereafter, such documents and forms required by any relevant taxing
authorities under the laws of any jurisdiction, duly executed and completed by
the Borrower, as are required to be furnished by the Lender under such laws in
connection with any payment by the Lender or any Eligible Assignee of taxes or
otherwise in connection with the Loan Documents, with respect to such
jurisdiction. This Section 3.01(b) shall not be construed to require the Lender
or any Eligible Assignee to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or
any other Person.
(c) Payment of Other Taxes by the Borrower. Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(d) Indemnification by the Borrower. The Borrower shall indemnify the
Lender and the L/C Issuer, within 10 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally
28
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by the Lender
or the L/C Issuer, shall be conclusive absent manifest error.
(e) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Lender the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Lender.
(f) Treatment of Certain Refunds. If the Lender or the L/C Issuer receives
a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Lender or the L/C Issuer, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the Lender or the L/C
Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Lender or the L/C Issuer in the event the Lender or the L/C
Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower or any other Person.
3.02 ILLEGALITY. If the Lender determines that any Change in Law has made
it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for the Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or to determine or charge interest rates based upon
the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of the Lender to purchase or sell, or to take
deposits of, Dollars in the London interbank market, then, on notice thereof by
the Lender to the Borrower, any obligation of the Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate
Loans shall be suspended until the Lender notifies the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Borrower shall, upon demand from the Lender, prepay or, if
applicable, convert all Eurodollar Rate Loans of the Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if the Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if the Lender may not lawfully continue to maintain such Eurodollar
Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.
3.03 INABILITY TO DETERMINE RATES. If the Lender determines that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion
to or continuation thereof that (a) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means
do not exist for determining the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan , or (c) the Eurodollar
Rate for any
29
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to the Lender of funding such Loan,
the Lender will promptly so notify the Borrower. Thereafter, the obligation of
the Lender to make or maintain Eurodollar Rate Loans shall be suspended until
the Lender revokes such notice. Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
3.04 INCREASED COSTS.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, the Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer;
(ii) subject the Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurodollar Rate Loan made by
it, or change the basis of taxation of payments to the Lender or the L/C
Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate
of, any Excluded Tax payable by the Lender or the L/C Issuer); or
(iii) impose on the Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by the Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to the
Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to the Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or
of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by the Lender
or the L/C Issuer hereunder (whether of principal, interest or any other amount)
then, upon request of the Lender or the L/C Issuer, the Borrower will pay to the
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate the Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If the Lender or the L/C Issuer determines that
any Change in Law affecting the Lender or the L/C Issuer or any Lending Office
of the Lender or the Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on the Lender's or the L/C Issuer's capital or on the capital of the
Lender's or the L/C Issuer's holding company, if any, as a consequence of this
Agreement, the Commitments, the Loans, or the Letters of Credit, to a level
below that which the Lender or the L/C Issuer or the Lender's or the L/C
Issuer's holding company could have achieved but for such Change in Law (taking
into consideration the Lender's or the L/C Issuer's policies and the policies of
the Lender's or the L/C Issuer's holding company with
30
respect to capital adequacy), then from time to time the Borrower will pay to
the Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as will compensate the Lender or the L/C Issuer or the Lender's or the
L/C Issuer's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of the Lender or the L/C
Issuer setting forth the amount or amounts necessary to compensate the Lender or
the L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay the Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of the Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of the Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be required to
compensate the Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
two months prior to the date that the Lender or the L/C Issuer, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of the Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the two-month period referred
to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to the
Lender, as long as the Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by the Lender (as determined by
the Lender in good faith, which determination shall be conclusive), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days' prior notice of such
additional interest from the Lender. If the Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of the Lender from time to time,
the Borrower shall promptly compensate the Lender for and hold the Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower;
31
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained, but excluding any loss of
anticipated profits. The Borrower shall also pay any customary administrative
fees charged by the Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lender under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the London interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan was
in fact so funded.
3.06 MITIGATION OBLIGATIONS.
Designation of a Different Lending Office. If the Lender requests
compensation under Section 3.04, or the Borrower is required to pay any
additional amount to the Lender or any Governmental Authority for the account of
the Lender pursuant to Section 3.01, or if the Lender gives a notice pursuant to
Section 3.02, then the Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of the Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would not subject the
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to the Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by the Lender in connection with any such
designation or assignment.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) The Lender's receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Lender:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) a Note executed by the Borrower in favor of the Lender;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Lender may require evidencing the identity, authority
and capacity of each Responsible Officer
32
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) such documents and certifications as the Lender may reasonably
require to evidence that each Loan Party is duly organized or formed, and
that each of the Borrower and the Guarantors is validly existing, in good
standing and qualified to engage in business in each jurisdiction where
its ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx
LLP, counsel to the Loan Parties, addressed to the Lender, as to the
matters set forth in Exhibit F and such other matters concerning the Loan
Parties and the Loan Documents as the Lender may reasonably request;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, and (B) that there has been no event or circumstance
since the date of the Audited Financial Statements that has had or would
be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;
(b) Lender shall have reviewed and be reasonably satisfied with, and
consented in writing to the final terms and conditions of any material amendment
or modification to the Acquisition Agreement, it being agreed and understood
that any increase in the Target per share offer price of CAN$17.70 shall be
deemed to be a material amendment.
(c) Lender shall have consented in writing to any waiver by Borrower of
any condition precedent to the execution of its tender offer for the Target as
set forth in Section 3 and Schedule 1.1 of the Acquisition Agreement.
(d) The total purchase price to be paid by Borrower or a Subsidiary to
acquire the tendered shares of Target under the Acquisition Agreement shall not
exceed $166,000,000.
(e) The Closing Date shall occur on or prior to May 31, 2005, unless the
Lender has agreed to a later date.
(f) Any fees required to be paid on or before the Closing Date shall have
been paid.
(g) Unless waived by the Lender, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Lender to the extent invoiced prior
to or on the Closing Date.
33
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of the Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, (i) except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, (ii) except to the extent that transactions
permitted by this Agreement cause such representations and warranties to be
untrue, in which case they shall be true and correct except for such permitted
subsequent transactions, and (iii) except that for purposes of this Section
4.02, the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Lender and, if applicable, the L/C Issuer shall have received a
Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and carry
on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws; except in each
case referred to in clause (b)(i), (c) or (d), to the extent that failure to do
so would not reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a)
34
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law. Each
Loan Party is in compliance with all Contractual Obligations referred to in
clause (b)(i), except to the extent that failure to do so would not reasonably
be expected to have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or the
Acquisition Agreement, except for ministerial acts in connection with the
Acquisition where the failure to obtain such approval would not reasonably be
expected to have a Material Adverse Effect.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL
EVENT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) [Intentionally Omitted]
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
would reasonably be expected to have a Material Adverse Effect.
(d) Since the date of the Audited Financial Statements, no Internal
Control Event has occurred that has had or would reasonably be expected to have
a Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower, threatened, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
35
Loan Document, or any of the transactions contemplated hereby, or (b) except as
specifically disclosed in Schedule 5.06, either individually or in the
aggregate, if determined adversely, would reasonably be expected to have a
Material Adverse Effect, and there has been no material adverse change in the
status, or financial effect on any Loan Party or any Subsidiary thereof, of the
matters described on Schedule 5.06.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that would, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all of its properties and assets except for such defects
in title as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that, except as specifically disclosed in Schedule 5.09, such Environmental Laws
and claims would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to
36
the best knowledge of the Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification. The Borrower and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES; EQUITY INTERESTS. As of the Closing Date, the Borrower
has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries
have been validly issued, are fully paid and nonassessable and are owned by a
Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear
of all Liens. As of the Closing Date, the Borrower has no equity investments in
any other corporation or entity other than those specifically disclosed in
Part(b) of Schedule 5.13. As of the Closing Date, none of the Domestic
Subsidiaries other than the Guarantors are Material Domestic Subsidiaries.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. The Borrower has disclosed to the Lender all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject,
37
and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement
or delivered hereunder or under any other Loan Document (in each case, as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person which conflict would reasonably be
expected to result in a Material Adverse Effect. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person which infringement would reasonably be expected to result in a
Material Adverse Effect. Except as specifically disclosed in Schedule 5.17, no
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
5.18 SOLVENCY. The Borrower has capital sufficient to carry on its
business and transactions and is able to pay its debts as they mature.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as the Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Lender, in form and detail
satisfactory to the Lender:
38
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower (commencing with the fiscal year ended December
31, 2004), a consolidated and consolidating balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year, and the related consolidated
and consolidating statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all in reasonable detail and prepared
in accordance with GAAP, such consolidated statements to be audited and
accompanied by (i) a report and opinion of a Registered Public Accounting Firm
of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and applicable Securities
Laws and shall not be subject to any "going concern" or like qualification or
exception or any qualification or exception as to the scope of such audit and
(ii) an attestation report, if any, of such Registered Public Accounting Firm as
to the Borrower's internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx,
and such consolidating statements to be certified by a Responsible Officer of
the Borrower to the effect that such statements are fairly stated in all
material respects when considered in relation to the consolidated financial
statements of the Borrower and its Subsidiaries; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower
(commencing with the fiscal quarter ended March 31, 2005), a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated and consolidating
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Borrower's fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such consolidated statements to
be certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations, shareholders' equity and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes and such
consolidating statements to be certified by a Responsible Officer of the
Borrower to the effect that such statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements of
the Borrower and its Subsidiaries.
As to any information contained in materials furnished pursuant to Section 6.02,
the Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Lender, in form and
detail satisfactory to the Lender:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower;
(b) promptly after any request by the Lender, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors (or the audit
39
committee of the board of directors) of the Borrower by independent accountants
in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Lender
pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lender
pursuant to Section 6.01 or any other clause of this Section 6.02;
(e) promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Lender may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 9.02; or (ii)
on which such documents are posted on the Borrower's behalf on an Internet or
intranet website, if any, to which the Lender has access; provided that: (i) the
Borrower shall deliver paper copies of such documents if requested by the Lender
and (ii) the Borrower shall notify the Lender (by telecopier or electronic mail)
of the posting of any such documents and provide to the Lender by electronic
mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 6.02(a)
to the Lender.
6.03 NOTICES. Promptly notify the Lender:
(a) of the occurrence of any Default;
(b) of any (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Borrower or any
Subsidiary and any Governmental Authority; (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Borrower or
any Subsidiary, including pursuant to any applicable Environmental Laws; or (iv)
other matter affecting the business or financial condition of the
40
Borrower, which in the case of any of the matters referred to in clause (i)
through (iv) above has resulted or would reasonably be expected to result in a
Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(e) of the occurrence of any Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon its property;
and (c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness in each case where the failure to pay or discharge such
obligations or liabilities would reasonably be expected to have a Material
Adverse Effect.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a
Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; and (b)
make all necessary repairs thereto and renewals and replacements thereof except,
in each case, where the failure to do so would not reasonably be expected to
have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
41
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent contractors
of the Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; with up to two such inspections during each
fiscal year of the Borrower to be at the expense of the Borrower, provided,
however, that when an Event of Default exists the Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions (a) to
finance in part the Acquisition, (b) to pay fees and expenses incurred in
connection with the Acquisition and entering into this Credit Agreement, and (c)
for general corporate purposes not in contravention of any Law or of any Loan
Document.
6.12 ADDITIONAL GUARANTORS. Notify the Lender at the time that any Person,
including any other Subsidiary, becomes a Material Domestic Subsidiary, and
promptly thereafter (and in any event within forty-five (45) days), cause such
Person to (a) become a Guarantor by executing and delivering to the Lender a
Joinder Agreement in the form set forth as Exhibit G attached hereto, and (b)
deliver to the Lender documents of the types referred to in clauses (iii) and
(iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form,
content and scope reasonably satisfactory to the Lender. In addition to the
foregoing requirement that all Material Domestic Subsidiaries become Guarantors
under the Guaranty, the Borrower agrees as follows: (i) immediately upon
Financial Models Company Ltd. ("FMC Ltd."), a New York corporation (and
presently a subsidiary of Target), becoming a direct Domestic Subsidiary of the
Borrower, the Borrower will cause FMC Ltd. to become a Guarantor in the manner
described in the preceding sentence, (ii) in the event that at the end of any
fiscal quarter the annual revenue of a Domestic Subsidiary (not at such time a
Guarantor) of the Borrower during the trailing twelve-month period is greater
than $10,000,000, the Borrower shall promptly (and in any event within
forty-five (45) days) cause such Domestic Subsidiary to become a Guarantor in
the manner described in the preceding sentence, and (iii) in
42
the event that at the end of any fiscal quarter the aggregate annual revenues of
all Domestic Subsidiaries (not at such time Guarantors) of the Borrower during
the trailing twelve month period is greater than $30,000,000, the Borrower shall
promptly (and in any event within forty-five (45) days) cause one or more of
such Domestic Subsidiaries to become Guarantors, in the manner described in the
preceding sentence, such that (after giving effect to such guaranties) the
aggregate annual revenues of all non-Guarantor Domestic Subsidiaries during the
trailing twelve months period is less than $30,000,000.
ARTICLE VII.
NEGATIVE COVENANTS
So long as the Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor, subject to Section
7.13, shall it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby
is not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case
43
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h); and
(i) Liens securing Indebtedness permitted under Section 7.03(e); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
cash equivalents or short-term (less than two (2) years to maturity) marketable
debt securities;
(b) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Borrower in any wholly-owned Subsidiary and
Investments of any wholly-owned Subsidiary in the Borrower or in another
wholly-owned Subsidiary;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.03;
(f) Permitted Acquisitions;
(g) the Acquisition;
(h) Investments described on Schedule 7.02; and
(i) other Investments not exceeding $1,000,000 in the aggregate in any
fiscal year of the Borrower.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that (i) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
44
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or the Lender than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of the Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned
Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations
and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(i); provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not exceed
$1,000,000; and
(f) Indebtedness of any Subsidiary to the Borrower or any other Subsidiary
in an aggregate principal amount not to exceed $7,000,000 (provided, that for
the limited purposes of this Section 7.03(f), the term "Subsidiary" shall be
limited to those Subsidiaries of Borrower that hold assets (including stock or
other equity interests of a Subsidiary) and/or have active business operations),
and Indebtedness of any Guarantor to the Borrower or any other Guarantor; and
(g) unsecured Indebtedness in an aggregate principal amount not to exceed
$1,000,000 at any time outstanding.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any Guarantor is merging with another
Subsidiary, the Guarantor shall be the continuing or surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor.
45
in such a transaction is a Guarantor, then the transferee must either be the
Borrower or a Guarantor.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property, in addition to Dispositions of inventory in
the ordinary course of business, by any Subsidiary to the Borrower or by the
Borrower or any Subsidiary to a wholly-owned Subsidiary; provided that if the
transferor of such property is a Guarantor, the transferee thereof must either
be the Borrower or a Guarantor;
(e) Dispositions permitted by Section 7.04; and
(f) non-exclusive licenses of IP Rights in the ordinary course of business
and substantially consistent with past practice for terms not exceeding five
years;
provided, however, that any Disposition pursuant to clauses (a) through (g)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any preferred stock, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower, the
Guarantors and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests; and
46
(d) the Borrower may declare or pay cash dividends to its stockholders as
approved by its board of directors and consistent with past practices.
(e) the Borrower may redeem or otherwise acquire for cash Equity Interests
issued by it in accordance with the stock buyback program described in Schedule
7.06.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower (other than a Guarantor), whether or not in
the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm's
length transaction with a Person other than an Affiliate.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i)
of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor
or to otherwise transfer property to the Borrower or any Guarantor, (ii) of any
Domestic Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 GENERAL PARTNER. Become a general partner of any partnership.
7.12 FINANCIAL COVENANTS.
(a) Quarterly Consolidated EBITDA. Permit its Consolidated EBITDA for any
full fiscal quarter ending after March 31, 2005, to be less than $5,000,000.
(b) Rolling Four Quarter Consolidated EBITDA. Permit its Consolidated
EBITDA for any period of four consecutive fiscal quarters beginning with the
four fiscal quarters ending June 30, 2005 and measured at the end of each fiscal
quarter thereafter, to be less than $25,000,000.
7.13 LIMITED EXCEPTION FOR TARGET.
To the extent that as of the Closing Date the Target has failed to perform
or observe any of the negative covenants set forth in this Article VII, such
failure shall not immediately
47
constitute an Event of Default under Section 8.01(b); provided, however, that
any such failure which would reasonably be expected to have a Material Adverse
Effect must be cured by the Borrower and Target no later than one hundred twenty
(120) days after the Closing Date, and any such failure to cure by the Borrower
and the Target shall constitute an Event of Default under Section 8.01(b)
hereof.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of or interest
on any Loan or (ii) upon demand any L/C Obligation, or (iii) within five days
after the same becomes due, any other amount payable hereunder or under any
other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10,
6.11 or 6.12 or Article VII, or any Guarantor fails to pay any obligation when
and as due in the Guaranty; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from any event of default under such Swap Contract
as to which the
48
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) and the Swap Termination Value owed by the Borrower or such Subsidiary
as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process in excess of the Threshold Amount is issued or levied against
all or any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order and are not promptly stayed, or (B) there is a
period of thirty (30) consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect; or any Loan Party
contests in any manner the validity or enforceability of any provision of any
Loan Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or
49
(k) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Lender may take any or all of the following actions:
(a) declare the Commitment of the Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
Commitment and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise all rights and remedies available to it and the Lender under
the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of the Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Lender in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Lender and amounts payable under Article III)
payable to the Lender in its capacity as such;
Second, to payment of that portion of the Obligations constituting accrued
and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and
other Obligations;
Third, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings;
Fourth, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit; and
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Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
MISCELLANEOUS
9.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Lender and the Borrower or the applicable Loan Party, as the case
may be, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
9.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier,
and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the address, telecopier number, electronic
mail address or telephone number specified for such Person on Schedule 9.02; and
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lender and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Lender.
Unless the Lender otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
51
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each party may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to
the other parties hereto.
(d) Reliance by Lender and L/C Issuer. The Lender and the L/C Issuer shall
be entitled to rely and act upon any notices (including telephonic Committed
Loan Notices) which it reasonably believes to have been given by or on behalf of
the Borrower. The Borrower shall indemnify the Lender and the L/C Issuer and the
Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Lender may be recorded by the Lender, and each of the
parties hereto hereby consents to such recording.
9.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by the Lender to exercise,
and no delay in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Lender and its Affiliates (including the
reasonable fees, charges and disbursements of counsel), in connection with the
preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Lender or the L/C Issuer (including the fees, charges and disbursements of any
counsel), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from
all fees and time charges and disbursements for attorneys who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee
by any third party or
52
by the Borrower or any other Loan Party arising out of, in connection with, or
as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
(ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby.
(d) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor.
(e) Survival. The agreements in this Section shall survive the termination
of the Commitment and the repayment, satisfaction or discharge of all the other
Obligations.
9.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of
the Borrower is made to the Lender or the L/C Issuer, or the Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Lender or the L/C Issuer in its discretion) to be repaid to a trustee,
53
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had
not occurred.
9.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Lender and the Lender may not assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (e) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of the Lender and the L/C Issuer) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Participations. The Lender may at any time, without the consent of, or
notice to, the Borrower, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower's Affiliates or Subsidiaries)
(each, a "Participant") in all or a portion of the Lender's rights and/or
obligations under this Agreement (including all or a portion of the Commitment
and/or the Loans owing to it); provided that (i) the Lender's obligations under
this Agreement shall remain unchanged, (ii) the Lender shall remain solely
responsible to the Borrower hereto for the performance of such obligations and
(iii) the Borrower shall continue to deal solely and directly with the Lender in
connection with such rights and obligations under this Agreement.
Any agreement or instrument pursuant to which the Lender sells such a
participation shall provide that the Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement. Subject to subsection (d) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (a) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender.
(d) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01, 3.04, or 3.05 than
the Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent.
(e) Certain Pledges. The Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under the Note) to secure
54
obligations of the Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release the Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for the Lender as a party hereto.
(f) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
9.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. The Lender, the
L/C Issuer and any assignee of the Lender's interest hereunder agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Lender, the
L/C Issuer or any of their respective Affiliates on a nonconfidential basis from
a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Lender or the L/C Issuer on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary, provided that, in the case of
information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
55
Each of the Lender, the L/C Issuer and any assignee of the Lender's
interest hereunder acknowledges that (a) the Information may include material
non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
9.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, the Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by the
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to the Lender or the L/C Issuer,
irrespective of whether or not the Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of the Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of the Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that the Lender, the L/C Issuer or their respective Affiliates may have.
The Lender and the L/C Issuer agrees to notify the Borrower promptly after any
such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
9.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Lender exceeds the Maximum Rate,
such Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.
9.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Lender and when the Lender shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a
56
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
9.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Lender,
regardless of any investigation made by the Lender or on their behalf and
notwithstanding that the Lender may have had notice or knowledge of any Default
at the time of any Credit Extension, and shall continue in full force and effect
as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.
9.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
57
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER OR THE L/C ISSUER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
9.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF
58
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
9.15 USA PATRIOT ACT NOTICE. The Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow the Lender to identify the Borrower in accordance with the Act.
[Remainder of Page Intentionally Left Blank]
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SS&C TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and CFO
S-1
FLEET NATIONAL BANK, A BANK OF AMERICA
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Market President
S-2
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Fleet National Bank, a Bank of America company, as Lender
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of April,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among SS&C Technologies, Inc., a Delaware
corporation (the "Borrower"), and Fleet National Bank, a Bank of America
company, as the Lender.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation of
Loans
1. On___________________________________________ (a Business Day).
2. In the amount of $___________________________.
3. Comprised of_________________________________.
[Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of______ months.
The Committed Borrowing, if any, requested herein complies with the
provisos to the first sentence of Section 2.01 of the Agreement.
SS&C TECHNOLOGIES, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
A - 1
Form of Committed Loan Notice
EXHIBIT B
FORM OF NOTE
April __, 2005
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to
pay to FLEET NATIONAL BANK, a Bank of America company, or registered assigns
(the "Lender"), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Loan from time to time made
by the Lender to the Borrower under that certain Credit Agreement, dated as of
April 13, 2005 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among the Borrower and Fleet
National Bank, a Bank of America company, as the Lender and L/C Issuer.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All
payments of principal and interest shall be made to the Lender for the account
of the Lender in Dollars in immediately available funds at the Lender's Office.
If any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.
This Note is the Note referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. This Note is also entitled to the benefits of the
Guaranty. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Loans made by the Lender shall be evidenced by one or
more loan accounts or records maintained by the Lender in the ordinary course of
business. The Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B - 1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SS&C TECHNOLOGIES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
B - 2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
INTEREST PRINCIPAL
TYPE OF AMOUNT OF END OF PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE INTEREST PERIOD DATE THIS DATE MADE BY
---- --------- --------- --------------- ------------ ----------- --------
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
____ _________ _________ _______________ ____________ ___________ ________
B - 3
Form of Note
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:_________ ,
To: Fleet National Bank, a Bank of America company
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of April 13,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among SS&C Technologies, Inc., a Delaware
corporation (the "Borrower"), and Fleet National Bank, a Bank of America company
(the "Lender").
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the ________________________ of the Borrower, and that, as such,
he/she is authorized to execute and deliver this Certificate to the Lender on
the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[select one:]
C-1
Form of Compliance Certificate
[to the best knowledge of the undersigned during such fiscal period, the
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of each such Default and its nature and status:]
4. The representations and warranties of the Borrower contained in Article
V of the Agreement, and any representations and warranties of any Loan Party
that are contained in any document furnished at any time under or in connection
with the Loan Documents, are true and correct on and as of the date hereof, (i)
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct as of such earlier
date, (ii) except to the extent that transactions permitted by this Agreement
cause such representatives and warranties to be untrue, in which case they shall
be true and correct except for such permitted subsequent transactions, and (iii)
except that for purposes of this Compliance Certificate, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01 of the Agreement, including
the statements in connection with which this Compliance Certificate is
delivered.
5. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
___________________,_______________.
SS&C TECHNOLOGIES, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
C-2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
CONSOLIDATED EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
CONSOLIDATED Quarter Quarter Quarter Quarter Twelve Months
EBITDA Ended Ended Ended Ended Ended
------ ---------- -------- -------- --------- -------------
Consolidated
Net Income
+ Consolidated Interest
Charges
+ income taxes
+ depreciation expense
+ amortization expense
+ non-recurring non-cash
expenses
- income tax credits
- non-cash income
= Consolidated EBITDA
C-3
Form of Compliance Certificate
EXHIBIT D
ASSIGNMENT AND ASSUMPTION(1)
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Lender as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: _________________________
2. Assignee: _________________________ [and is an Affiliate/Approved Fund of
[identify Lender](2)]
3. Borrower(s): _______________________
4. Lender: Fleet National Bank, a Bank of America company, as the Lender
under the Credit Agreement
----------
(1) BANK OF AMERICA PREFERENCE OR POLICY. Do not alter this Exhibit
without the approval of the Legal Department or Agency Management/Credit
Services. Based on LSTA Model Provisions.
(2) Select as applicable.
D-1
Assignment and Assumption
5. Credit Agreement: Credit Agreement, dated as of April 13, 2005, between
SS&C Technologies, Inc., and Fleet National Bank, a Bank of America
company, as Lender and L/C Issuer
6. Assigned Interest:(3)
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned(4) for the Lender* Assigned* Commitment/Loans(5) CUSIP Number
----------------- ----------------- ----------------- ------------------- ------------
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
_____________ $________________ $________________ ______________%
[7. Trade Date: __________________](6)
Effective Date: __________________, 20__ [TO BE INSERTED BY LENDER AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: __________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: __________________________
Title:
----------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
(3) The reference to "Loans" in the table should be used only if the
Credit Agreement provides for Term Loans.
(4) Fill in the appropriate terminology for the types of facilities under
the Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment", etc.).
(5) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of the Lender thereunder.
(6) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
D-2
Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________](7)
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section __ thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on the Lender or the Assignor and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
----------
(7) Describe Credit Agreement at option of Lender.
D-3
Assignment and Assumption
2. Payments. From and after the Effective Date, the Lender shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
D-4
Assignment and Assumption
EXHIBIT E
[FORM OF]
JOINT AND SEVERAL
CONTINUING GUARANTY AGREEMENT
This JOINT AND SEVERAL CONTINUING GUARANTY AGREEMENT (the "GUARANTY"),
dated as of April 13, 2005, jointly and severally by OMR SYSTEMS CORPORATION, a
New Jersey corporation (collectively with each Joinder Party (defined herein),
if any, the "GUARANTOR"), in favor of FLEET NATIONAL BANK, a Bank of America
company ("Lender").
PREAMBLE
In consideration of and as a material inducement for the Lender having
extended or in the future extending loans, advances or otherwise giving credit
to, or on behalf of, SS&C Technologies, Inc. a Delaware corporation (the
"BORROWER"), under a $75,000,000 revolving line of credit (the "LOAN"), such
Loan being made pursuant to the terms and conditions of, and evidenced by, among
other things, a Credit Agreement dated as of the date hereof between the
Borrower and the Lender (as the same may be amended, supplemented or modified
from time to time, the "CREDIT AGREEMENT") and a related $75,000,000 revolving
credit promissory note executed by the Borrower in favor of the Lender dated of
even date herewith (as the same may be amended, supplemented, modified or
replaced from time to time, the "NOTE"), the Guarantor does hereby jointly and
severally represent, warrant, covenant and agree as follows:
1. DEFINITIONS.
The term "Obligations" and all other capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE.
The Guarantor hereby jointly and severally guarantees to the Lender the
full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise), of (a) the principal of and premium,
if any, and interest on the Loan made to the Borrower under the Credit
Agreement, (b) obligations of the Borrower under the Note held by the Lender,
and (c) all other monetary Obligations of the Borrower to the Lender, including,
without limitation, all fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise, in each case whether now in
existence or hereafter incurred or arising, including all such interest, fees,
costs or charges which would become due but for the operation of the automatic
stay pursuant to ss.362(a) of the Federal Bankruptcy Code and the operation of
ss.ss.502(b) and 506(b) of the Federal BankruPtcy Code (collectively, the
"GUARANTEED OBLIGATIONS"). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment when due (whether at stated
maturity, by required pre-payment, by acceleration or otherwise) of all the
Guaranteed Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Lender first attempt to collect any of
the Guaranteed Obligations from the Borrower or any other Person
E-1
Form of Guaranty
primarily or secondarily liable with respect to any of the Guaranteed
Obligations or resort to any collateral security or other means of obtaining
payment. Should the Borrower default in the payment or performance of any of the
Guaranteed Obligations, the obligations of the Guarantor hereunder with respect
to such Guaranteed Obligations in default shall become immediately due and
payable to the Lender without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor hereunder may be
required by the Lender on any number of occasions. All payments by the Guarantor
hereunder shall be made to the Lender, in the manner and at the place of payment
specified therefor in the Credit Agreement, for the account of the Lender.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC.
The Guarantor further jointly and severally agrees, as the principal
obligor and not as guarantor only, to pay to the Lender, on demand, all costs
and expenses (including court costs and legal expenses) incurred or expended by
the Lender in connection with the Guaranteed Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
ss.3 from the time when such amounts become due until payment thereof, whether
before or after judgment, at the rate of interest set forth in ss.2.07 of the
Credit Agreement, provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
4. WAIVERS BY GUARANTOR; LENDER' FREEDOM TO ACT.
The Guarantor jointly and severally agrees that the Guaranteed Obligations
will be paid and performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any such terms or rights of the Lenders thereto. The
Guarantor waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Guaranteed Obligations incurred and all other notices
of any kind, all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any right
to require the marshalling of assets of the Borrower or any other Person
primarily or secondarily liable with respect to any of the Guaranteed
Obligations, and to the fullest extent permitted by applicable law, all
suretyship defenses generally. Without limiting the generality of the foregoing,
the Guarantor agrees to the provisions of the Credit Agreement and any other
Loan Document evidencing, securing or otherwise executed in connection with any
Guaranteed Obligation and agrees that the joint and several obligations of the
Guarantor hereunder shall not be released or discharged, in whole or in part, or
otherwise altered or impaired by (i) the failure of the Lender to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other Person primarily or secondarily liable with respect to any of the
Guaranteed Obligations; (ii) any extensions, compromise, refinancing,
consolidation or renewals of any Guaranteed Obligation; (iii) any change in the
time, place or manner of payment of any of the Guaranteed Obligations or any
rescissions, waivers, compromise, refinancing, consolidation, amendments or
modifications of any of the terms or provisions of the Credit Agreement or any
other Loan Document evidencing, securing or otherwise executed in connection
with any of the Guaranteed Obligations; (iv) the addition, substitution or
release of any Person primarily or secondarily liable for any Guaranteed
Obligation, (v) the adequacy of any rights which the Lender may have against any
collateral security or other means of obtaining repayment of any of the
Guaranteed
E-2
Form of Guaranty
Obligations; (vi) the impairment of any collateral securing any of the
Guaranteed Obligations, including without limitation the failure to perfect or
preserve any rights which the Lender might have in such collateral security or
the substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of the Guarantor or otherwise operate as a
release or discharge of the Guarantor, all of which may be done without notice
to the Guarantor. To the fullest extent permitted by law, the Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law which would otherwise prevent the Lender
from bringing any action, including any claim for a deficiency, or exercising
any other right or remedy (including any right of set-off), against the
Guarantor before or after the Lender's commencement or completion of any
foreclosure action, whether judicially, by exercise of power of sale or
otherwise, or (B) any other law which in any other way would otherwise require
any election of remedies by the Lender.
5. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS AGAINST BORROWER.
If for any reason the Borrower fails to have a legal existence or is under
no legal obligation to discharge any of the Guaranteed Obligations, or if any of
the Guaranteed Obligations have become irrecoverable from the Borrower by reason
of the Borrower's insolvency, bankruptcy or reorganization or by other operation
of law or for any other reason, this Guaranty shall nevertheless be binding on
the Guarantor to the same extent as if the Guarantor at all times had been the
principal obligor on all such Guaranteed Obligations. In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Borrower, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement or any other Loan Document evidencing, securing or
otherwise executed in connection with any Guaranteed Obligation shall be
immediately due and payable by the Guarantor.
6. SUBROGATION; SUBORDINATION.
6.1 WAIVER OF RIGHTS AGAINST BORROWER.
Until the final payment and performance in full of all of the
Guaranteed Obligations and any and all other Obligations of the Borrower
to the Lender under the Loan Documents, (i) the Guarantor shall not
exercise any rights against the Borrower arising as a result of payment by
the Guarantor hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and will not prove any claim in
competition with the Lender in respect of any payment hereunder in any
bankruptcy, insolvency or reorganization case or proceedings of any
nature; (ii) the Guarantor will not claim any setoff, recoupment or
counterclaim against the Borrower in respect of any liability of the
Guarantor to the Borrower; and (iii) the Guarantor waives any benefit of
and any right to participate in any collateral security which may be held
by the Lender.
6.2 SUBORDINATION.
E-3
Form of Guaranty
The payment of any amounts due with respect to any indebtedness of
the Borrower now or hereafter owed to the Guarantor is hereby subordinated
to the prior payment in full of all of the Guaranteed Obligations and any
and all other obligations of the Borrower to the Lender or any affiliate
of the Lender. The Lender agrees that prior to the occurrence of any
default in the payment or performance of any of the Guaranteed
Obligations, such indebtedness may be advanced and repaid in accordance
with the terms of such indebtedness, but without acceleration and without
any premium thereon. The Guarantor agrees that, after the occurrence of
any default in the payment or performance of any of the Guaranteed
Obligations, the Guarantor will not collect, demand, xxx for or otherwise
attempt to collect any such indebtedness of the Borrower to the Guarantor
until all of the Guaranteed Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor in
trust for the Lender and be paid over to the Lender on account of the
Guaranteed Obligations without affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
6.3 PROVISIONS SUPPLEMENTAL.
The provisions of this ss.6 shall be supplemental to and not in
derogation of any rights and remedies of the Lender or any affiliate of
the Lender under any separate subordination agreement which the Lender may
at any time and from time to time enter into with the Guarantor.
7. SETOFF.
If an Event of Default shall have occurred and be continuing, the Lender
and its Affiliates are hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by the Lender or any such Affiliate to or for the credit or the
account of Guarantor against any and all of the obligations of the Guarantor now
or hereafter existing under this Guaranty or any other Loan Document to the
Lender, irrespective of whether or not the Lender shall have made any demand
under this Guaranty or any other Loan Document and although such obligations of
the Guarantor may be contingent or unmatured or are owed to a branch or office
of the Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of the Lender and its Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that the Lender or its Affiliates may have. The Lender agrees
to notify the Guarantor promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
8. FURTHER ASSURANCES.
At the request of the Lender, the Guarantor will cooperate with the Lender
and deliver and execute such further instruments and documents as the Lender may
consider necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of
E-4
Form of Guaranty
the Lender hereunder. In furtherance, and not in limitation of the foregoing,
Guarantor agrees that it shall comply with any and all reporting and delivery
requirements set forth in the Loan Documents. Guarantor acknowledges and
confirms that it has established adequate means of obtaining from the Borrower
on a continuing basis all information desired by such Guarantor concerning the
financial condition of the Borrower, and that Guarantor will look to the
Borrower and not to the Lender in order for Guarantor to keep adequately
informed of changes in the Borrower's financial condition.
9. REINSTATEMENT; TERMINATION.
(a) This Guaranty shall remain in full force and effect notwithstanding
any attempt by the Guarantor to revoke this Guaranty. This Guaranty shall
continue to be effective or be reinstated, notwithstanding any such attempted
revocation, if, and to the extent that, at any time any payment made or value
received with respect to any Guaranteed Obligation is rescinded or must
otherwise be returned by Lender upon the insolvency, bankruptcy or
reorganization of the Borrower, or otherwise, all as though such payment had not
been made or value received.
(b) This Guaranty shall remain in full force and effect until payment in
full of all Guaranteed Obligations, the termination of all Commitments under the
Credit Agreement and the performance in full of all obligations of the Guarantor
under this Guaranty, subject to reinstatement as provided in Section 9(a).
Subject to Section 9(a), the Guarantor's payment obligations hereunder shall be
deemed satisfied upon the actual and timely receipt by the Lender of all amounts
payable hereunder.
10. SUCCESSORS AND ASSIGNS.
The provisions of this Guaranty shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns, except that Guarantor may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Lender.
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in Section 9.06 of
the Credit Agreement and, to the extent expressly contemplated by the Credit
Agreement, the Related Parties of the Lender) any legal or equitable right,
remedy or claim under or by reason of this Guaranty.
11. AMENDMENTS AND WAIVERS.
No amendment or waiver of any provision of this Guaranty shall be
effective unless in writing signed by the Lender and Guarantor, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
12. NOTICES.
All notices and other communications called for hereunder shall be made in
writing and, unless otherwise specifically provided herein, shall be made, given
and deemed effective in the manner set forth in ss.9.02 of the Credit Agreement.
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Form of Guaranty
13. GOVERNING LAW; CONSENT TO JURISDICTION.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST THE GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO
IN PARAGRAPH (B) OF THIS SECTION. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. GUARANTOR IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN ss.9.02 OF THE CREDIT AGREEMENT.
NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
14. WAIVER OF JURY TRIAL.
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR THE
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Form of Guaranty
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15. USA PATRIOT ACT NOTICE.
The Lender hereby notifies Guarantor that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Guarantor, which information includes the name and address of
each Guarantor and other information that will allow the Lender to identify the
Guarantor in accordance with the Act.
16. LIMITATION ON GUARANTEED OBLIGATIONS.
Notwithstanding any provision herein to the contrary, Guarantor's
liability hereunder shall be limited to an amount not to exceed as of any date
of determination the greater of:
(a) the net amount of all L/C Obligations and Committed Loans advanced
under the Credit Agreement and directly or indirectly re-loaned or otherwise
transferred to, or incurred for the benefit of, such Guarantor, plus interest
thereon at the rate specified in the Credit Agreement; or
(b) the amount which could be claimed by the Lender from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law after taking into account, among other things, such
Guarantor's right of contribution and indemnification from each other Guarantor
under Section 17.
17. CONTRIBUTION WITH RESPECT TO GUARANTEED OBLIGATIONS.
(a) To the extent that any payment made by a Guarantor or from its
property under this Guaranty or any Loan Document of all or any of the
Guaranteed Obligations (a "GUARANTOR PAYMENT"), taking into account all other
Guarantor Payments then previously or concurrently made by the other Guarantors
or from their properties, exceeds the amount which such Guarantor would
otherwise have paid if each Guarantor had paid the aggregate Guaranteed
Obligations satisfied by such Guarantor Payment in the same proportion that such
Guarantor's "Allocable Amount" (as defined below) (in effect immediately prior
to such Guarantor Payment) bore to the aggregate Allocable Amounts of all of
Guarantors in effect immediately prior to the making of such Guarantor Payment,
then, following indefeasible payment in full in cash of the Obligations and
termination of the Commitments, such Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each of
the other Guarantors for the
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Form of Guaranty
amount of such excess, ratably based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment. If and whenever any right of
reimbursement or contribution becomes enforceable by any Guarantor against any
other Guarantor under this Section 16, such Guarantor shall be entitled, subject
to and upon payment in full of the Obligations, to be subrogated (equally and
ratably with all other Guarantors entitled to reimbursement or contribution from
any other Guarantor as set forth in this Section 17) to any security interest
that may then be held by the Lender upon any Collateral granted to it under the
Security Documents. If subrogation is demanded by any Guarantor, then (after
payment in full of all the Obligations and termination of all Commitments) at
such Guarantor's sole cost and expense, Lender shall deliver to the Guarantors
making such demand, or to a representative of such Guarantors or the Guarantors
generally, an instrument reasonably satisfactory to the Lender transferring
whatever security interest the Lender then may hold in whatever Collateral may
then exist that was not previously released or disposed of by the Lender.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This ss.17 is intended only to define the relative rights of
Guarantors and nothing set forth in this ss.17 is intended to or shall impair
the obligations of Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of this
Guaranty.
(d) The rights of the parties under this ss.17 shall be exercisable upon
the full and indefeasible payment of the Guaranteed Obligations and the
termination of the Credit Agreement and the other Loan Documents.
(e) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of any Guarantor to which such
contribution and indemnification is owing.
18. MISCELLANEOUS.
This Guaranty constitutes the entire agreement of the Guarantor with
respect to the matters set forth herein. The rights and remedies herein provided
are cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of or
collateral security for any of the Guaranteed Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
19. COMMERCIAL TRANSACTIONS.
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Form of Guaranty
GUARANTOR REPRESENTS, WARRANTS AND ACKNOWLEDGES THAT THE TRANSACTIONS OF
WHICH THIS GUARANTY IS PART ARE COMMERCIAL TRANSACTIONS.
20. JOINDER PARTIES.
Guarantor hereby acknowledges and agrees that, from time to time after the
date of this Guaranty, certain Domestic Subsidiaries of Borrower may become a
party to this Guaranty (each, a "JOINDER PARTY") and be bound by all the terms,
provisions and conditions contained herein, pursuant to, and in furtherance of,
the Borrower's covenants and obligations set forth in Section 6.12 of the Credit
Agreement. Each such Joinder Party shall constitute a "Guarantor" for all
purposes hereunder with the same force and effect as if originally named as a
Guarantor hereunder.
21. OTHER GUARANTORS.
Each Guarantor acknowledges that other Guarantors and Joinder Parties have
or may also from time to time become primarily or secondarily liable with
respect to any of the Guaranteed Obligations, in which event the liability of
the Guarantors hereunder shall be joint and several. Each Guarantor further
acknowledges that the failure of any of the other Guarantors, if any, to execute
and deliver their respective guarantees hereunder shall not discharge the
liability of such Guarantor under this Guaranty.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
E-9
Form of Guaranty
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
OMR SYSTEMS CORPORATION
By: _____________________________
Name:
Title:
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Form of Guaranty
EXHIBIT F
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement
should be covered by the legal opinion:
- Section 5.01(a), (b) and (c)
- Section 5.02
- Section 5.03
- Section 5.04
- Section 5.06
- Section 5.14(b)
[Add other matters as appropriate to the transaction]
F-1
Opinion Matters
EXHIBIT G
[Form of]
JOINDER AGREEMENT
Reference is made to that certain Joint and Several Continuing Guaranty
Agreement dated as of April 13, 2005 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "GUARANTY"), by OMR
SYSTEMS CORPORATION, a New Jersey corporation and each Joinder Party from time
time becoming a party thereto (collectively, "GUARANTOR"), in favor of FLEET
NATIONAL BANK, a Bank of America Company ("LENDER") as Lender and L/C Issuer (as
such terms are defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, SS&C TECHNOLOGIES, INC., a Delaware corporation ("BORROWER") has
entered into a certain Credit Agreement dated as of April 13, 2005 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), pursuant to the terms and subject to the conditions of
which Lender shall from time to time extend Committed Loans in an amount at any
one time outstanding not to exceed $75,000,000; and
WHEREAS, capitalized terms used herein and not otherwise defined shall the
respective meanings ascribed to them in the Credit Agreement; and
WHEREAS, Guarantor has entered into the Guaranty in order to induce the
Lender to make the Committed Loans to the Borrower; and
WHEREAS, pursuant to Section 6.12 of the Credit Agreement, under certain
circumstances from and after the date of the Credit Agreement, certain Domestic
Subsidiaries shall be required to become a Guarantor under the Guaranty
Agreement by executing a Joinder Agreement.
The undersigned Subsidiary (the "JOINDER PARTY") is executing this joinder
agreement ("JOINDER AGREEMENT") to the Guaranty Agreement in order to induce the
Lender to make additional Committed Loans and as consideration for the Committed
Loans previously made.
NOW, THEREFORE, the Lender and the Joinder Party hereby agree as follows:
A. JOINDER. In accordance with Section 6.12 of the Credit Agreement, the
Joinder Party, by its signature below, becomes a Guarantor under the
Guaranty Agreement, with the same force and effect as if originally named
therein as a Guarantor.
B. REPRESENTATIONS AND WARRANTIES. The Joinder Party hereby (a) agrees to all
the terms and provisions of the Guaranty Agreement applicable to it as a
Guarantor thereunder, and (b) makes each of the representations and
warranties made by it as a Guarantor thereunder (except that any
representation and warranty that is made as of a specified
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Form of Joinder Agreement
date shall be reaffirmed as of such date) on and as of the date hereof.
Each reference to a Guarantor in the Guaranty Agreement shall be deemed to
include the Joinder Party. Each reference in the Credit Agreement to a
Guarantor shall be deemed to include the Joinder Party.
C. SEVERABILITY. Any provision of this Joinder Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
D. COUNTERPARTS. This Joinder Agreement may be executed in counterparts, each
of which shall constitute an original. Delivery of an executed signature
page to this Joinder Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Joinder
Agreement.
E. NO WAIVER. Except as expressly supplemented hereby, the Guaranty Agreement
shall remain in full force and effect.
F. NOTICES. All notices, requests and demands to or upon the Joinder Party,
the Lender and the L/C Issuer shall be governed by the terms of Section
9.02 of the Credit Agreement.
G. GOVERNING LAW. This agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by
the law of the State of New York, without regard to conflicts of laws
principles that would require the application of the laws of another
jurisdiction.
[H. SCHEDULES. Annexed hereto are supplements to the schedules to the Credit
Agreement, as applicable, with respect to the Joinder Party. Such
supplements shall be deemed to be part of the Credit Agreement.](8)
[Signature Pages Follow]
------------
(8) TO be included if applicable.
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Form of Joinder Agreement
IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
[JOINDER PARTY]
By: ___________________________
Name:
Title:
Address for Notices:
_________________________
_________________________
_________________________
Attn: ___________________
FLEET NATIONAL BANK,
a Bank of America Company
By: ____________________________
Name:
Title:
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Form of Joinder Agreement
