AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 8, 1998,
AMONG
APAC TELESERVICES, INC.
THE BANKS PARTY HERETO,
AND
HARRIS TRUST AND SAVINGS BANK,
as Agent
AND
BANK OF MONTREAL,
as Syndication Agent
TABLE OF CONTENTS
SECTION DESCRIPTION PAGE
SECTION 1. THE CREDIT FACILITIES...............................................................1
Section 1.1. Revolving Credit Commitments....................................................1
Section 1.2. Letters of Credit...............................................................2
Section 1.3. Term Loan Commitments...........................................................4
Section 1.4. Applicable Interest Rates on Revolving and Term Loans...........................4
Section 1.5. Minimum Borrowing Amounts on Revolving and Term Loans...........................6
Section 1.6. Manner of Borrowing Revolving and Term Loans and
Designating Applicable Interest Rates...........................................6
Section 1.7. Default Rate on Revolving and Term Loans........................................8
Section 1.8. Swing Loans.....................................................................9
Section 1.9. Interest Periods for All Loans.................................................11
Section 1.10. Maturity of All Loans..........................................................12
Section 1.11. Prepayments....................................................................12
Section 1.12. The Notes......................................................................14
Section 1.13. Funding Indemnity..............................................................15
Section 1.14. Commitment Terminations........................................................16
Section 1.15. Rate Determinations............................................................16
SECTION 2. FEES, SUBSTITUTION OF BANKS AND ADDITIONAL BANKS...................................17
Section 2.1. Fees...........................................................................17
Section 2.2. Substitution of Banks..........................................................17
Section 2.3. Defaulting Bank................................................................18
Section 2.4. Additional Banks...............................................................18
SECTION 3. PLACE AND APPLICATION OF PAYMENTS..................................................19
SECTION 4. GUARANTIES.........................................................................20
Section 4.1. Collateral.....................................................................20
Section 4.2. Guaranties.....................................................................20
Section 4.3. Further Assurances.............................................................21
SECTION 5. DEFINITIONS; INTERPRETATION........................................................21
Section 5.1. Definitions....................................................................21
Section 5.2. Interpretation.................................................................34
Section 5.3. Change in Accounting Principles................................................34
SECTION 6. REPRESENTATIONS AND WARRANTIES.....................................................35
Section 6.1. Organization and Qualification.................................................35
Section 6.2. Subsidiaries...................................................................35
Section 6.3. Authority and Validity of Obligations..........................................36
Section 6.4. Use of Proceeds; Margin Stock..................................................36
Section 6.5. Financial Reports..............................................................36
Section 6.6. No Material Adverse Change.....................................................37
Section 6.7. Full Disclosure................................................................37
Section 6.8. Trademarks, Franchises, and Licenses...........................................38
Section 6.9. Governmental Authority and Licensing...........................................38
Section 6.10. Good Title.....................................................................38
Section 6.11. Litigation and Other Controversies.............................................38
Section 6.12. Taxes..........................................................................38
Section 6.13. Approvals......................................................................39
Section 6.14. Affiliate Transactions.........................................................39
Section 6.15. Investment Company; Public Utility Holding Company.............................39
Section 6.16. ERISA..........................................................................39
Section 6.17. Compliance with Laws...........................................................39
Section 6.18. Other Agreements...............................................................40
Section 6.19. Solvency.......................................................................40
Section 6.20. ITI Marketing Acquisition......................................................40
Section 6.21. Year 2000 Compliance...........................................................40
Section 6.22. No Default.....................................................................41
SECTION 7. CONDITIONS PRECEDENT...............................................................41
Section 7.1. Initial Credit Event...........................................................41
Section 7.2. All Credit Events..............................................................43
Section 7.3. Existing Credit Agreement......................................................44
SECTION 8. COVENANTS..........................................................................45
Section 8.1. Maintenance of Business........................................................45
Section 8.2. Maintenance of Properties......................................................45
Section 8.3. Taxes and Assessments..........................................................45
Section 8.4. Insurance......................................................................45
Section 8.5. Financial Reports..............................................................46
Section 8.6. Inspection.....................................................................48
Section 8.7. Indebtedness for Borrowed Money................................................48
Section 8.8. Liens..........................................................................48
Section 8.9. Investments, Acquisitions, Loans, Advances and
Guaranties.....................................................................49
Section 8.10. Mergers, Consolidations and Sales..............................................51
Section 8.11. Maintenance of Subsidiaries....................................................52
Section 8.12. Dividends and Certain Other Restricted Payments................................53
Section 8.13. ERISA..........................................................................53
Section 8.14. Compliance with Laws...........................................................53
Section 8.15. Burdensome Contracts With Affiliates...........................................53
Section 8.16. No Changes in Fiscal Year......................................................53
Section 8.17. Formation of Subsidiaries......................................................54
Section 8.18. Change in the Nature of Business...............................................54
Section 8.19. Use of Loan Proceeds...........................................................54
Section 8.20. No Restrictions on Subsidiary Distributions....................................54
Section 8.21. Subordinated Debt..............................................................54
Section 8.22. Total Debt Ratio...............................................................54
Section 8.23. Net Worth......................................................................55
Section 8.24. Fixed Charge Coverage Ratio....................................................55
Section 8.25. Minimum Adjusted EBITDA........................................................55
Section 8.26. Operating Leases...............................................................55
Section 8.27. Interest Rate Protection.......................................................56
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.....................................................56
Section 9.1. Events of Default..............................................................56
Section 9.2. Non-Bankruptcy Defaults........................................................58
Section 9.3. Bankruptcy Defaults............................................................58
Section 9.4. Collateral for Undrawn Letters of Credit.......................................59
Section 9.5. Notice of Default..............................................................59
Section 9.6. Expenses.......................................................................59
SECTION 10. CHANGE IN CIRCUMSTANCES............................................................59
Section 10.1. Change of Law..................................................................59
Section 10.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR........................................................60
Section 10.3. Increased Cost and Reduced Return..............................................60
Section 10.4. Lending Offices................................................................62
Section 10.5. Discretion of Bank as to Manner of Funding.....................................62
Section 10.6. Bank's Duty to Mitigate........................................................62
SECTION 11. THE AGENT AND ISSUING BANK.........................................................63
Section 11.1. Appointment and Authorization of Agent.........................................63
Section 11.2. Agent and its Affiliates.......................................................63
Section 11.3. Action by Agent................................................................63
Section 11.4. Consultation with Experts......................................................64
Section 11.5. Liability of Agent; Credit Decision............................................64
Section 11.6. Indemnity......................................................................64
Section 11.7. Resignation of Agent and Successor Agent.......................................65
Section 11.8. Interest Rate Hedging Arrangements.............................................65
Section 11.9. Issuing Bank...................................................................65
Section 11.10. Agent's Relationship with Borrower.............................................65
SECTION 12. MISCELLANEOUS......................................................................66
Section 12.1. Withholding Taxes..............................................................66
Section 12.2. No Waiver, Cumulative Remedies.................................................67
Section 12.3. Non-Business Days..............................................................67
Section 12.4. Documentary Taxes..............................................................67
Section 12.5. Survival of Representations....................................................67
Section 12.6. Survival of Indemnities........................................................67
Section 12.7. Sharing of Set-Off.............................................................67
Section 12.8. Notices........................................................................68
Section 12.9. Counterparts...................................................................68
Section 12.10. Successors and Assigns.........................................................69
Section 12.11. Participants...................................................................69
Section 12.12. Assignment of Commitments by Banks.............................................69
Section 12.13. Amendments.....................................................................70
Section 12.14. Headings.......................................................................70
Section 12.15. Costs and Expenses.............................................................71
Section 12.16. Set-off........................................................................71
Section 12.17. Entire Agreement...............................................................72
Section 12.18. Governing Law..................................................................72
Section 12.19. Severability of Provisions.....................................................72
Section 12.20. Excess Interest................................................................72
Section 12.21. Confidentiality................................................................72
Section 12.22. Single Bank....................................................................73
Section 12.23. Syndication Agent..............................................................73
Section 12.24. Submission to Jurisdiction; Waiver of Jury Trial...............................73
Signature Page...........................................................................................74
EXHIBIT A - Notice of Payment Request EXHIBIT B - Notice of Borrowing EXHIBIT C
- - Notice of Continuation/Conversion EXHIBIT D - Revolving Note EXHIBIT E - Term
Note EXHIBIT F - Swingline Note EXHIBIT G - Compliance Certificate EXHIBIT H -
Assignment and Acceptance SCHEDULE 6.2 - Subsidiaries SCHEDULE 8.7 - Other
Indebtedness SCHEDULE 8.8 - Other Liens
SCHEDULE 8.9 - Present Investments in Subsidiaries
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement is entered into as of the 8th
day of September, 1998, by and between APAC TeleServices, Inc., an Illinois
corporation (the "Borrower"), Harris Trust and Savings Bank, an Illinois banking
association, individually as a Bank and as an agent (in such capacity as agent
being hereinafter referred to as the "Agent"), and the lending institutions
which are or hereafter become signatories hereto (collectively the "Banks" and
individually a "Bank").
RECITALS
A. The Borrower has requested that the Banks loan monies to the
Borrower.
B. The Borrower, certain of the Banks and the Agent are currently party
to that certain Credit Agreement dated as of May 20, 1998 (the "Previous Credit
Agreement"). The Borrower hereby requests that certain amendments be made to the
Previous Credit Agreement and, for the sake of clarity and convenience, that the
Previous Credit Agreement be restated as so amended. This Agreement shall become
effective, and shall amend and restate the Previous Credit Agreement, upon the
execution of this Agreement by each of the parties hereto and the satisfaction
(or waiver by the Required Banks) of the conditions precedent contained in
Section 7 hereof (the date of such effectiveness being hereinafter referred to
as the "Effective Date"); and from and after the Effective Date, all references
made to the Previous Credit Agreement in the Loan Documents or in any other
instrument or document shall, without more, be deemed to refer to this Amended
and Restated Credit Agreement.
C. The Banks, upon acceptance of this Agreement in writing, will
continue to lend monies and/or make advances, extensions of credit or other
financial accommodations to, on behalf of or for the benefit of the Borrower
pursuant hereto.
NOW, THEREFORE, in consideration of the recitals set forth above, which
by this reference are incorporated into the Agreement set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and subject to the terms and conditions hereof and on the
basis of the representations and warranties herein set forth, the Borrower, the
Agent and the Banks hereby agree to the following:
SECTION 1. THE CREDIT FACILITIES.
Section 1.1. Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to make
a loan or loans (individually a "Revolving Loan" and collectively the "Revolving
Loans") to the Borrower in U.S. Dollars from time to time on a revolving basis
up to the amount of such Bank's revolving credit commitment set forth on the
applicable signature page hereof or pursuant to Section 12.12 hereof (its
"Revolving Credit Commitment" and, cumulatively for all the Banks, the
"Revolving Credit Commitments"), subject to any reductions thereof pursuant to
the terms hereof, before the Revolving Credit Termination Date. The sum of the
aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations
at any time outstanding shall not exceed the Revolving Credit Commitments in
effect at such time. Each Borrowing of Revolving Loans shall be made ratably
from the Banks in proportion to their respective Revolver Percentages. As
provided in Section 1.6(a) hereof, the Borrower may elect that each Borrowing of
Revolving Loans be either Base Rate Loans or Eurodollar Loans. Revolving Loans
may be repaid and the principal amount thereof reborrowed before the Revolving
Credit Termination Date, subject to the terms and conditions hereof.
Section 1.2. Letters of Credit. (a) General Terms. Subject to the terms
and conditions hereof, as part of the Revolving Credit, the Issuing Bank shall
issue standby and commercial letters of credit (each a "Letter of Credit") for
the Borrower's account in U.S. Dollars in an aggregate undrawn face amount up to
the amount of the L/C Commitment, provided that the aggregate L/C Obligations at
any time outstanding shall not exceed (i) $10,000,000 and (ii) the difference
between the Revolving Credit Commitments in effect at such time and the
aggregate principal amount of Revolving Loans and Swing Loans then outstanding.
Each Letter of Credit shall be issued by the Issuing Bank, but each Bank shall
be obligated to reimburse the Issuing Bank for such Bank's Revolver Percentage
of the amount of each drawing thereunder and, accordingly, each Letter of Credit
shall constitute usage of the Revolving Credit Commitment of each Bank pro rata
in accordance with its Revolver Percentage.
(b) Applications. At any time before the Revolving Credit Termination
Date, the Issuing Bank shall, at the request of the Borrower, issue one or more
Letters of Credit, in a form satisfactory to the Issuing Bank, with expiration
dates no later than the earlier of 12 months from the date of issuance (or be
cancelable not later than 12 months from the date of issuance and each renewal)
or Revolving Credit Termination Date, in an aggregate face amount as set forth
above, upon the receipt of an application duly executed by the Borrower for the
relevant Letter of Credit in the form then customarily prescribed by the Issuing
Bank for the Letter of Credit requested (each an "Application"). Notwithstanding
anything contained in any Application to the contrary: (i) the Borrower shall
pay fees in connection with each Letter of Credit as set forth in Section 2.1
hereof, (ii) except as otherwise provided in Section 1.11 hereof, before the
occurrence of a Default or an Event of Default, the Issuing Bank will not call
for the funding by the Borrower of any amount under a Letter of Credit before
being presented with a drawing thereunder, and (iii) if the Issuing Bank is not
timely reimbursed for the amount of any drawing under a Letter of Credit on the
date such drawing is paid, the Borrower's obligation to reimburse the Issuing
Bank for the amount of such drawing shall bear interest (which the Borrower
hereby promises to pay) from and after the date such drawing is paid at a rate
per annum equal to the sum of 2% plus the Applicable Margin for Reimbursement
Obligations plus the Base Rate from time to time in effect. If the Issuing Bank
issues any Letter of Credit with an expiration date that is automatically
extended unless the Issuing Bank gives notice that the expiration date will not
so extend beyond its then scheduled expiration date, the Issuing Bank will give
such notice of non-renewal before the time necessary to prevent such automatic
extension if before such required notice date: (i) the expiration date of such
Letter of Credit if so extended would be after the Revolving Credit Termination
Date, (ii) the Revolving Credit Commitments have been terminated, or (iii) a
Default or an Event of Default exists and the Agent, at the direction of the
Required Banks, has given the Issuing Bank instructions not to so permit the
extension of the expiration date of such Letter of Credit. The Issuing Bank
agrees to issue amendments to the Letter(s) of Credit increasing the amount, or
extending the expiration date, thereof at the request of the Borrower subject to
the conditions of Section 7.2 hereof and the other terms of this Section 1.2.
(c) The Reimbursement Obligations. Subject to Section 1.2(b) hereof, the
obligation of the Borrower to reimburse the Issuing Bank for all drawings under
a Letter of Credit (a "Reimbursement Obligation") shall be governed by the
Application related to such Letter of Credit, except that reimbursement shall be
made by no later than 11:00 a.m. (Chicago time) on the date when each drawing is
paid in immediately available funds at the Issuing Bank's principal office in
Chicago, Illinois or such other office as the Issuing Bank may designate in
writing to the Borrower. If the Borrower does not make any such reimbursement
payment on the date due and the Participating Banks fund their participations
therein in the manner set forth in Section 1.2(d) below, then all payments
thereafter received by the Issuing Bank in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section 1.2(d)
below.
(d) The Participating Interests. Each Bank, by its acceptance hereof,
severally agrees to purchase from the Issuing Bank, and the Issuing Bank hereby
agrees to sell to each such Bank (a "Participating Bank"), an undivided
percentage participating interest (a "Participating Interest"), to the extent of
its Revolver Percentage, in each Letter of Credit issued by, and each
Reimbursement Obligation owed to, the Issuing Bank. Upon any failure by the
Borrower to pay any Reimbursement Obligation at the time required on the date
the related drawing is paid, as set forth in Section 1.2(c) above, or if the
Issuing Bank is required at any time to return to the Borrower or to a trustee,
receiver, liquidator, custodian, or other Person any portion of any payment of
any Reimbursement Obligation, each Participating Bank shall, not later than the
Business Day it receives a certificate in the form of Exhibit A hereto from the
Issuing Bank to such effect, if such certificate is received before 1:00 p.m.
(Chicago time), or not later than 1:00 p.m. (Chicago time) the following
Business Day, if such certificate is received after such time, pay to the
Issuing Bank an amount equal to such Participating Bank's Revolver Percentage of
such unpaid or recaptured Reimbursement Obligation together with interest on
such amount accrued from the date the related payment was made by the Issuing
Bank to the date of such payment by such Participating Bank at a rate per annum
equal to: (i) from the date the related payment was made by the Issuing Bank to
the date 2 Business Days after payment by such Participating Bank is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date 2
Business Days after the date such payment is due from such Participating Bank to
the date such payment is made by such Participating Bank, the Base Rate in
effect for each such day. Each such Participating Bank shall thereafter be
entitled to receive its Revolver Percentage of each payment received in respect
of the relevant Reimbursement Obligation and of interest paid thereon, with the
Issuing Bank retaining its Revolver Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the Issuing Bank
under this Section 1.2 shall be absolute, irrevocable, and unconditional under
any and all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which any Participating Bank may have or have
had against the Borrower, the Agent, the Issuing Bank, any other Bank, or any
other Person whatsoever. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by any
reduction or termination of any Commitment of any Bank, and each payment by a
Participating Bank under this Section 1.2 shall be made without any offset,
abatement, withholding or reduction whatsoever. The Issuing Bank shall be
entitled to offset amounts received for the account of a Bank under this
Agreement against unpaid amounts due from such Bank to the Issuing Bank
hereunder (whether as fundings of participations, indemnities, or otherwise),
but shall not be entitled to offset against amounts owed to the Issuing Bank by
any Bank arising outside of this Agreement.
(e) Indemnification. The Participating Banks shall, to the extent of
their respective Revolver Percentages, indemnify the Issuing Bank (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss, or liability
(except such as result from the Issuing Bank's gross negligence or willful
misconduct) that the Issuing Bank may suffer or incur in connection with any
Letter of Credit. The obligations of the Participating Banks under this Section
1.2(e) and all other parts of this Section 1.2 shall survive termination of this
Agreement and of all Applications, Letters of Credit, and all drafts and other
documents presented in connection with drawings thereunder.
Section 1.3. Term Loan Commitments. Subject to the terms and conditions
hereof, each Bank, by its acceptance hereof, severally agrees to make a loan
(individually a "Term Loan" and collectively the "Term Loans") to the Borrower
in the amount of such Bank's term loan commitment as set forth on the applicable
signature page hereof or pursuant to Section 12.12 hereof (its "Term Loan
Commitment" and, cumulatively for all the Banks, the "Term Loan Commitments").
The Term Loans shall be made, if at all, on or before September 8, 1998, at
which time the Term Loan Commitments shall expire. The Term Loans shall be
advanced in a single Borrowing and shall be made ratably by the Banks in
proportion to their respective Term Loan Percentages. As provided in Section
1.6(a) hereof, the Borrower may elect that the Term Loans be outstanding as Base
Rate Loans or Eurodollar Loans. No amount repaid or prepaid on any Term Loan may
be borrowed again.
Section 1.4. Applicable Interest Rates on Revolving and Term Loans. (a)
Base Rate Loans. Each Base Rate Loan made or maintained by a Bank shall bear
interest during each Interest Period it is outstanding (computed on the basis of
a year of 365 or 366 days, as the case may be, and the actual days elapsed,
except that determinations made under clause (ii) of the definition of Base Rate
set forth below shall be computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such Loan is
advanced, continued or created by conversion from a Eurodollar Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable Margin plus the Base Rate from time to time in effect,
payable on the last day of its Interest Period and at maturity (whether by
acceleration or otherwise).
"Base Rate" means for any day, the greater of (i) the rate of interest
announced by the Agent from time to time as its prime commercial rate, as in
effect on such day (it being acknowledged and agreed that rate may not be the
Agent's best or lowest rate); and (ii) the sum of (x) the rate determined by the
Agent to be the average (rounded upwards, if necessary, to the next higher 1/100
of 1%) of the rates per annum quoted to the Agent at approximately 10:00 a.m.
(Chicago time) (or as soon thereafter as is practicable) on such day (or, if
such day is not a Business Day, on the immediately preceding Business Day) by
two or more Federal funds brokers selected by the Agent for the sale to the
Agent at face value of Federal funds in an amount equal or comparable to the
principal amount owed to the Agent for which such rate is being determined, plus
(y) 1/2 of 1% (0.5%).
(b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a Bank
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued, or created by
conversion from a Base Rate Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin plus
the Adjusted LIBOR applicable for such Interest Period, payable on the last day
of the Interest Period and at maturity (whether by acceleration or otherwise),
and, if the applicable Interest Period is longer than three months, on each day
occurring every three months after the commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate
per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
1 - Eurodollar Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic
average of the rates of interest per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) at which deposits in U.S. Dollars in immediately
available funds are offered to the Agent at 11:00 a.m. (London, England time) 2
Business Days before the beginning of such Interest Period by major banks in the
interbank eurodollar market selected by the Agent for delivery on the first day
of and for a period equal to such Interest Period and in an amount equal or
comparable to the principal amount of the Eurodollar Loan scheduled to be made
by the Agent as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate Page 3750 as of 11:00 a.m.
(London, England time) on the day 2 Business Days before the commencement of
such Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Dow Jones Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
"Eurodollar Reserve Percentage" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum rate,
expressed as a decimal, at which reserves (including, without limitation, any
supplemental, marginal, and emergency reserves) are imposed during such Interest
Period by the Board of Governors of the Federal Reserve System (or any
successor) on "eurocurrency liabilities", as defined in such Board's Regulation
D (or in respect of any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Loans is determined or any
category of extensions of credit or other assets that include loans by
non-United States offices of any Bank to United States residents), subject to
any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this
definition, the Eurodollar Loans shall be deemed to be "eurocurrency
liabilities" as defined in Regulation D without benefit or credit for any
prorations, exemptions or offsets under Regulation D.
Section 1.5. Minimum Borrowing Amounts on Revolving and Term Loans. Each
Borrowing of Base Rate Loans advanced under the Revolving Credit or Term Loan
Commitments shall be in an amount not less than $5,000,000 or such greater
amount which is an integral multiple of $1,000,000. Each Borrowing of Eurodollar
Loans advanced, continued, or converted under the Revolving Credit or Term Loan
Commitments shall be in an amount equal to $10,000,000 or such greater amount
which is an integral multiple of $1,000,000.
Section 1.6. Manner of Borrowing Revolving and Term Loans and
Designating Applicable Interest Rates. (a) Notice to the Agent. The Borrower
shall give notice to the Agent by no later than 10:00 a.m. (Chicago time): (i)
at least 3 Business Days before the date on which the Borrower requests the
Banks to advance a Borrowing of Eurodollar Loans under the Revolving Credit or
Term Loan Commitments and (ii) on the date the Borrower requests the Banks to
advance a Borrowing of Base Rate Loans under the Revolving Credit or Term Loan
Commitments. The Loans included in each such Borrowing shall bear interest
initially at the type of rate specified in such notice of a new Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each such Borrowing or, subject to Section 1.5's
minimum amount requirement for each outstanding Borrowing, a portion thereof, as
follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of the
Interest Period applicable thereto, the Borrower may continue part or all of
such Borrowing as Eurodollar Loans or convert part or all of such Borrowing into
Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any Business
Day, the Borrower may convert all or part of such Borrowing into Eurodollar
Loans for an Interest Period or Interest Periods specified by the Borrower. The
Borrower shall give all such notices requesting the advance, continuation, or
conversion of a Borrowing under the Revolving Credit or Term Loan Commitments in
each case to the Agent by telephone or telecopy (which notice shall be
irrevocable once given and, if by telephone, shall be promptly confirmed in
writing) substantially in the form attached hereto as Exhibit B (Notice of
Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable, or
in such other form acceptable to the Agent under the Revolving Credit or Term
Loan Commitments. Notices of the continuation of such a Borrowing of Eurodollar
Loans for an additional Interest Period or of the conversion of part or all of
such a Borrowing of Eurodollar Loans into Base Rate Loans or of Base Rate Loans
into Eurodollar Loans must be given by no later than 10:00 a.m. (Chicago time)
at least 3 Business Days before the date of the requested continuation or
conversion. All such notices concerning the advance, continuation, or conversion
of a Borrowing under the Revolving Credit or Term Loan Commitments shall specify
the date of the requested advance, continuation, or conversion of a Borrowing
(which shall be a Business Day), the amount of the requested Borrowing to be
advanced, continued, or converted, the type of Loans to comprise such new,
continued, or converted Borrowing and, if such Borrowing is to be comprised of
Eurodollar Loans, the Interest Period applicable thereto. The Borrower agrees
that the Agent may rely on any such telephonic or telecopy notice given by any
person the Agent in good faith believes is an Authorized Representative without
the necessity of independent investigation, and in the event any such notice by
telephone conflicts with any written confirmation, such telephonic notice shall
govern if the Agent has acted in good faith in reliance thereon.
(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each Bank of any notice from the Borrower received pursuant
to Section 1.6(a) above and, if such notice requests the Banks to make
Eurodollar Loans under the Revolving Credit or Term Loan Commitments, the Agent
shall give notice to the Borrower and each Bank by like means of the interest
rate applicable thereto promptly after the Agent has made such determination.
(c) Borrower's Failure to Notify; Automatic Continuations and
Conversions. Any outstanding Borrowing of Base Rate Loans under the Revolving
Credit or Term Loan Commitments shall automatically be continued for an
additional Interest Period on the last day of its then current Interest Period
unless the Borrower has notified the Agent within the period required by Section
1.6(a) that the Borrower intends to convert such Borrowing, subject to Section
7.2 hereof, into a Borrowing of Eurodollar Loans under the Revolving Credit or
Term Loan Commitments or such Borrowing is prepaid in accordance with Section
1.11(a). If the Borrower fails to give notice pursuant to Section 1.6(a) above
of the continuation or conversion of any outstanding principal amount of a
Borrowing of Eurodollar Loans before the last day of its then current Interest
Period within the period required by Section 1.6(a) or, whether or not such
notice has been given, one or more of the conditions set forth in Section 7.2
for the continuation or conversion of a Borrowing of Eurodollar Loans would not
be satisfied and such Borrowing is not prepaid in accordance with Section
1.11(a), such Borrowing shall automatically be converted into a Borrowing of
Base Rate Loans. In the event the Borrower fails to give notice pursuant to
Section 1.6(a) above of a Borrowing equal to the amount of a Reimbursement
Obligation and has not notified the Agent by 1:00 p.m. (Chicago time) on the day
such Reimbursement Obligation becomes due that it intends to repay such
Reimbursement Obligation through funds not borrowed under this Agreement, the
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans on
such day in the amount of the Reimbursement Obligation then due, subject to
Section 7 hereof, which Borrowing shall be applied to pay the Reimbursement
Obligation then due.
(d) Disbursement of Loans. Not later than 1:00 p.m. (Chicago time) on
the date of any requested advance of a new Borrowing under the Revolving Credit
or Term Loan Commitments, subject to Section 7 hereof, each Bank shall make
available its Loan comprising part of such Borrowing in funds immediately
available at the principal office of the Agent in Chicago, Illinois. The Agent
shall make the proceeds of each new Borrowing available to the Borrower at the
Agent's principal office in Chicago, Illinois (or by wire transfer of funds
pursuant to the Borrower's written instructions to the Agent).
(e) Agent Reliance on Bank Funding. Unless the Agent shall have been
notified by a Bank prior to (or, in the case of a Borrowing of Base Rate Loans,
by 1:00 p.m. (Chicago time) on) the date on which such Bank is scheduled to make
payment to the Agent of the proceeds of a Loan (which notice shall be effective
upon receipt) that such Bank does not intend to make such payment, the Agent may
assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available to
the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank
has not in fact made such payment to the Agent, such Bank shall, on demand, pay
to the Agent the amount made available to the Borrower attributable to such Bank
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and ending
on (but excluding) the date such Bank pays such amount to the Agent at a rate
per annum equal to (i) from the date the related advance was made by the Agent
to the date 2 Business Days after payment by such Bank is due hereunder, the
Federal Funds Rate for each such day and (ii) from the date 2 Business Days
after the date such payment is due from such Bank to the date such payment is
made by such Bank, the Base Rate in effect for each such day. If such amount is
not received from such Bank by the Agent immediately upon demand, the Borrower
will, on demand, repay to the Agent the proceeds of the Loan attributable to
such Bank with interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan, but without such payment being considered a
payment or prepayment of a Loan under Section 1.13 hereof, so that the Borrower
will have no liability under such Section with respect to such payment.
Section 1.7. Default Rate on Revolving and Term Loans. Notwithstanding
anything to the contrary contained in Section 1.4 hereof, while any Event of
Default exists or after acceleration, the Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all Revolving Loans and Term Loans (computed on the basis of
a year of 360 days and actual days elapsed) at a rate per annum equal to:
(a) for any Base Rate Loan, the sum of 2% plus the Applicable
Margin plus the Base Rate from time to time in effect; and
(b) for any Eurodollar Loan, the sum of 2% plus the rate of
interest in effect thereon at the time of such default until the end of
the Interest Period applicable thereto and, thereafter at a rate per
annum equal to the sum of 2% plus the Applicable Margin for Base Rate
Loans plus the Base Rate from time to time in effect;
provided, however, that in the absence of acceleration, any adjustments pursuant
to this Section 1.7 shall be made at the election of the Required Banks with
written notice to the Borrower. While any Event of Default exists or after
acceleration, interest shall be paid on demand of the Agent at the request or
with the consent of the Required Banks.
Section 1.8. Swing Loans. (a) Generally. Subject to all of the terms and
conditions hereof, Agent agrees to make loans in U.S. Dollars to the Borrower
under the Swing Line ("Swing Loans") which shall not in the aggregate at any
time outstanding exceed the lesser of (i) $10,000,000 (as the same may be
reduced pursuant hereto, the "Swing Line Commitment") or (ii) the difference
between the Revolving Credit Commitments in effect at such time and the
aggregate amount of all Revolving Loans and L/C Obligations outstanding at the
time of computation. The Swing Line Commitment shall be available to the
Borrower and may be availed of by the Borrower from time to time and borrowings
thereunder may be repaid and used again during the period ending on the
Revolving Credit Termination Date; provided that each Swing Loan must be repaid
on the last day of the Interest Period applicable thereto. Each Swing Loan shall
be in a minimum amount of $250,000. Without regard to the face principal amount
of the Swing Line Note, the actual principal amount at any time outstanding and
owing by the Borrower on account of the Swing Line Note during the period ending
on the Revolving Credit Termination Date shall be the sum of all Swing Loans
then or theretofore made thereon less all payments actually received thereon
during such period. The Agent shall record on its books and records or on a
schedule to the Swing Line Note the amount of each Swing Loan made by it, all
payments of principal and interest and the principal balance from time to time
outstanding thereon, and, for any Swing Loan bearing interest at Agents' Quoted
Rate, the Interest Period and the interest rate applicable thereto. The record
thereof, whether shown on such books and records of the Agent or on a schedule
to the Swing Line Note, shall be prima facie evidence as to all such matters;
provided, however, that the Agent's failure to record any of the foregoing or
any error in any such record shall not limit or otherwise affect the obligation
of the Borrower to repay all Swing Loans made to it hereunder together with
accrued interest thereon.
(b) Interest on Swing Loans. Each Swing Loan shall bear interest until
maturity (whether by acceleration or otherwise) at a rate per annum equal to (i)
the sum of the Federal Funds Rate plus the Applicable Margin for Eurodollar
Loans as from time to time in effect or (ii) the Agent's Quoted Rate. Interest
on each Swing Loan shall be due and payable prior to such maturity on the last
day of each Interest Period applicable thereto. Notwithstanding anything to the
contrary contained in this Section 1.8(b) hereof, while any Event of Default
exists or after acceleration, the Borrower shall pay interest (after as well as
before entry of judgment thereon to the extent permitted by law) on the
principal amount of all Swing Loans (computed on the basis of a year of 365 or
366 days, as the case may be and the actual days elapsed) at a rate per annum
equal to (a) for any Swing Loan bearing interest with reference to the Federal
Funds Rate, the sum of 2% plus the Applicable Margin for Eurodollar Loans plus
the Base Rate from time to time in effect; and (b) for any Swing Loan bearing
interest with reference to the Agent's Quoted Rate, the sum of 2% plus the rate
of interest in effect thereon at the time of such default until the end of the
Interest Period applicable thereto and, thereafter, at a rate per annum equal to
the sum of 2% plus the Applicable Margin for Eurodollar Loans plus the Base Rate
from time to time in effect; provided, however, that in the absence of
acceleration, any adjustments pursuant to this Section 1.8(b) shall be made at
the election of the Required Banks with written notice to the Borrower. While
any Event of Default exists or after acceleration, interest shall be paid on
demand of the Agent at the request or with the consent of the Required Banks.
(c) Requests for Swing Loans. The Borrower shall give the Agent prior
notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on
the date upon which the Borrower requests that any Swing Loan be made, of the
amount and date of such Swing Loan and the Interest Period selected therefor.
Within thirty (30) minutes after receiving such notice, Agent shall in its
discretion quote an interest rate to the Borrower at which the Agent would be
willing to make such Swing Loan available to the Borrower for a given Interest
Period (the rate so quoted for a given Interest Period being herein referred to
as "Agent's Quoted Rate"). The Borrower acknowledges and agrees that the
interest rate quote is given for immediate and irrevocable acceptance, and if
the Borrower does not so immediately accept Agent's Quoted Rate for the full
amount requested by the Borrower for such Swing Loan, the Agent's Quoted Rate
shall be deemed immediately withdrawn and such Swing Loan shall bear interest at
the rate per annum determined by adding the Applicable Margin for Eurodollar
Loans to the Federal Funds Rate as from time to time in effect. Subject to all
of the terms and conditions hereof, the proceeds of such Swing Loan shall be
made available to the Borrower on the date so requested at the offices of the
Agent in Chicago, Illinois (or by wire transfer of funds pursuant to the
Borrower's written instructions to the Agent). Anything contained in the
foregoing to the contrary notwithstanding (i) the obligation of Agent to make
Swing Loans shall be subject to all of the terms and conditions of this
Agreement and (ii) the Agent shall not be obligated to make more than one Swing
Loan during any one day.
(d) Refunding Loans. In its sole and absolute discretion, the Agent may
at any time, on behalf of the Borrower (which hereby irrevocably authorizes the
Agent to act on its behalf for such purpose) and with notice to the Borrower,
request each Bank to make a Revolving Loan in the form of a Base Rate Loan in an
amount equal to such Bank's Revolver Percentage of the amount of the Swing Loans
outstanding on the date such notice is given. Unless any of the conditions of
Section 7.2 are not fulfilled on such date, each Bank shall make the proceeds of
its requested Revolving Loan available to Agent, in immediately available funds,
at Agents' principal office in Chicago, Illinois, before 12:00 Noon (Chicago
time) on the Business Day following the day such notice is given. The proceeds
of such Revolving Loans shall be immediately applied to repay the outstanding
Swing Loans.
(e) Participations. If any Bank refuses or otherwise fails to make a
Revolving Loan when requested by the Agent pursuant to Section 1.8(d) above
(because the conditions in Section 7.2 are not satisfied or otherwise), such
Bank will, by the time and in the manner such Revolving Loan was to have been
funded to the Agent, purchase from the Agent an undivided participating interest
in the outstanding Swing Loans in an amount equal to its Revolver Percentage of
the aggregate principal amount of Swing Loans that were to have been repaid with
such Revolving Loans, provided no purchase of a participation in a Swing Loan
bearing interest at Agent's Quoted Rate need be made until after expiration of
the Interest Period applicable thereto. Each Bank that so purchases a
participation in a Swing Loan shall thereafter be entitled to receive its
Revolver Percentage of each payment of principal received on the Swing Loan and
of interest received thereon accruing from the date such Bank funded to Agent
its participation in such Loan. The several obligations of the Banks under this
Section 1.8(d) shall be absolute, irrevocable and unconditional under any and
all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which any Bank may have or have had against
the Borrower, any other Bank or any other Person whatever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of the
Commitments of any Bank, and each payment made by an Bank under this Section
1.8(d) shall be made without any offset, abatement, withholding or reduction
whatsoever.
Section 1.9. Interest Periods for All Loans. As provided in Section
1.6(a) or 1.7(c) hereof, at the time of each request to advance, continue, or
create by conversion a Borrowing of Eurodollar Loans or of a Swing Loan, the
Borrower shall select an Interest Period applicable to such Loans from among the
available options. The term "Interest Period" means the period commencing on the
date a Borrowing of Loans is advanced, continued, or created by conversion and
ending: (a) in the case of Base Rate Loans, on the last day of the calendar
month in which such Borrowing is advanced, continued, or created by conversion
(or on the last day of the following calendar month if such Loan is advanced,
continued or created by conversion on the last day of a calendar month), (b) in
the case of a Eurodollar Loan, 1, 2, 3 or 6 months thereafter, and (c) in the
case of Swing Loans, on the date one (1) to seven (7) days thereafter as
mutually agreed by the Agent and the Borrower; provided, however, that:
(a) any Interest Period for a Borrowing of Revolving Loans
consisting of Base Rate Loans that otherwise would end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date, and any Interest Period for a Borrowing of Term Loans
consisting of Base Rate Loans that otherwise would end after the final
maturity date of the Term Loans shall end on the final maturity date of
the Term Loans;
(b) no Interest Period with respect to any portion of the Term
Loans shall extend beyond the final maturity date of the Term Loans, and
no Interest Period with respect to any portion of the Revolving Loans or
Swing Loans shall extend beyond the Revolving Credit Termination Date;
(c) no Interest Period with respect to any portion of the Term
Loans consisting of Eurodollar Loans shall extend beyond a date on which
the Borrower is required to make a scheduled payment of principal on the
Term Loans, unless the sum of (a) the aggregate principal amount of Term
Loans that are Base Rate Loans plus (b) the aggregate principal amount
of Term Loans that are Eurodollar Loans with Interest Periods expiring
on or before such date equals or exceeds the principal amount to be paid
on the Term Loans on such payment date;
(d) prior to July 31, 1998, unless the Agent in its discretion
agrees otherwise, no Interest Period over one month in length shall be
selected for any Eurodollar Loan;
(e) whenever the last day of any Interest Period would otherwise
be a day that is not a Business Day, the last day of such Interest
Period shall be extended to the next succeeding Business Day, provided
that, if such extension would cause the last day of an Interest Period
for a Borrowing of Eurodollar Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately
preceding Business Day; and
(f) for purposes of determining an Interest Period for a
Borrowing of Eurodollar Loans, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding day
in the next calendar month; provided, however, that if there is no
numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such Interest
Period is to end.
Section 1.10. Maturity of All Loans. (a) Revolving Loans and Swing
Loans. Each Revolving Loan shall mature and become due and payable by the
Borrower on the Revolving Credit Termination Date. Each Swing Loan shall
mature and become due and payable by the Borrower on the last day of the
Interest Period applicable thereto.
(b) Scheduled Payments of Term Loans. The Borrower shall make principal
payments on the Term Loans in installments on the first day of each March, June,
September and December in each year, commencing with the calendar quarter ending
September 1, 1998 and ending on June 1, 2003, with the amount of each such
installment to aggregate as follows: $3,000,000 on September 1, 1998 and a like
sum on the first day of each calendar quarter thereafter to and including June
1, 1999; $4,000,000 on September 1, 1999 and a like sum on the first day of each
calendar quarter thereafter to and including June 1, 2001; $6,000,000 on
September 1, 2001 and a like sum on the first day of each calendar quarter
thereafter to and including June 1, 2002; $7,000,000 on September 1, 2002 and a
like sum on the first day of each calendar quarter thereafter to and including
March 1, 2003, but with the last installment on all Term Loans to aggregate all
principal of the Term Loans not sooner paid due on June 1, 2003 and with the
amount of each installment due on the Term Loans held by each Bank to be equal
to its Term Loan Percentage of each such aggregate amount.
Section 1.11. Prepayments. (a) Optional. The Borrower shall have the
privilege of prepaying in whole or in part (but, if in part, then: (i) if such
Borrowing is of Base Rate Loans, in an amount not less than $1,000,000, (ii) if
such Borrowing is of Eurodollar Loans, in an amount not less than $1,000,000,
and (iii) in each case, in an amount such that the minimum amount required for a
Borrowing pursuant to Section 1.5 hereof remains outstanding) any Borrowing of
Eurodollar Loans at any time upon 3 Business Days prior notice to the Agent or,
in the case of a Borrowing of Base Rate Loans, notice delivered to the Agent by
the Borrower no later than 10:00 a.m. (Chicago time) on the date of prepayment,
such prepayment to be made by the payment of the principal amount to be prepaid
and accrued interest thereon to the date fixed for prepayment plus any amounts
due the Banks under Section 1.13 hereof. Swing Loans bearing interest at Agent's
Quoted Rate may only be voluntarily paid on the last day of the Interest Period
then applicable to such Loans. The Agent will promptly advise each Bank of any
such prepayment notice it receives from the Borrower. Any amount of Revolving
Loans paid or prepaid before the Revolving Credit Termination Date may, subject
to the terms and conditions of this Agreement, be borrowed, repaid and borrowed
again. No amount of the Term Loans paid or prepaid may be reborrowed. Each such
prepayment of the Term Loans shall be applied to the remaining installments of
the Term Notes in the inverse order of maturity.
(b) Mandatory. (i) The Borrower shall, on each date the Revolving Credit
Commitments are reduced pursuant to Section 1.14 hereof, prepay the Revolving
Loans and, if necessary, prefund the L/C Obligations by the amount, if any,
necessary to reduce the sum of the aggregate principal amount of Revolving Loans
and Swing Loans and of L/C Obligations then outstanding to the amount to which
the Revolving Credit Commitments have been so reduced.
(ii) If the Borrower or any Subsidiary shall at any time or from time to
time make or agree to make a Disposition or shall suffer an Event of Loss
resulting in Net Cash Proceeds in excess of $25,000,000 on a cumulative basis in
any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the
Agent of such proposed Disposition or Event of Loss (including the amount of the
estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in
respect thereof) and (y) promptly upon, and in no event later than the Business
Day after, receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of
such Disposition or Event of Loss, the Borrower shall prepay the Term Loans in
an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each
such prepayment shall be applied to the remaining installments of the Term Notes
in the inverse order of maturity. The Borrower acknowledges that its performance
hereunder shall not limit the rights and remedies of the Banks for any breach of
Section 8.10 hereof.
(iii) If after the date of this Agreement the Borrower or any Subsidiary
shall issue new equity securities (whether common or preferred stock or
otherwise), other than common stock issued in connection with the exercise of
employee stock options and equity securities issued as consideration for any
Acquisition permitted by Section 8.9(m) hereof, or dispose of any treasury
stock, the Borrower shall promptly notify the Agent of the estimated Net Cash
Proceeds of such issuance or disposition, as the case may be, to be received by
or for the account of the Borrower or such Subsidiary in respect thereof.
Promptly upon, and in no event later than the Business Day after, receipt by the
Borrower or such Subsidiary of Net Cash Proceeds of such issuance or
disposition, the Borrower shall prepay the Term Loans in an aggregate amount
equal to 50% of the amount of such Net Cash Proceeds. Each such prepayment shall
be applied to the remaining installments of the Term Notes in the inverse order
of maturity.
(iv) If after the date of this Agreement the Borrower or any Subsidiary
shall issue new debt securities by public offering or private placement or in
evidence of loans extended by banks or other institutional investors, the
Borrower shall promptly notify the Agent of the estimated Net Cash Proceeds of
such issuance to be received by or for the account of the Borrower or such
Subsidiary in respect thereof. Promptly upon, and in no event later than the
Business Day after, receipt by the Borrower or such Subsidiary of Net Cash
Proceeds of such issuance, the Borrower shall prepay the Term Loans in an
aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each
such prepayment shall be applied to the remaining installments of the Term Notes
in the inverse order of maturity. The Borrower acknowledges that its performance
hereunder shall not limit the rights and remedies of the Banks arising from any
breach of Section 8.7 hereof.
(v) Unless the Borrower otherwise directs, prepayments of Loans under
this Section 1.11(b) shall be applied first to Borrowings of Base Rate Loans
until payment in full thereof with any balance applied to Borrowings of
Eurodollar Loans in the order in which their Interest Periods expire. Each
prepayment of Loans under this Section 1.11(b) shall be made by the payment of
the principal amount to be prepaid and accrued interest thereon to the date of
prepayment together with any amounts due the Banks under Section 1.13 hereof.
Each prefunding of L/C Obligations shall be made in accordance with Section 9.4
hereof.
Section 1.12. The Notes. (a) The Revolving Loans made to the Borrower by a
Bank shall be evidenced by a single promissory note of the Borrower issued to
such Bank in the form of Exhibit D hereto. Each such promissory note is
hereinafter referred to as a "Revolving Note" and collectively such promissory
notes are referred to as the "Revolving Notes."
(b) The Term Loans made to the Borrower by a Bank shall be evidenced by
a single promissory note of the Borrower issued to such Bank in the form of
Exhibit E hereto. Each such promissory note is hereinafter referred to as a
"Term Note" and collectively such promissory notes are referred to as the "Term
Notes."
(c) The Swing Loans made to the Borrower by the Agent shall be evidenced
by a single promissory note of the Borrower issued to the Agent in the form of
Exhibit F hereto. This promissory note is hereinafter referred to as the "Swing
Line Note."
(d) Each Bank shall record on its books and records or on a schedule to
its appropriate Note the amount of each Loan advanced, continued or converted by
it, all payments of principal and interest and the principal balance from time
to time outstanding thereon, the type of such Loan, and, for any Eurodollar
Loan, the Interest Period and the interest rate applicable thereto. The record
thereof, whether shown on such books and records of a Bank or on a schedule to
the relevant Note, shall be prima facie evidence as to all such matters;
provided, however, that the failure of any Bank to record any of the foregoing
or any error in any such record shall not limit or otherwise affect the
obligation of the Borrower to repay all Loans made to it hereunder together with
accrued interest thereon. At the request of any Bank and upon such Bank
tendering to the Borrower the appropriate Note to be replaced, the Borrower
shall furnish a new Note to such Bank to replace any outstanding Note, and at
such time the first notation appearing on a schedule on the reverse side of, or
attached to, such Note shall set forth the aggregate unpaid principal amount of
all Loans, if any, then outstanding thereon.
(e) As soon as practicable, but in no event later than one (1) Business
Day after prior written notice from the Borrower to a Bank, such Bank shall
provide to the Borrower a written payoff letter from such Bank setting forth the
amount required to pay the Notes in full as of the date or dates requested by
the Borrower and any other amounts due by the Borrower hereunder (with a per
diem amount owing thereafter).
Section 1.13. Funding Indemnity. If any Bank (including for such
purposes, the Agent in the case of a Swing Loan which is a Fixed Rate Loan)
shall incur any loss, cost or expense (including, without limitation, any loss
of profit, and any loss, cost or expense incurred by reason of the liquidation
or re-employment of deposits or other funds acquired by such Bank to fund or
maintain any Fixed Rate Loan or the relending or reinvesting of such deposits or
amounts paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a Fixed Rate Loan on
a date other than the last day of its Interest Period for any reason,
whether before or after default, and whether or not such payment is
required by any provisions of this Agreement (other than any such
prepayment as a result of Section 10.1 hereof),
(b) any failure (because of a failure to meet the conditions of
Section 7 or otherwise) by the Borrower to borrow a Fixed Rate Loan on
the date specified in a notice given pursuant to Section 1.6(a) or
1.15(c), as the case may be, or
(c) any failure (because of a failure to meet the conditions of
Section 7 or otherwise) by the Borrower to continue a Eurodollar Loan,
or to convert a Base Rate Loan into a Eurodollar Loan, in each case on
the date specified in a notice given pursuant to Section 1.6(a),
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate setting forth the amount of such loss, cost or
expense in reasonable detail (including an explanation of the basis for and the
computation of such loss, cost or expense) and the amounts shown on such
certificate shall be deemed prima facie correct if reasonably determined;
provided, however, that the Borrower shall not be obligated to pay any such
amount or amounts to the extent such loss, cost or expense was incurred by such
Bank (x) more than ninety (90) days prior to the date of the delivery of such
certificate (nothing herein to impair or otherwise affect the Borrower's
liability hereunder for any subsequent loss, cost or expense incurred by such
Bank) or (y) to the extent such loss, cost or expense was caused by such Bank's
gross negligence or willful misconduct.
Section 1.14. Commitment Terminations. (a) Optional Revolving Credit
Terminations. The Borrower shall have the right at any time and from time to
time, upon 3 Business Days prior written notice to the Agent, to terminate the
Revolving Credit Commitments without premium or penalty and in whole or in part,
any partial termination to be (i) in an amount not less than $10,000,000 and
which is an integral multiple of $5,000,000 and (ii) allocated ratably among the
Banks in proportion to their respective Revolver Percentages, provided that (x)
the Revolving Credit Commitments may not be reduced to an amount less than the
sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C
Obligations then outstanding and (y) any reduction of the Revolving Credit
Commitments to an amount less than the Swing Line Commitment or L/C Commitment
shall automatically reduce the Swing Line Commitment or L/C Commitment, as the
case may be, to such amount as well. The Agent shall give prompt notice to each
Bank of any such termination of the Revolving Credit Commitments.
(b) Mandatory Termination Upon a Change of Control. After the occurrence
of a Change of Control, the Required Banks may, by written notice to the
Borrower at any time on or before the date occurring 180 days after the date the
Borrower notifies the Banks of such Change of Control, terminate the remaining
Commitments and all other obligations of the Banks hereunder on the date stated
in such notice (which shall in no event be sooner than (i) three (3) days after
such notice is given or (ii) the day on which the Borrower repays any other
Indebtedness for Borrowed Money). On the date the Commitments are so terminated,
all outstanding Obligations (including, without limitation, all principal of and
accrued interest on the Notes) shall forthwith be due and payable without
further demand, presentment, protest, or notice of any kind and the Borrower
shall immediately pay to the Banks the full amount then available for drawing
under each Letter of Credit, such amount to be held in the Account referred to
in Section 9.4 hereof (the Borrower agreeing to immediately make such payment on
the date the Commitments are so terminated and acknowledging and agreeing that
the Banks would not have an adequate remedy at law for the failure by the
Borrower to honor any such demand and that the Banks, and the Agent on their
behalf, shall have the right to require the Borrower to specifically perform
such undertaking whether or not any drawings or other demands for payment have
been made under any of the Letters of Credit).
(c) Any termination of the Commitments pursuant to this Section 1.14 may
not be reinstated.
Section 1.15. Rate Determinations. The Agent shall determine each
interest rate applicable to the Loans and the Reimbursement Obligations
hereunder in accordance with the provisions hereof, and its determination
thereof shall be conclusive and binding except in the case of manifest error.
SECTION 2. FEES, SUBSTITUTION OF BANKS AND ADDITIONAL BANKS.
Section 2.1. Fees. (a) Revolving Credit Commitment Fee. The Borrower
shall pay to the Agent for the ratable account of the Banks in accordance with
their Revolver Percentages a commitment fee at the rate per annum equal to the
Applicable Margin (computed on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed) on the average daily Unused
Revolving Credit Commitments. Such commitment fee shall be payable quarterly in
arrears on the last day of each calendar quarter in each year (commencing
September 30, 1998) and on the Revolving Credit Termination Date, unless the
Revolving Credit Commitments are terminated in whole on an earlier date, in
which event the commitment fee for the period to the date of such termination in
whole shall be paid on the date of such termination.
(b) Letter of Credit Fees. Quarterly in advance, on the first day of
each calendar quarter, the Borrower shall pay to the Issuing Bank for its own
account a facing fee equal to .25% per annum (computed on the basis of a year of
360 days and the actual number of days elapsed) applied to the daily average
face amount of standby Letters of Credit which are scheduled to be outstanding
during the calendar quarter commencing on such date. Quarterly in arrears, on
the last day of each calendar quarter in each year (commencing September 30,
1998) and on the Revolving Credit Termination Date, unless the Revolving Credit
Commitments are terminated in whole on an earlier date, in which event the fee
for the period to the date of such termination in whole shall be paid on the
date of such termination, the Borrower shall pay to the Agent, for the ratable
benefit of the Banks in accordance with their Revolver Percentages, a letter of
credit fee at a rate per annum equal to the Applicable Margin (computed on the
basis of a year of 360 days and the actual number of days elapsed) in effect
during each day of such quarter applied to the daily average face amount of
Letters of Credit which are outstanding during such quarter. In addition, the
Borrower shall pay to the Issuing Bank for its own account the Issuing Bank's
standard drawing, negotiation, amendment, and other administrative fees for each
Letter of Credit (whether a commercial Letter of Credit or a standby Letter of
Credit). Such standard fees referred to in the preceding sentence may be
established by the Agent from time to time.
(c) Agent Fees. The Borrower shall pay to the Agent, for its own use and
benefit, the fees set forth in that certain fee letter dated April 30, 1998, by
and among the Borrower and Harris Trust and Savings Bank, or as otherwise agreed
to by the Agent and the Borrower.
Section 2.2. Substitution of Banks. Upon the receipt by the Borrower of
(a) a claim from any Bank for compensation under Section 10.3 or 12.1 hereof or
(b) notice by any Bank to the Borrower of any illegality pursuant to Section
10.1 hereof, or in the event any Bank is a Defaulting Bank (any such Bank
referred to in clause (a) or (b) above, or any such Defaulting Bank, being
hereinafter referred to as an "Affected Bank"), the Borrower may, in addition to
any other rights the Borrower may have hereunder or under applicable law,
require, at the Affected Bank's expense, any such Affected Bank to assign, at
par plus accrued interest and fees, without recourse, all of its interest,
rights and obligations hereunder (including all of its Commitments and the
Revolving Loans and participation interests in Letters of Credit and other
amounts at any time owing to it hereunder and the other Loan Documents) to a
bank or other institutional lender specified by the Borrower, provided that (i)
such assignment shall not conflict with or violate any law, rule, or regulation
or order of any court or other governmental authority, (ii) the Borrower shall
have received the written consent of the Agent, which consent shall not be
unreasonably withheld, to such assignment, (iii) the Borrower shall have paid to
the Affected Bank all monies (together with amounts due such Affected Bank under
Section 1.13 hereof as if the Revolving Loans owing to it were prepaid rather
than assigned) other than such principal and accrued interest and fees, and (iv)
the assignment is entered into in accordance with the other requirements of
Section 12.12 hereof.
Section 2.3. Defaulting Bank. (a) Commitment. Notwithstanding anything
herein to the contrary, any commitment fee accrued with respect to the Revolving
Credit Commitment of a Defaulting Bank during the period prior to the time such
Bank became a Defaulting Bank and unpaid at such time shall not be payable by
the Borrower so long as such Bank shall be a Defaulting Bank except to the
extent that such commitment fee shall otherwise have been due and payable by the
Borrower prior to such time; provided, however, that no commitment fee shall
accrue on the Revolving Credit Commitment of a Defaulting Bank so long as such
Bank shall be a Defaulting Bank.
(b) Borrower's Remedies. The rights and remedies against a Defaulting
Bank under this Agreement, including without limitation this Section 2.3 and
Section 2.2 hereof, are in addition to other rights and remedies that the
Borrower may have against such Defaulting Bank with respect to any Loan or
unpaid Reimbursement Obligation which such Defaulting Bank has not funded, and
that the Agent or any Bank may have against such Defaulting Bank with respect to
any such Loan or Reimbursement Obligation.
Section 2.4. Additional Banks. Subject to the consent of the Required
Banks, the Borrower may request that the aggregate Revolving Credit Commitments
be increased by up to $25,000,000 by offering such increase to one or more Banks
already party hereto or other commercial banks not already party hereto (each
such Bank or bank being hereinafter referred to as an "Additional Bank")
reasonably acceptable to the Agent. Each such increase in the Revolving Credit
Commitments shall be subject to satisfaction of the following conditions in each
case as of the date such increase is to be effective: (i) no Default or Event of
Default shall occur or be continuing, (ii) such increase shall be at least
$5,000,000, (iii) the Borrower shall have paid to each Bank any amount that will
be due such Bank under Section 1.13 hereof as a result of any prepayment
(pursuant to the last sentence of this Section) of any Fixed Rate Loans
outstanding under this Agreement at the time of the effectiveness of such
increase, (iv) the Agent shall have received an acknowledgment agreement
providing for such increase in form and substance satisfactory to it executed by
the Borrower, the Agent and each Additional Bank, (v) the Agent shall have
received Revolving Notes executed by the Borrower in favor of each such
Additional Bank in the amount of its Revolving Credit Commitment after giving
effect to such increase (such Additional Bank to promptly return to the Borrower
any Revolving Note previously issued to it hereunder), (vi) EBITDA for the then
four most recently completed fiscal quarters of the Borrower are greater than
$100,000,000, and (vii) after giving effect to such increase, the aggregate
cumulative amount of increases in the Revolving Credit Commitments by virtue of
this Section shall not exceed $25,000,000. Upon the satisfaction of such
conditions, effective as of the date set forth in such acknowledgment agreement,
(i) each such Additional Bank shall thereafter be a "Bank" party to this
Agreement and shall be entitled to all rights, benefits and privileges afforded
a Bank hereunder and subject to the obligations of a Bank hereunder to the
extent of its Revolving Credit Commitment and (ii) the aggregate Revolving
Credit Commitments of all the Banks (including the Additional Banks) shall be
increased by the amount of the Revolving Credit Commitments of the Additional
Banks (without any increase in the Revolving Credit Commitment of any Bank other
than an Additional Bank). Concurrently with the effectiveness of such increase,
each Additional Bank shall fund its pro rata share of outstanding Revolving
Loans and overdue Reimbursement Obligations to the Agent in accordance with
Section 1.6 hereof (which amount shall thereafter be distributed to the other
Banks which originally made such Revolving Loans or funded such Reimbursement
Obligations) so that after giving effect thereto each Bank, including each
Additional Bank, holds a pro rata share (in accordance with its Percentage) of
the outstanding Revolving Loans and L/C Obligations based on the amount of its
respective Percentage.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
All payments of principal of and interest on the Loans and the
Reimbursement Obligations, and of all other Obligations payable by the Borrower
under this Agreement and the other Loan Documents, shall be made by the Borrower
to the Agent by no later than 12:00 Noon (Chicago time) on the due date thereof
at the office of the Agent in Chicago, Illinois (or such other location in the
State of Illinois as the Agent may designate to the Borrower) for the benefit of
the Bank or Banks entitled thereto. Any payments received after such time shall
be deemed to have been received by the Agent on the next Business Day. All such
payments shall be made in U.S. Dollars, in immediately available funds at the
place of payment, in each case without set-off or counterclaim. The Agent will
promptly (but not later than 3 days after receipt of said payments by the Agent)
thereafter cause to be distributed like funds relating to the payment of
principal or interest on Loans and on Reimbursement Obligations in which the
Banks have purchased Participating Interests ratably to the Banks and like funds
relating to the payment of any other amount payable to any Bank to such Bank, in
each case to be applied in accordance with the terms of this Agreement.
Anything contained herein to the contrary notwithstanding, all payments
and collections received in respect of the Obligations or Hedging Liability and
all proceeds of the Collateral received, in each instance, by the Agent or any
of the Banks after the occurrence and during the continuation of an Event of
Default shall be remitted to the Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and expenses
reasonably incurred by the Agent, and any security trustee therefor, in
monitoring, verifying, protecting, preserving or enforcing the Liens on
the Collateral by the Agent, and any security trustee therefor, in
protecting, preserving or enforcing rights under the Loan Documents, and
in any event all costs and expenses of a character which the Borrower
has agreed to pay the Agent under Section 12.15 hereof (such funds to be
retained by the Agent for its own account unless it has previously been
reimbursed for such costs and expenses by the Banks, in which event such
amounts shall be remitted to the Banks to reimburse them for payments
theretofore made to the Agent);
(b) second, to the payment of any outstanding interest or other
fees or amounts due under the Notes and the other Loan Documents, in
each case other than for principal on the Loans or in reimbursement or
collateralization of L/C Obligations, pro rata as among the Agent and
the Banks in accord with the amount of such interest and other fees or
amounts owing each;
(c) third, to the payment of the principal of the Swing Line
Note;
(d) fourth, to the payment of the principal of the Notes and any
unpaid Reimbursement Obligations and to the Agent to be held as
collateral security for any other L/C Obligations (until the Agent is
holding an amount of cash equal to the then outstanding amount of all
such L/C Obligations), the aggregate amount paid to or held as
collateral security for the Banks to be allocated pro rata as among the
Banks in accord with the aggregate unpaid principal balances of their
Loans and interests in the Letters of Credit;
(e) fifth, to the Agent, the Banks and their Affiliates ratably
in accordance with the Hedging Liability and any other amounts of any
other indebtedness, obligations or liabilities of the Borrower and its
Subsidiaries owing to each of them and secured by the Collateral
Documents, unless and until all such indebtedness, obligations and
liabilities have been fully paid and satisfied;
(f) sixth, to the Borrower or whoever else applicable law shall
require.
SECTION 4. GUARANTIES.
Section 4.1. Collateral. The Obligations and Hedging Liability shall be
secured by (a) valid, perfected, and enforceable Liens on all right, title, and
interest of the Borrower and each Subsidiary in all capital stock or other
equity interests held by such Person in each of its Subsidiaries, whether now
owned or hereafter formed or acquired, and all proceeds thereof. The Borrower
acknowledges and agrees that the Liens on the Collateral shall be granted to the
Agent for the benefit of itself and the Banks and the Issuing Bank and shall be
valid and perfected first priority Liens.
Section 4.2. Guaranties. The payment and performance of the Obligations
and Hedging Liability shall at all times be guaranteed by each existing or
hereafter acquired Material Subsidiary of the Borrower pursuant to one or more
guaranty agreements in form and substance acceptable to the Agent, as the same
may be amended, modified or supplemented from time to time (individually a
"Guaranty" and collectively the "Guaranties") (each Subsidiary delivering a
Guaranty being hereinafter referred to as a "Guarantor" and collectively the
"Guarantors").
Section 4.3. Further Assurances. The Borrower agrees that it shall, and
shall cause each Material Subsidiary to, from time to time at the request of the
Agent or the Required Banks, execute and deliver such documents and do such acts
and things as the Agent or the Required Banks may reasonably request in order to
provide for or perfect or protect such Liens on the Collateral. In the event the
Borrower or any Subsidiary (a "Parent Subsidiary") forms or acquires any other
Subsidiary (a "New Subsidiary") after the date hereof, the Borrower shall within
10 Business Days of such formation or acquisition cause such New Subsidiary to
execute a Guaranty if such New Subsidiary is a Material Subsidiary, and cause
such Parent Subsidiary to execute such Collateral Documents, in each case as the
Agent may then require to obtain the Guaranties and Collateral required by this
Agreement, and the Borrower shall also deliver to the Agent, or cause such
Guarantor and Parent Subsidiary to deliver to the Agent, at the Borrower's cost
and expense, such other instruments, documents, certificates and opinions
reasonably required by the Agent in connection therewith.
SECTION 5. DEFINITIONS; INTERPRETATION.
Section 5.1. Definitions. The following terms when used herein shall have
the following meanings:
"Account" is defined in Section 9.4 hereof.
"Acquired Business" means the entity or assets acquired by the Borrower
or a Subsidiary in an Acquisition, whether before or after the date hereof.
"Acquisition " means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Borrower or the Subsidiary is the
surviving entity.
"Adjusted EBITDA" means, (a) with reference to any period during which
the ITI Marketing Acquisition occurred, EBITDA for such period calculated on a
pro forma basis, in accordance with the balance sheets, income statements and
other related financial statements furnished to the Agent and the Banks pursuant
to Section 8.9(j) hereof, as if the ITI Marketing Acquisition had taken place on
the first day of such period, and (b) with reference to any other period, EBITDA
for such period.
"Adjusted LIBOR" is defined in Section 1.4(b) hereof.
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise; provided that, in any event for
purposes of this definition, any Person that owns, directly or indirectly, 5% or
more of the securities having the ordinary voting power for the election of
directors or governing body of a corporation or 5% or more of the partnership or
other ownership interest of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other Person.
"Agent" means Harris Trust and Savings Bank, and any successor pursuant
to Section 11.7 hereof.
"Agent's Quoted Rate" is defined in Section 1.8(c) hereof.
"Annualized Interest Expense" means, with reference to any period,
Interest Expense for such period; provided, however, that:
(a) Annualized Interest Expense for any period ending concurrent
with the close of the Borrower's fiscal quarter ended on or about June
30, 1998, shall mean the product of (i) Interest Expense for the monthly
accounting period of the Borrower then ended and (ii) twelve;
(b) Annualized Interest Expense for any period ending concurrent
with the close of the Borrower's fiscal quarter ended on or about
September 30, 1998, shall mean the product of (i) Interest Expense for
the four consecutive monthly accounting periods of the Borrower then
ended, and (ii) three;
(c) Annualized Interest Expense for any period ending concurrent
with the close of the Borrower's fiscal quarter ended on or about
December 31, 1998, shall mean the product of (i) Interest Expense for
the seven consecutive monthly accounting periods of the Borrower then
ended and (ii) a fraction, the numerator of which is twelve and the
denominator of which is seven; and
(d) Annualized Interest Expense for any period ending concurrent
with the close of the Borrower's fiscal quarter ended on or about March
31, 1999, shall mean the product of (i) Interest Expense for the ten
consecutive monthly accounting periods of the Borrower then ended and
(ii) a fraction, the numerator of which is six and the denominator of
which is five.
"Applicable Margin" means, with respect to Loans, Reimbursement
Obligations, and the Revolving Credit Commitment fees and letter of credit fees
payable under Section 2.1 hereof, from the date of this Agreement through the
first Pricing Date the rate per annum specified below:
Applicable Margin for Base Rate Loans and Reimbursement Obligations:
0.000%
Applicable Margin for Eurodollar Loans and letter of credit fee:
1.375%
Applicable Margin for Revolving Credit Commitment fee: 0.300%
; provided that the Applicable Margin shall be subject to quarterly adjustments
on the first Pricing Date, and thereafter from one Pricing Date to the next, so
that the Applicable Margin means a rate per annum determined in accordance with
the following schedule:
APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
TOTAL DEBT RATIO FOR SUCH BASE RATE LOANS AND EURODOLLAR LOANS AND, REVOLVING CREDIT
PRICING DATE REIMBURSEMENT LETTER OF CREDIT FEE COMMITMENT FEE SHALL BE:
OBLIGATIONS SHALL BE: SHALL BE:
Greater than or equal to 0.00% 1.625% 0.30%
2.5 to 1.0
Less than 2.5 to 1.0, but 0.00% 1.375% 0.30%
greater than or equal to
2.0 to 1.0
Less than 2.0 to 1.0, but 0.00% 1.125% 0.25%
greater than or equal to
1.75 to 1.0
Less than 1.75 to 1.0 0.00% 0.875% 0.25%
For purposes hereof, the term "Pricing Date" means, for any fiscal quarter of
the Borrower ending on or after June 30, 1998, the date on which the Agent is in
receipt of the Borrower's most recent financial statements for the fiscal
quarter then ended, pursuant to Section 8.5(a) or (b) hereof. The Applicable
Margin shall be established based on the Total Debt Ratio for the most recently
completed fiscal quarter and the Applicable Margin established on a Pricing Date
shall remain in effect until the next Pricing Date. If the Borrower has not
delivered its financial statements by the date such financial statements (and,
in the case of the year-end financial statements, audit report) are required to
be delivered under Section 8.5(a) or (b) hereof, until such financial statements
and audit report are delivered, the Applicable Margin shall be the highest
Applicable Margin (i.e., the Total Debt Ratio shall be deemed to be greater than
2.5 to 1.0). If the Borrower subsequently delivers such financial statements
before the next Pricing Date, the Applicable Margin established by such late
delivered financial statements shall take effect from the date of delivery until
the next Pricing Date. In all other circumstances, the Applicable Margin
established by such financial statements shall be in effect from the Pricing
Date that occurs immediately after the end of the Borrower's fiscal quarter
covered by such financial statements until the next Pricing Date. Each
determination of the Applicable Margin made by the Agent in accordance with the
foregoing shall be conclusive and binding on the Borrower and the Banks if
reasonably determined.
"Application" is defined in Section 1.2(b) hereof.
"Authorized Representative" means the Chairman of the Board, President,
Chief Executive Officer, Chief Financial Officer, Senior Vice President-Finance
and Vice President & Controller of the Borrower and those other persons (if any)
shown on the list of officers provided by the Borrower pursuant to Section
7.1(h) hereof or on any update of any such list provided by the Borrower to the
Agent, or any further or different officer of the Borrower so named by the
Chairman of the Board, President, Chief Executive Officer, Chief Financial
Officer, Senior Vice President-Finance and Vice President & Controller of the
Borrower in a written notice to the Agent.
"Bank" is defined in the introductory paragraph of this Agreement and
includes each assignee bank pursuant to Section 12.12 hereof.
"Base Rate" is defined in Section 1.4(a) hereof.
"Base Rate Loan" means a Loan bearing interest at a rate specified in
Section 1.4(a) hereof.
"Borrower" is defined in the introductory paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Banks under a Credit on a single date and, in the case of
Eurodollar Loans, for a single Interest Period. Borrowings of Loans are made and
maintained ratably from each of the Banks under a Credit according to their
Percentages of such Credit. A Borrowing is "advanced" on the day Banks advance
funds comprising such Borrowing to the Borrower, is "continued" on the date a
new Interest Period for the same type of Loans commences for such Borrowing, and
is "converted" when such Borrowing is changed from one type of Loans to the
other, all as requested by the Borrower pursuant to Section 1.6(a). Borrowings
of Swing Loans are made from the Agent in accordance with the procedures of
Section 1.8 hereof.
"Business Day" means any day (other than a Saturday or Sunday) on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the advance or continuation of, or conversion
into, or payment of a Eurodollar Loan, on which banks are dealing in U.S. Dollar
deposits in the interbank eurodollar market in London, England.
"Capital Expenditures" means, with respect to any Person (a) for any
period during which the ITI Marketing Acquisition occurred, the aggregate amount
of all expenditures (whether paid in cash or accrued as a liability) by such
Person during that period which, in accordance with GAAP, are or should be
included as "additions to property, plant or equipment" or similar items
reflected in the statement of cash flows of such Person, as if the ITI Marketing
Acquisition had occurred on the first day of such period and (b) for any other
period, the aggregate amount of all expenditures (whether paid in cash or
accrued as a liability) by such Person during that period which, in accordance
with GAAP, are or should be included as "additions to property, plant or
equipment" or similar items reflected in the statement of cash flows of such
Person.
"Capital Lease" means any lease of Property which in accordance with
GAAP is required to be capitalized on the balance sheet of the lessee.
"Capitalized Lease Obligation" means, for any Person, the amount of the
liability shown on the balance sheet of such Person in respect of a Capital
Lease determined in accordance with GAAP.
"Change of Control" means the occurrence of any one or more of the
following: (a) the acquisition by any "person" or "group" (as such terms are
used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than the Schwartz Group, at any time of beneficial ownership of
15% or more of the Voting Stock of the Borrower on a fully-diluted basis, (b)
the failure of the Schwartz Group at any time and for any reason to own both
legally and beneficially at least 30% or more of the Voting Stock of the
Borrower on a fully-diluted basis, or (c) the failure of individuals who are
members of the board of directors of the Borrower on the date of this Agreement
(together with any new or replacement directors whose initial nomination for
election was approved by a majority of the directors who were either directors
on the date of this Agreement or previously so approved) to constitute a
majority of the board of directors of the Borrower
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Collateral" means all properties, rights, interests and privileges from
time to time subject to the Liens granted to the Agent, or any security trustee
therefor, by the Collateral Documents.
"Collateral Documents" means the Pledge Agreement, and all other
security agreements, pledge agreements, assignments, financing statements and
other documents as shall from time to time secure or relate to the Obligations
or any part thereof.
"Commitments" means the Revolving Credit Commitments, the L/C
Commitment, the Swing Line Commitment, and the Term Loan Commitments.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any Subsidiary, are treated
as a single employer under Section 414 of the Code.
"Credit" means any of the Revolving Credit or the Term Credit.
"Credit Event" means the advancing of any Loan, the continuation of or
conversion into a Eurodollar Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"Defaulting Bank" means a Bank which has failed to fund as and when
required by the terms and conditions of this Agreement such Bank's ratable share
of any Loan or unpaid Reimbursement Obligation hereunder, if and so long as such
failure continues unremedied.
"Disposition" means the sale, lease, conveyance, or other disposition of
Property, other than sales or other dispositions expressly permitted under
Section 8.10(a) or 8.10(b) hereof.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America, any State thereof or the District of Columbia.
"EBITDA" means, with reference to any period, Net Income for such period
plus the sum (without duplication) of all amounts deducted in arriving at such
Net Income amount in respect of (v) Interest Expense for such period, (w)
federal, state and local income taxes for such period, (x) depreciation of fixed
assets and amortization of intangible assets (including, without limitation,
goodwill, deferred expenses and organization costs) for such period, (y) the
following non-recurring, non-cash charges to the extent incurred in the relevant
period during the Borrower's fiscal year ended December 31, 1997: (i) a
write-off of in-process research and development at Paragren Technologies, Inc.
in an amount (before taxes) of approximately $19,800,000; (ii) a write-off
reflecting a revision for software impairment aggregating (before taxes)
approximately $3,238,000; (iii) a write-off representing the cumulative effect
of an accounting change for unamortized re-engineering costs expensed by the
Borrower in such year aggregating (before taxes) approximately $3,550,000, and
(z) a non-recurring restructuring charge associated with the ITI Marketing
Acquisition to the extent incurred in the relevant period during the Borrower's
fiscal year ended December 31, 1998 and aggregating (before taxes) not more than
$9,000,000.
"Eligible Line of Business" means any one or more of the principal lines
of business in which the Borrower is engaged as of the date hereof and each line
of business related thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute thereto.
"Eurodollar Loan" means a Loan bearing interest at the rate specified in
Section 1.4(b) hereof.
"Eurodollar Reserve Percentage" is defined in Section 1.4(b) hereof.
"Event of Default" means any event or condition identified as such in
Section 9.1 hereof.
"Event of Loss" means, with respect to any Property, any of the follows:
(a) any loss, destruction or damage of such Property or (b) any condemnation,
seizure, or taking, by exercise of the power of eminent domain or otherwise, of
such Property, or confiscation of such Property or the requisition of the use of
such Property.
"Existing Credit Agreement" means (i) the Existing Harris Agreement and
(ii) the Existing ITI Credit Agreement.
"Existing Harris Agreement" means that certain Credit Agreement dated as
of June 3, 1997 by and among the Borrower, Harris Trust and Savings Bank, as
Agent and the other lenders party thereto.
"Existing ITI Credit Agreement" means that certain Note and Warrant
Purchase Agreement dated as of August 31, 1995 between ITI Holdings, Inc., ITI
Marketing, Nomura Holding America, Inc. and the other lenders party thereto.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate appearing in
Section 1.4(a) hereof.
"Fixed Charges" shall mean, with respect to any period, the sum (without
duplication) of (i) all payments of principal due under the terms of any Total
Funded Debt within twelve calendar months after the close of such period plus
(ii) Annualized Interest Expense during the same such period, all of the
foregoing as determined for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"Fixed Rate Loan" means any Eurodollar Loan and (to the extent bearing
interest with reference to the Agent's Quoted Rate) any Swing Loan.
"Foreign Subsidiary" means any and all Subsidiaries organized under the
laws of any jurisdiction other than those of the United States of America.
"GAAP" means generally accepted accounting principles set forth from
time to time 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 agencies with
similar functions of comparable statute and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Guarantors" is defined in Section 4.2 hereof.
"Guaranty" is defined in Section 4.2 hereof.
"Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Hedging Liability" means the liability of the Borrower to any of the
Banks or their Affiliates in respect of any interest rate swaps, interest rate
caps, interest rate collars, or other interest rate hedging arrangements as the
Borrower may from time to time enter into with any one or more of the Banks
party to this Agreement or their Affiliates. Unless and until the amount of the
Hedging Liability is fixed and determined, the Hedging Liability shall be deemed
to be the market value of the notional amount of the hedge from the date of
computation to the date the hedge expires.
"Hostile Acquisition" means (x) the acquisition of the capital stock or
other equity interests of a Person through a tender offer or similar
solicitation of the owners of such capital stock or other equity interests which
has not been approved (prior to such acquisition) by resolutions of the Board of
Directors of such Person or by similar action if such Person is not a
corporation, and (y) any such acquisition as to which such approval has been
withdrawn.
"ITI Marketing" means ITI Marketing Services, Inc., a Delaware
corporation.
"ITI Marketing Acquisition" means the acquisition of ITI Marketing by
Borrower pursuant to the ITI Marketing Purchase Agreement.
"ITI Marketing Purchase Agreement" means that certain Merger Agreement
dated as of April 30, 1998, by and among the Borrower, ITI Holdings, Inc., a
Delaware corporation, ITI Marketing Acquisition Corp., a Delaware corporation
and the "Principal Stockholders" defined therein, all exhibits, schedules, and
attachments thereto, and all instruments and documents to be executed and
delivered in connection therewith.
"Indebtedness for Borrowed Money" means for any Person (without
duplication) (i) all indebtedness created, assumed or incurred in any manner by
such Person representing money borrowed (including by the issuance of debt
securities), (ii) all indebtedness for the deferred purchase price of property
or services (other than trade accounts payable and deferred compensation
arrangements with officers and employees, in each case arising in the ordinary
course of business), (iii) all indebtedness secured by any Lien upon Property of
such Person, whether or not such Person has assumed or become liable for the
payment of such indebtedness, (iv) all Capitalized Lease Obligations of such
Person and (v) all obligations of such Person on or with respect to letters of
credit, bankers' acceptances and other extensions of credit whether or not
representing obligations for borrowed money.
"Interest Expense" means, with reference to any period, the sum of all
interest charges (including imputed interest charges with respect to Capitalized
Lease Obligations and all amortization of debt discount and expense) of the
Borrower and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Interest Period" is defined in Section 1.9 hereof.
"Issuing Bank" means Harris Trust and Savings Bank.
"L/C Commitment" means $10,000,000, as reduced pursuant to the terms
hereof.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 10.4 hereof.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"LIBOR" is defined in Section 1.4(b) hereof.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, Capital Lease or other title
retention arrangement.
"Loan" means and includes Revolving Loans, Term Loans, and Swing Loans,
and each of them singly, and the term "type" of Loan refers to its status as a
Revolving Loan, Term Loan or Swing Loan, or, if a Revolving Loan or Term Loan,
to its status as a Base Rate Loan or Eurocurrency Loan.
"Loan Documents" means this Agreement, the Notes, the Applications, the
Collateral Documents, the Guaranties, and each other instrument or document to
be delivered hereunder or thereunder or otherwise in connection therewith.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower, or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Borrower or any Subsidiary to perform its monetary obligations under any Loan
Document; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against the Borrower or any Subsidiary of any Loan
Document.
"Material Subsidiary" shall mean each Subsidiary other than a Non-
Material Subsidiary
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, as applicable, (a) with respect to any
Disposition by a Person, cash and cash equivalent proceeds received by or for
such Person's account, net of (i) reasonable direct costs relating to such
Disposition, (ii) sale, use, or other transactional taxes paid or payable by
such Person as a direct result of such Disposition, and (iii) amounts required
to be applied to repay principal of, premium, if any, and interest on any
Indebtedness for Borrowed Money secured by a Lien on the Property (or portion
thereof) sold or otherwise disposed of (other than the Obligations hereunder)
which is required to be and is repaid in connection with such Disposition; (b)
with respect to any Event of Loss of a Person, cash and cash equivalent proceeds
received by or for such Person's account (whether as a result of payments made
under any applicable insurance policy therefor or in connection with
condemnation proceedings or otherwise), net of (i) reasonable direct costs
incurred in connection with the collection of such proceeds, awards or other
payments and (ii) amounts required to be applied to repay principal of, premium,
if any, and interest on any Indebtedness for Borrowed Money secured by a Lien on
the Property (or portion thereof) so damaged or taken (other than the
Obligations hereunder) which is required to be and is repaid in connection with
such Event of Loss; and (c) with respect to any offering of equity securities of
a Person or the issuance of any Indebtedness for Borrowed Money by a Person,
cash and cash equivalent proceeds received by or for such Person's account, net
of reasonable legal, underwriting, and other fees and expenses incurred as a
direct result thereof.
"Net Income" means, with reference to any period, the net income (or net
loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP.
"Net Worth" means, as of any time the same is to be determined, the
total shareholders' equity (including capital stock, additional paid-in-capital
and retained earnings after deducting treasury stock, but excluding minority
interests in Subsidiaries) which would appear on the balance sheet of the
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP, less the sum of (i) all notes receivable from officers and employees
of the Borrower and its Subsidiaries and (ii) the write-up of assets above cost.
"Non-Material Subsidiary" shall mean any Subsidiary (i) the revenues of
which (directly and together with its subsidiaries) for the most recently
completed fiscal year of the Borrower were less than 2% of the Borrower's
consolidated revenues for such fiscal year and (ii) the consolidated total
assets of which (directly and together with its subsidiaries) as of the date of
such financial statements were less than 2% of the Borrower's consolidated total
assets as of such date; provided, however, that each Subsidiary which would (but
for this proviso) constitute a Non-Material Subsidiary with the greatest
revenues shall constitute a Material Subsidiary if (i) the revenues of such
Subsidiary (directly and together with its subsidiaries), when together with the
revenues of Non-Material Subsidiaries (directly and together with their
respective subsidiaries), in each case for the most recently completed fiscal
year of the Borrower equal or exceed 5% of the Borrower's consolidated revenues
for such fiscal year or (ii) the consolidated total assets of such Subsidiary
(directly and together with its subsidiaries), when taken together with the
consolidated total assets of the Non-Material Subsidiaries (directly and
together with their respective subsidiaries), in each case as the date of such
financial statements equal or exceed 5% of the Borrower's consolidated total
assets as of such date.
"Notes" means and includes the Revolving Notes, Term Notes and Swing
Line Note.
"Obligations" means all fees payable hereunder, all obligations of the
Borrower to pay principal and interest on Loans and Reimbursement Obligations,
and all other payment obligations of the Borrower or any Subsidiary arising
under or in relation to any Loan Document, in each case whether now existing or
hereafter arising.
"Participating Bank" is defined in Section 1.2(d) hereof.
"Participating Interest" is defined in Section 1.2(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Percentage" means for any Bank its Revolver Percentage or Term Loan
Percentage, as applicable.
"Permitted Shareholder Redemptions" means redemptions by the Borrower of
its common capital stock during the period from the date hereof through June 1,
2003 for an aggregate consideration not to exceed $10,000,000.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization or any other
entity or organization, including a government or agency or political
subdivision thereof.
"Plan" means any employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
that either (i) is maintained by a member of the Controlled Group for employees
of a member of the Controlled Group or (ii) is maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
"Pledge Agreement" means that certain Pledge Agreement dated as of May
20, 1998 among the Borrower, certain of its Subsidiaries, and the Agent, as the
same may be amended, modified or restated from time to time.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Reimbursement Obligation" is defined in Section 1.2(c) hereof.
"Required Banks" means, at any time, Banks whose outstanding Loans and
interests in Letters of Credit and Unused Revolving Credit Commitments
constitute more than 51% of the sum of the total outstanding Loans, interests in
Letters of Credit and Unused Revolving Credit Commitments of the Banks;
provided, however, if at such time (i) any Bank shall be a Defaulting Bank and
(ii) no Event of Default shall have occurred and be continuing, there shall be
excluded from the determination of Required Banks the outstanding Loans and
interests in Letters of Credit and Unused Revolving Credit Commitments of such
Bank at such time.
"Revolving Credit" means the credit facility for making Revolving Loans
and issuing Letters of Credit described in Sections 1.1 and 1.2 hereof.
"Revolver Percentage" means, for each Bank, the percentage of the
Revolving Credit Commitments represented by such Bank's Revolving Credit
Commitment or, if the Revolving Credit Commitments have been terminated, the
percentage held by such Bank (including through participation interests in
Reimbursement Obligations) of the aggregate principal amount of all Revolving
Loans and L/C Obligations then outstanding.
"Revolving Credit Commitment" is defined in Section 1.1 hereof.
"Revolving Credit Termination Date" means June 1, 2003, or such earlier
date on which the Revolving Credit Commitments are terminated in whole pursuant
to Section 1.14, 9.2 or 9.3 hereof.
"Revolving Loan" is defined in Section 1.1 hereof and, as so defined,
includes a Base Rate Loan or a Eurodollar Loan, each of which is a "type" of
Revolving Loan hereunder.
"Revolving Note" is defined in Section 1.12(a) hereof.
"S&P" means Standard & Poor's Ratings Services Group, a division of The
McGraw-Hill Companies, Inc.
"Schwartz Group" means Theodore G. Schwartz, members of his immediately
family and trust for the benefit of any one or more of the foregoing.
"Subordinated Debt" means Indebtedness for Borrowed Money of the
Borrower or any Subsidiary owing to any Person on terms and conditions, and in
such amounts, acceptable to the Agent and the Required Banks in their sole
discretion and which is subordinated in right of payment to the prior payment in
full of the Obligations pursuant to written subordination provisions approved in
writing by the Agent and the Required Banks.
"Subsidiary" means, as to any particular parent corporation or
organization, any other corporation or organization more than 50% of the
outstanding Voting Stock of which is at the time directly or indirectly owned by
such parent corporation or organization or by any one or more other entities
which are themselves subsidiaries of such parent corporation or organization.
The term "Subsidiary" means a subsidiary of the Borrower or of any of its direct
or indirect Subsidiaries.
"Swing Line" means the credit facility for making a Swing Line Loan
described in Section 1.8 hereof.
"Swing Line Loans" is defined in Section 1.8 hereof.
"Swing Line Note" is defined in Section 1.8 hereof.
"Swing Line Commitment" means $10,000,000, as reduced pursuant to the
terms hereof.
"Term Credit" means the credit facility for Term Loans described in
Section 1.3
hereof.
"Term Loan Commitment" is defined in Section 1.3 hereof.
"Term Loan" is defined in Section 1.3 hereof and, as so defined,
includes a Base Rate Loan or a Eurodollar Loan, each of which is a "type" of
Term Loan hereunder.
"Term Note" is defined in Section 1.12(b) hereof.
"Term Loan Percentage" means, for each Bank, the percentage of the Term
Loan Commitments represented by such Bank's Term Loan Commitment or, if the Term
Loan Commitments have been terminated or have expired, the percentage held by
such Bank of the aggregate principal amount of all Term Loans then outstanding.
"Total Assets" means, at any time the same is to be determined, total
assets computed in accordance with GAAP for the Borrower and its Subsidiaries.
"Total Consideration" means the total amount (but without duplication)
of (a) cash paid in connection with any Acquisition, plus (b) indebtedness
payable to the seller in connection with such Acquisition, plus (c) the fair
market value of any equity securities, including any warrants or options
therefor, delivered in connection with any Acquisition (other than new equity
securities issued by the Borrower), plus (d) the present value of covenants not
to compete entered into in connection with such Acquisition or other future
payments which are required to be made over a period of time and are not
contingent upon the Borrower or its Subsidiary meeting financial performance
objectives (discounted at the Base Rate), but only to the extent not included in
clause (a), (b), or (c) above, plus (e) the amount of indebtedness assumed in
connection with such Acquisition.
"Total Debt Ratio" means, as of the last day of any fiscal quarter of
the Borrower, the ratio of (a) Total Funded Debt as of the last day of such
fiscal quarter, to (b) Adjusted EBITDA for the four fiscal quarters then ended.
"Total Funded Debt" means, at any time the same is to be determined, the
aggregate of all Indebtedness for Borrowed Money of the Borrower and its
Subsidiaries at such time, including all Indebtedness for Borrowed Money of any
other Person which is directly or indirectly guaranteed by the Borrower or any
of its Subsidiaries or which the Borrower or any of its Subsidiaries has agreed
(contingently or otherwise) to purchase or otherwise acquire or in respect of
which the Borrower or any of its Subsidiaries has otherwise assured a creditor
against loss.
"Unfunded Vested Liabilities" means, for any Plan at any time, the
amount (if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"Unused Revolving Credit Commitments" means, at any time, the difference
between the Revolving Credit Commitments then in effect and the aggregate
outstanding principal amount of Revolving Loans and L/C Obligations.
"Voting Stock" of any Person means capital stock or other equity
interests of any class or classes (however designated) having ordinary power for
the election of directors or other similar governing body of such Person, other
than stock or other equity interests having such power only by reason of the
happening of a contingency.
"Welfare Plan" means a "welfare plan" as defined in Section 3(1) of
ERISA.
"Wholly-owned Subsidiary" means a Subsidiary of which all of the issued
and outstanding shares of capital stock (other than directors' qualifying shares
as required by law) or other equity interests are owned by the Borrower and/or
one or more Wholly-owned Subsidiaries within the meaning of this definition.
Section 5.2. Interpretation. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. The words
"hereof", "herein", and "hereunder" and words of like import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. All references to time of day herein are references
to Chicago, Illinois time unless otherwise specifically provided. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, it shall be done in
accordance with GAAP except where such principles are inconsistent with the
specific provisions of this Agreement.
Section 5.3. Change in Accounting Principles. If, after the date of this
Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements referred to in Section 6.5 hereof and
such change shall result in a change in the method of calculation of any
financial covenant, standard or term found in this Agreement, either the
Borrower or the Required Banks may by notice to the Banks and the Borrower,
respectively, require that the Banks and the Borrower negotiate in good faith to
amend such covenants, standards, and term so as equitably to reflect such change
in accounting principles, with the desired result being that the criteria for
evaluating the financial condition of the Borrower and its Subsidiaries shall be
the same as if such change had not been made. No delay by the Borrower or the
Required Banks in requiring such negotiation shall limit their right to so
require such a negotiation at any time after such a change in accounting
principles. Until any such covenant, standard, or term is amended in accordance
with this Section 5.3, financial covenants shall be computed and determined in
accordance with GAAP in effect prior to such change in accounting principles.
Without limiting the generality of the foregoing, the Borrower shall neither be
deemed to be in compliance with any financial covenant hereunder nor out of
compliance with any financial covenant hereunder if such state of compliance or
noncompliance, as the case may be, would not exist but for the occurrence of a
change in accounting principles after the date hereof.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Banks as
follows:
Section 6.1. Organization and Qualification. The Borrower is duly
organized, validly existing and in good standing as a corporation under the laws
of the state of its incorporation, has full and adequate corporate power to own
its Property and conduct its business as now conducted, and is duly licensed or
qualified and in good standing in each jurisdiction in which the nature of the
business conducted by it or the nature of the Property owned or leased by it
requires such licensing or qualifying, except where the failure to do so would
not have a Material Adverse Effect.
Section 6.2. Subsidiaries. Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, as the case may be, has full and adequate power to
own its Property and conduct its business as now conducted, and is duly licensed
or qualified and in good standing in each jurisdiction in which the nature of
the business conducted by it or the nature of the Property owned or leased by it
requires such licensing or qualifying, except where the failure to do so would
not have a Material Adverse Effect. Each Wholly-Owned Subsidiary that is a
Material Subsidiary is also a Guarantor. Schedule 6.2 hereto (as the same may be
deemed amended pursuant to Section 8.10(c) or 8.17 hereof) identifies each
Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its
capital stock or other equity interests owned by the Borrower and the other
Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding and whether such Subsidiary is a Material or
Non-Material Subsidiary. All of the outstanding shares of capital stock and
other equity interests of each Subsidiary are validly issued and outstanding and
fully paid and nonassessable and all such shares and other equity interests
indicated on Schedule 6.2 (as the same may be deemed amended pursuant to Section
8.10(c) or 8.17 hereof) as owned by the Borrower or a Subsidiary are owned,
beneficially and of record, by the Borrower or such Subsidiary free and clear of
all Liens other than the Liens granted in favor of the Agent pursuant to the
Collateral Documents. There are no outstanding commitments or other obligations
of any Subsidiary to issue, and no options, warrants or other rights of any
Person to acquire, any shares of any class of capital stock or other equity
interests of any Subsidiary.
Section 6.3. Authority and Validity of Obligations. The Borrower has
full right and authority to enter into this Agreement and the other Loan
Documents executed by it, to make the borrowings herein provided for, to issue
its Notes in evidence thereof, to grant to the Agent the Liens described in the
Collateral Documents executed by the Borrower, and to perform all of its
obligations hereunder and under the other Loan Documents executed by it. Each
Subsidiary has full right and authority to enter into the Loan Documents
executed by it, to guarantee the Obligations, to grant to the Agent the Liens
described in the Collateral Documents executed by such Person, and to perform
all of its obligations under the Loan Documents executed by it. The Loan
Documents delivered by the Borrower and by each Subsidiary have been duly
authorized, executed and delivered by such Person and constitute valid and
binding obligations of such Person enforceable in accordance with their terms
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law); and this Agreement and the
other Loan Documents do not, nor does the performance or observance by the
Borrower or any Subsidiary of any of the matters and things herein or therein
provided for, (a) contravene or constitute a default under any provision of law
or any judgment, injunction, order or decree binding upon the Borrower or any
Subsidiary or any provision of the charter, articles of incorporation, by-laws
or comparable constituent documents of the Borrower or any Subsidiary, (b)
contravene or constitute a default under any covenant, indenture or agreement of
or affecting the Borrower or any Subsidiary or any of its Property, in each case
where such contravention or default is reasonably likely to have a Material
Adverse Effect, or (c) result in the creation or imposition of any Lien on any
Property of the Borrower or any Subsidiary other than the Liens granted in favor
of the Agent pursuant to the Collateral Documents.
Section 6.4. Use of Proceeds; Margin Stock. The Borrower shall use the
proceeds of the Loans for the purpose of financing the ITI Marketing
Acquisition, refinancing existing indebtedness and for its general corporate
purposes. Neither the Borrower nor any Subsidiary is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan or any other extension of
credit made hereunder will be used to purchase or carry any such margin stock or
to extend credit to others for the purpose of purchasing or carrying any such
margin stock. Margin stock (as hereinabove defined) constitutes less than 25% of
those assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
Section 6.5. Financial Reports.
(a) APAC. The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 28, 1997, and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, and accompanying notes thereto, which financial
statements are accompanied by the audit report of Arthur Andersen LLP,
independent public accountants, and the unaudited interim consolidated balance
sheet of the Borrower and its Subsidiaries as at June 30, 1998, and the related
consolidated statements of income and retained earnings of the Borrower and its
Subsidiaries for the 6 monthly accounting periods then ended, heretofore
furnished to the Banks, fairly present in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries as at said dates and
the consolidated results of their operations and cash flows for the periods then
ended in conformity with GAAP applied on a consistent basis. Neither the
Borrower nor any Subsidiary has contingent liabilities which are material to it
other than as indicated on such financial statements or, with respect to future
periods, on the financial statements furnished pursuant to Section 8.5 hereof.
(b) ITI Marketing. The consolidated balance sheet of ITI Marketing and
its subsidiaries as at December 31, 1997, and the related consolidated
statements of income, retained earnings and cash flows of ITI Marketing and its
subsidiaries for the fiscal year then ended, and accompanying notes thereto,
which financial statements are accompanied by the audit report of Arthur
Andersen LLP, independent public accountants, and the unaudited interim
consolidated balance sheet of ITI Marketing and its subsidiaries as at March 31,
1998, and the related consolidated statements of income and retained earnings of
ITI Marketing and its subsidiaries for the three months then ended, heretofore
furnished to the Banks, fairly present in all material respects the consolidated
financial condition of ITI Marketing and its subsidiaries as at said dates and
the consolidated results of their operations and cash flows for the periods then
ended in conformity in all material respects with GAAP applied on a consistent
basis. Neither ITI Marketing nor any subsidiary thereof has contingent
liabilities which are material to it other than as indicated on such financial
statements or, with respect to future periods, on the financial statements
furnished pursuant to Section 8.5 hereof.
Section 6.6. No Material Adverse Change. (a) APAC. Since December 29,
1997, except as disclosed in a Form 8-K of the Borrower filed as of May 20, 1998
with the Securities and Exchange Commission, there has been no change in the
condition (financial or otherwise) or business prospects of the Borrower or any
Subsidiary, none of which individually or in the aggregate have been materially
adverse.
(b) ITI Marketing. The Borrower is not aware of any change, since
December 31, 1997, in the condition (financial or otherwise) or business
prospects of ITI Marketing and its subsidiaries, none of which individually or
in the aggregate have been materially adverse.
Section 6.7. Full Disclosure. The statements and information furnished
by or on behalf of the Borrower to the Banks in connection with the negotiation
of this Agreement and the other Loan Documents and the commitments by the Banks
to provide all or part of the financing contemplated hereby do not (x) contain
any untrue statements of a fact or (y) omit a fact necessary to make the
material statements contained herein or therein, in light of the circumstances
under which they were made, not misleading, in either case where the correct or
complete facts would, if they constituted a change from the facts as originally
disclosed or stated, have been reasonably likely to have a Material Adverse
Effect; the Banks acknowledging that, as to any projections and other
forward-looking statements regarding future expectations and the beliefs (the
"Statements") furnished by the Borrower to the Banks, the Borrower only
represents that, at the time the Statements were made by the Borrower to the
Banks the Borrower did not know of any material facts that would cause the
Statements to be untrue.
Section 6.8. Trademarks, Franchises, and Licenses. The Borrower and each
of the Subsidiaries own, possess or have the right to use all necessary patents,
licenses, franchises, trademarks, trade names, trade styles, copyrights, trade
secrets, know how and confidential commercial and proprietary information to
conduct their businesses as now conducted, without known conflict with any
patent, license, franchise, trademark, trade name, trade style, copyright or
other proprietary right of any other Person, in each case where the failure to
own, possess or have the right to use such Property is reasonably likely to have
a Material Adverse Effect.
Section 6.9. Governmental Authority and Licensing. The Borrower and each
of the Subsidiaries have received all licenses, permits, and approvals of all
Federal, state, local, and foreign governmental authorities, if any, necessary
to conduct their business, in each case where the failure to obtain or maintain
the same is reasonably likely to have a Material Adverse Effect. No
investigation or proceeding which, if adversely determined, is reasonably likely
to result in revocation or denial of any material license, permit, or approval,
is pending or, to the knowledge of the Borrower, threatened.
Section 6.10. Good Title. The Borrower and each of the Subsidiaries have
good and defensible title (or valid leasehold interests) to their assets as
reflected on the most recent consolidated balance sheet of the Borrower and its
Subsidiaries furnished to the Banks (except for sales of assets in the ordinary
course of business), subject to no Liens other than such thereof as are
permitted by Section 8.8 hereof.
Section 6.11. Litigation and Other Controversies. There is no litigation
or governmental proceeding or labor controversy pending, nor to the knowledge of
the Borrower threatened, against the Borrower or any Subsidiary which is
reasonably likely to be adversely determined and if so determined is reasonably
likely to have a Material Adverse Effect.
Section 6.12. Taxes. All tax returns required to be filed by the Borrower
or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees and other governmental charges upon the Borrower or any
Subsidiary or upon any of its respective Property, income or franchises, which
are shown to be due and payable in such returns, have been paid, except (i) such
taxes, assessments, fees and governmental charges, if any, as are being
contested in good faith and by appropriate proceedings which prevent enforcement
of the matter under contest and as to which adequate reserves established in
accordance with GAAP have been provided and (ii) those returns other than United
States federal income tax returns, the failure to file of which could not
reasonably be expected to have a Material Adverse Effect. The Borrower does not
know of any proposed additional tax assessment against the Borrower or any
Subsidiary for which adequate provisions in accordance with GAAP have not been
made on their accounts. Adequate provisions in accordance with GAAP for taxes on
the books of the Borrower and each Subsidiary have been made for all open years,
and for its current fiscal period.
Section 6.13. Approvals. No authorization, consent, license, or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Borrower or any Subsidiary, or of any other Person, is or will be necessary
to the valid execution, delivery or performance by the Borrower or any
Subsidiary of this Agreement or any other Loan Document, except for such
approvals which have been obtained prior to the date of this Agreement and
remain in full force and effect.
Section 6.14. Affiliate Transactions. Neither the Borrower nor any
Subsidiary is a party to any material contracts or agreements with any of its
Affiliates on terms and conditions which are less favorable to the Borrower or
such Subsidiary than would be usual and customary in similar contracts or
agreements between Persons not affiliated with each other.
Section 6.15. Investment Company; Public Utility Holding Company. Neither
the Borrower nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "public utility holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 6.16. ERISA. The Borrower and each of its Subsidiaries, and each
member of its Controlled Group, have fulfilled their obligations under the
minimum funding standards of, and are in compliance in all material respects
with, ERISA and the Code to the extent applicable to any Plan maintained by any
one or more of them or for the benefit of their employees and have not incurred
any liability to the PBGC or a Plan under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA. Neither the
Borrower nor any Subsidiary has any material contingent liabilities with respect
to any post-retirement benefits under a Welfare Plan, other than liability for
continuation coverage described in article 6 of Title I of ERISA.
Section 6.17. Compliance with Laws. To the best knowledge of the
Borrower, the Borrower and each of its Subsidiaries are in compliance in all
material respects with the requirements of all federal, state and local laws,
rules and regulations applicable to or pertaining to their Properties or
business operations (including, without limitation, the Occupational Safety and
Health Act of 1970, the Americans with Disabilities Act of 1990, laws and
regulations relating to the providing of health care services and products, and
laws and regulations establishing quality criteria and standards for air, water,
land and toxic or hazardous wastes and substances), where any such
non-compliance, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
notice to the effect that its operations are not in compliance with any of the
requirements of applicable federal, state or local environmental, health and
safety statutes and regulations or are the subject of any governmental
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, where
any such non-compliance or remedial action, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect.
Section 6.18. Other Agreements. Neither the Borrower nor any Subsidiary
is in default under the terms of any covenant, indenture or agreement of or
affecting such Persons or any of their Properties, which default if uncured is
reasonably likely to have a Material Adverse Effect.
Section 6.19. Solvency. The Borrower and its Subsidiaries are able to pay
their debts as they become due and have sufficient capital to carry on their
businesses and all businesses in which they are about to engage in; and the
amount that will be required to pay the Borrower's and each Subsidiary's
probable liabilities as they become absolute and mature is less than the sum of
the present fair sale value of its assets as a going concern.
Section 6.20. ITI Marketing Acquisition. The Borrower has heretofore
delivered to the Agent a true and correct copy of the ITI Marketing Purchase
Agreement and, except to the extent consented to in writing by the Agent, the
ITI Marketing Purchase Agreement has not been amended or modified in any respect
and no condition to the effectiveness thereof or the obligations of the Borrower
thereunder has been waived. The Borrower and, to the best of the Borrower's
knowledge, ITI Marketing has all necessary right, power, and authority to
consummate the transactions contemplated by the ITI Marketing Purchase Agreement
and to perform all of their obligations thereunder. The ITI Marketing Purchase
Agreement has been duly authorized, executed, and delivered by the Borrower and,
to the best of the Borrower's knowledge, ITI Marketing and the ITI Marketing
Purchase Agreement constitutes the valid and binding obligation of the Borrower
and to the best of the Borrower's knowledge, ITI Marketing, enforceable against
each of them in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether the application of such principles is considered in a
proceeding in equity or at law); and the ITI Marketing Purchase Agreement does
not, nor does the observance or performance by the Borrower or, to the best of
the Borrower's knowledge, ITI Marketing of any of the matters and things therein
provided for, contravene or constitute a default under any provision of law or
any judgment, injunction, order, or decree binding upon such Person or any
provision of the charter, articles of incorporation, or by-laws of such Person
or any covenant, indenture, or agreement of or affecting such Person or any of
its Property, or result in the creation or imposition of any Lien on any such
Person's Property. No authorization, consent, license, or exemption from, or
filing or registration with, any court or governmental department, agency, or
instrumentality, nor any approval or consent of any other Person, is or will be
necessary to the valid execution, delivery, or performance by the Borrower, to
the best of the Borrower's knowledge, ITI Marketing of the ITI Marketing
Purchase Agreement or of any other instrument or document executed and delivered
in connection therewith, except for such thereof that have heretofore been
obtained and remain in full force and effect. Neither the Borrower nor, to the
best of the Borrower's knowledge, ITI Marketing are in default in any of their
respective obligations under the ITI Marketing Purchase Agreement.
Section 6.21. Year 2000 Compliance. The Borrower and its Subsidiaries
have conducted a comprehensive review and assessment of its computer
applications, and have made inquiry of their material suppliers, vendors and
customers, with respect to any defect in computer software, data bases,
hardware, controls and peripherals related to the occurrence of the year 2000 or
the use of any date after December 31, 1999, in connection therewith. Based on
the foregoing review, assessment and inquiry, the Borrower believes that no such
defect could reasonably be expected to have a Material Adverse Effect.
Section 6.22. No Default. No Default or Event of Default has
occurred and is continuing.
SECTION 7. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue or convert any Loan
(whether a Revolving Loan or Swing Loan, but in any event other than the
continuation of, or conversion into, a Base Rate Loan) or of the Issuing Bank to
issue, extend the expiration date (including by not giving notice of
non-renewal) of or increase the amount of any Letter of Credit under this
Agreement, shall be subject to the following conditions precedent:
Section 7.1. Initial Credit Event. Before or concurrently with the
initial Credit Event:
(a) the Agent shall have received for each Bank this Agreement
duly executed by the Borrower and the Banks;
(b) the Agent shall have received for each Bank such Bank's duly
executed Notes of the Borrower dated the date hereof and otherwise in
compliance with the provisions of Section 1.12 hereof;
(c) the Agent shall have received the Pledge Agreement duly
executed by the Borrower and each relevant Subsidiary, and the Guaranty
duly executed by each Material Subsidiary, together with (i) original
stock certificates or other similar instruments or securities
representing all of the issued and outstanding shares of capital stock
or other equity interest of each Subsidiary as of the date of this
Agreement, (ii) stock powers for the Collateral consisting of the stock
or other equity interest of each Subsidiary each to be executed in blank
and undated, and (iii) UCC financing statements to be filed against the
Borrower and each Subsidiary, as debtor, in favor of the Agent, as
secured party;
(d) the Agent shall have received for each Bank copies of the
Borrower's and each Subsidiary's articles of incorporation and bylaws
(or comparable constituent documents) and any amendments thereto,
certified in each instance by its Secretary or Assistant Secretary;
(e) the Agent shall have received for each Bank copies of
resolutions of the Borrower's and of each Subsidiary's Board of
Directors (or comparable governing body) authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party and the consummation of the transactions
contemplated hereby and thereby, together with specimen signatures of
the persons authorized to execute such documents on the Borrower's and
such Subsidiary's behalf, all certified in each instance by its
Secretary or Assistant Secretary;
(f) the Agent shall have received for each Bank copies of the
certificates of good standing for the Borrower and for each Material
Subsidiary (dated no earlier than 30 days prior to the date of the
Previous Credit Agreement) from the office of the secretary of the state
of its incorporation and of each state (other than any state in which it
is not in good standing and such failure to be in good standing would
not have a Material Adverse Effect) in which it is qualified to do
business as a foreign corporation;
(g) the Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives;
(h) the Agent shall have received for itself and for the Banks
the initial fees called for by Section 2.1 hereof;
(i) the Agent shall have received and approved as satisfactory to
it, (i) the audit reports and accompanying financial statements of the
Borrower and its Subsidiaries for the Borrower's five most recently
completed fiscal years, (ii) the audit reports and accompanying
financial statements of ITI Marketing and its subsidiaries for ITI
Marketing's three most recently completed fiscal years, (iii) a proforma
consolidated balance sheet for the Borrower immediately after giving
effect to the ITI Marketing Acquisition and (iv) a pro forma
consolidated balance sheet of ITI Marketing immediately after giving
effect to the ITI Marketing Acquisition;
(j) the Agent shall have completed its due diligence review of
the (i) environmental liabilities of the Borrower and its Subsidiaries
and (ii) material contracts, licenses, permits and agreements to which
the Borrower and its Subsidiaries are subject and approved the results
of such review as satisfactory to it;
(k) each Bank shall have received such evaluations and
certifications as it may reasonably require (including a compliance
certificate in the form attached hereto as Exhibit G containing
compliance calculations of the financial covenants as of the date of
this Agreement after giving effect to the ITI Marketing Acquisition) in
order to satisfy itself as to the value of the Collateral, the financial
condition of the Borrower and its Subsidiaries, and the lack of material
environmental and other contingent liabilities of the Borrower and its
Subsidiaries;
(l) the Agent shall have received evidence satisfactory to it
that (x) the Total Consideration payable by the Borrower with respect to
the ITI Marketing Acquisition is not more than $160,000,000 (excluding
the Total Consideration payable after closing of the ITI Marketing
Acquisition attributable to certain United States Postal Service
contracts, such post-closing Total Consideration not to exceed the
amounts set forth in the ITI Marketing Purchase Agreement, (y) all
conditions precedent to the ITI Marketing Acquisition (except for the
Banks' funding of the purchase price therefor) have been satisfied in
accordance with the terms of the ITI Marketing Purchase Agreement
(without giving effect to any amendment, modification or waiver thereto
not consented to in writing by the Agent) and its effectiveness and (z)
the ITI Marketing Purchase Agreement is effective;
(m) all legal, tax and regulatory matters incident to the Credits
and the ITI Marketing Acquisition, including without limitation all
regulatory approvals of the ITI Marketing Acquisition under the
Hart-Scott-Rodino Act, shall be satisfactory to the Agent;
(n) the Agent shall have received (i) for each Bank the favorable
written opinions of counsel to the Borrower and its Subsidiaries, in
form and substance reasonably satisfactory to the Agent and (ii) a
fairness opinion on ITI Marketing as prepared by Merrill Lynch, Pierce,
Fenner & Smith, Incorporated;
(o) the Agent shall have received and approved as to form and
substance the ITI Marketing Purchase Agreement and all other instruments
and documents applicable thereto;
(p) the Borrower shall have common and preferred stock and
paid-in equity capital of at least $125,000,000 immediately after giving
effect to the ITI Marketing Acquisition;
(q) the Agent shall have received satisfactory assurances that
the Agent will have received and approved (both as to form and
substance) such UCC financing statements and other instruments and
documents as it shall deem necessary to perfect the Liens required
hereunder and satisfactory lien searches confirming the priority of such
Liens;
(r) the Agent shall have received and approved as to form and
substance (i) an Environmental Checklist regarding environmental
liabilities and (ii) a Year 2000 Questionnaire regarding matters of the
type addressed by Section 6.21 hereof, each to be properly completed and
duly executed by the Borrower; and
(s) each Guarantor shall have executed and delivered to the Banks
their consent to this Agreement in the form set forth below.
References in this Section to Subsidiaries shall be deemed to include
ITI Marketing and its subsidiaries prior to, as well as after, consummation of
the ITI Marketing Acquisition.
Section 7.2. All Credit Events. As of the time of each Credit Event
hereunder:
(a) in the case of a Borrowing the Agent shall have received the
notice required by Section 1.6 hereof, in the case of a Swing Loan,
Agent shall have received the notice required in Section 1.8 hereof, in
the case of the issuance of any Letter of Credit the Agent shall have
received a duly completed Application for such Letter of Credit together
with any fees called for by Section 2.1 hereof and, in the case of an
extension or increase in the amount of a Letter of Credit, a written
request therefor in a form acceptable to the Agent together with fees
called for by Section 2.1 hereof;
(b) each of the representations and warranties set forth in
Section 6 hereof shall be and remain true and correct as of such time,
except to the extent that any such representation or warranty relates
solely to an earlier time or that any change therein is not reasonably
likely to have a Material Adverse Effect;
(c) the Borrower shall be in compliance with all of the terms and
conditions hereof, and no Default or Event of Default shall have
occurred and be continuing hereunder or would occur as a result of such
Credit Event; and
(d) such Credit Event shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the issuance
of, increase in the amount of, or extension of the expiration date of, a Letter
of Credit shall be deemed to be a representation and warranty by the Borrower on
the date on such Credit Event as to the facts specified in subsections (a)
through (c), both inclusive, this Section 7.2.
Section 7.3. Existing Credit Agreement. (a) Pay-off Letters. The Agent
shall have received a pay-off and lien release letter from (i) in the case of
the Existing Harris Agreement, the existing creditors of the Borrower and its
Subsidiaries under the Existing Harris Agreement and (ii) in the case of the
Existing ITI Credit Agreement, the existing creditors of ITI Marketing and its
subsidiaries, each such letter setting forth, among other things, the total
amount of indebtedness outstanding and owing to them (or outstanding letters of
credit issued for the account of (i) in the case of the Existing Harris
Agreement, the Borrower or any of its Subsidiaries or (ii) in the case of the
Existing ITI Credit Agreement, ITI Marketing or any of its subsidiaries) and
containing an undertaking to cause to be delivered to the Agent each UCC
termination statement and any other lien release instrument necessary to release
their respective Lien on all assets of (i) in the case of the Existing Harris
Agreement, the Borrower and its Subsidiaries or (ii) in the case of the Existing
ITI Credit Agreement, ITI Marketing or any of its subsidiaries, which pay-off
and lien release letters shall be in form and substance acceptable to the Agent.
(b) Repayments. A portion of the proceeds of the initial Credit Event
shall be used to pay in full all outstanding (i) "Obligations" under the
Existing Harris Agreement and (ii) all Indebtedness for Borrowed Money under the
Existing ITI Credit Agreement. The Banks and the Borrower agree that
concurrently with such initial Credit Event, the Existing Harris Agreement shall
terminate and all "Obligations" outstanding thereunder shall be due and payable.
SECTION 8. COVENANTS.
The Borrower agrees that, so long as any Note or any L/C Obligation is
outstanding or any Commitment is available to or in use by the Borrower
hereunder, except to the extent compliance in any case or cases is waived in
writing by the Required Banks:
Section 8.1. Maintenance of Business. The Borrower shall, and shall
cause each Subsidiary to, preserve and maintain its existence, except as
otherwise provided in Section 8.10(c) hereof; provided, however, that nothing in
this Section shall prevent the Borrower from discontinuing the corporate
existence of any Non-Material Subsidiary if discontinuance of such Non-Material
Subsidiary is desirable in the conduct of the Borrower's business or the
business of any Subsidiary and such discontinuance is not disadvantageous in any
material respect to the Banks. The Borrower shall, and shall cause each
Subsidiary to, preserve and keep in force and effect all licenses, permits,
franchises, approvals, patents, trademarks, trade names, trade styles,
copyrights, and other proprietary rights necessary to the proper conduct of its
business where the failure to do so is reasonably likely to have a Material
Adverse Effect.
Section 8.2. Maintenance of Properties. The Borrower shall, and shall
cause each Subsidiary to, maintain, preserve and keep its property, plant and
equipment in good repair, working order and condition (ordinary wear and tear
excepted) and shall from time to time make all needful and proper repairs,
renewals, replacements, additions and betterments thereto so that at all times
the efficiency thereof shall be fully preserved and maintained, except to the
extent that, in the reasonable business judgment of such Person, any such
Property is no longer necessary for the proper conduct of the business of such
Person.
Section 8.3. Taxes and Assessments. The Borrower shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all taxes,
rates, assessments, fees and governmental charges upon or against it or its
Properties, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves are provided therefor.
Section 8.4. Insurance. The Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with insurance companies
with a general policyholder service rating of not less than A as rated in the
most current available Best's Insurance Report, all insurable Property owned by
it which is of a character usually insured by Persons similarly situated and
operating like Properties against loss or damage from such hazards and risks,
and in such amounts, as are insured by Persons similarly situated and operating
like Properties; and the Borrower shall insure, and shall cause each Subsidiary
to insure, such other hazards and risks (including professional liability,
employers' and public liability risks) with insurance companies with a general
policyholder service rating of not less than A as rated in the most current
available Best's Insurance Report as and to the extent usually insured by
Persons similarly situated and conducting similar businesses. The Borrower shall
in any event maintain, and cause each Subsidiary to maintain, insurance on the
Collateral to the extent required by the Collateral Documents. The Borrower
shall, upon the request of the Agent, furnish to the Agent and each Bank a
certificate setting forth in summary form the nature and extent of the insurance
maintained pursuant to this Section.
Section 8.5. Financial Reports. The Borrower shall, and shall cause each
Subsidiary to, maintain a standard system of accounting in accordance with GAAP
and shall furnish to the Agent, each Bank and each of their duly authorized
representatives such information respecting the business and financial condition
of the Borrower and each Subsidiary as the Agent or such Bank may reasonably
request; and without any request, shall furnish to the Agent and the Banks:
(a) as soon as available, and in any event within 45 days after
the close of each fiscal quarter of each fiscal year of the Borrower, a
copy of the consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as of the last day of such period and the
consolidated and consolidating statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for the fiscal
quarter and for the fiscal year-to-date period then ended, each in
reasonable detail showing in comparative form the figures for the
corresponding date and period in the previous fiscal year, prepared by
the Borrower in accordance with GAAP and certified to by the Borrower's
chief financial officer, or another officer of the Borrower reasonably
acceptable to the Agent;
(b) within forty-five (45) days after the end of each of the
first three quarterly fiscal periods of the Borrower, a copy of the
Borrower's Form 10-Q Report filed with the Securities and Exchange
Commission;
(c) within ninety (90) days after the end of each fiscal year of
the Borrower, a copy of the Borrower's Form 10-K Report filed with the
Securities and Exchange Commission, including a copy of the audited
financial statements of the Borrower and the Subsidiaries for such year
with the accompanying report of independent public accountants;
(d) as soon as available, and in any event within 90 days after
the close of each fiscal year of the Borrower, to the extent not
contained in the Borrower's Form 10-K Report filed with the Securities
and Exchange Commission for such year, a copy of the consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of
the last day of the period then ended and the consolidated and
consolidating statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for the period then ended, and
accompanying notes thereto, each in reasonable detail showing in
comparative form the figures for the previous fiscal year, accompanied
in the case of the Borrower's consolidated financial statements by an
unqualified opinion of Arthur Andersen LLP or another firm of
independent public accountants of recognized national standing, selected
by the Borrower and reasonably satisfactory to the Required Banks, to
the effect that the consolidated financial statements have been prepared
in accordance with GAAP and present fairly, in all material respects, in
accordance with GAAP the consolidated financial condition of the
Borrower and its Subsidiaries as of the close of such fiscal year and
the results of their operations and cash flows for the fiscal year then
ended and that an examination of such accounts in connection with such
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, such audit provided a reasonable
basis for their opinion;
(e) promptly after the sending or filing thereof, copies of each
financial statement, report, notice or proxy statement sent by the
Borrower or any Subsidiary to its stockholders, and copies of each
regular, periodic or special report, registration statement or
prospectus (including all Form 10-K, Form 10-Q, and Form 8-K reports and
proxy statements) filed by the Borrower or any Subsidiary with any
securities exchange or the Securities and Exchange Commission or any
successor agency;
(f) promptly after receipt thereof, a copy of each audit made by
any regulatory agency of the books and records of the Borrower or any
Subsidiary or of any notice of material noncompliance with any
applicable law, regulation, or guideline relating to the Borrower or any
Subsidiary or any of their respective businesses;
(g) as soon as available, and in any event within 90 days prior
to the end of each fiscal year of the Borrower, a copy of the Borrower's
consolidated and consolidating business plan for the following fiscal
year, such business plan to show the Borrower's projected consolidated
and consolidating revenues, expenses, and balance sheet on
month-by-month basis, such business plan to be in reasonable detail
prepared by the Borrower and in form reasonably satisfactory to the
Agent which shall include a summary of all assumptions made in preparing
such business plan;
(h) notice of any Change of Control; and
(i) promptly after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice of
any threatened or pending litigation or governmental proceeding or labor
controversy against the Borrower or any Subsidiary which, if adversely
determined, is reasonably likely to have a Material Adverse Effect or of
the occurrence of any Default or Event of Default hereunder.
Each of the financial statements furnished to the Banks pursuant to subsections
(a) and (d) of this Section 8.5 shall be accompanied by a written certificate in
the form attached hereto as Exhibit F signed by the President, Chief Executive
Officer, Chief Financial Office or Senior Vice President-Finance of the
Borrower, to the effect that to the best of such officer's knowledge and belief
no Default or Event of Default has occurred during the period covered by such
statements or, if any such Default or Event of Default has occurred during such
period, setting forth a description of such Default or Event of Default and
specifying the action, if any, taken by the Borrower or any Subsidiary to remedy
the same. Such certificate shall also set forth the calculations supporting such
statements in respect of Sections 8.22, 8.23, 8.24 and 8.25 of this Agreement.
Section 8.6. Inspection. The Borrower shall, and shall cause each
Subsidiary to, permit the Agent, each Bank and each of their duly authorized
representatives and agents to visit and inspect any of its Properties, corporate
books and financial records, to examine and make copies of its books of accounts
and other financial records, and to discuss its affairs, finances and accounts
with, and to be advised as to the same by, its officers, employees and
independent public accountants (and by this provision the Borrower hereby
authorizes such accountants to discuss with the Agent and such Banks the
finances and affairs of the Borrower and each Subsidiary) at such reasonable
times and intervals as the Agent or any such Bank may designate.
Section 8.7. Indebtedness for Borrowed Money. The Borrower shall not,
nor shall it permit any Subsidiary to, issue, incur, assume, create or have
outstanding any Indebtedness for Borrowed Money; provided, however, that the
foregoing shall not restrict nor operate to prevent:
(a) the Obligations of the Borrower owing to the Agent
and the Banks hereunder;
(b) purchase money indebtedness and Capitalized Lease Obligations
of the Borrower and of its Subsidiaries in an aggregate amount not to
exceed $10,000,000 at any one time outstanding;
(c) obligations of the Borrower arising out of interest rate
hedging agreements entered into with financial institutions in the
ordinary course of business;
(d) guaranties expressly permitted by Section 8.9 hereof;
(e) indebtedness from time to time owing by the Borrower to any
Subsidiary or by any Subsidiary to the Borrower or any other Subsidiary,
in each case arising as a result of intercompany loans and advances
permitted by Section 8.9 hereof.
(f) indebtedness outstanding under the Existing Credit Agreement
which is paid and satisfied in full out of proceeds of the initial
Credit Event hereunder;
(g) other indebtedness existing on the date of this Agreement and
described on Schedule 8.7 attached hereto and made a part hereof, as
reduced from time to time by repayments thereof; and
(h) other indebtedness of the Borrower and its Subsidiaries not
otherwise permitted by this Section in an aggregate amount not to exceed
$1,000,000 at any one time outstanding.
Section 8.8. Liens. The Borrower shall not, nor shall it permit any
other Subsidiary to, create, incur or permit to exist any Lien of any kind on
any Property owned by any such Person; provided, however, that the foregoing
shall not apply to nor operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith cash deposits in connection with tenders, contracts
or leases to which the Borrower or any Subsidiary is a party or other
cash deposits required to be made in the ordinary course of business,
provided in each case that the obligation is not for borrowed money and
that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor;
(b) mechanics', workmen's, materialmen's, landlords', carriers',
or other similar Liens arising in the ordinary course of business with
respect to obligations which are not due or which are being contested in
good faith by appropriate proceedings which prevent enforcement of the
matter under contest;
(c) the pledge of assets for the purpose of securing an appeal,
stay or discharge in the course of any legal proceeding, provided that
the aggregate amount of liabilities of the Borrower and its Subsidiaries
secured by a pledge of assets permitted under this subsection, including
interest and penalties thereon, if any, shall not be in excess of
$2,500,000 at any one time outstanding;
(d) the Liens granted in favor of the Agent for the benefit of
the Agent and the Banks pursuant to the Collateral Documents;
(e) Liens on property of the Borrower or any Subsidiary created
solely for the purpose of securing indebtedness permitted by Section
8.7(b) hereof, representing or incurred to finance, refinance or refund
the purchase price of Property, provided that no such Lien shall extend
to or cover other Property of the Borrower or such Subsidiary other than
the respective Property so acquired, and the principal amount of
indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such Property;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not materially
detract from the value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or
any Subsidiary;
(g) Liens described on Schedule 8.8 hereof; and
(h) any interest or title of a lessor under any operating lease.
Section 8.9. Investments, Acquisitions, Loans, Advances and Guaranties.
The Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances (other
than for travel advances and other similar cash advances made to employees in
the ordinary course of business) to, any other Person, or acquire all or any
substantial part of the assets or business of any other Person or division
thereof, or be or become liable as endorser, guarantor, surety or otherwise for
any debt, obligation or undertaking of any other Person, or otherwise agree to
provide funds for payment of the obligations of another, or supply funds thereto
or invest therein or otherwise assure a creditor of another against loss, or
apply for or become liable to the issuer of a letter of credit which supports an
obligation of another, or subordinate any claim or demand it may have to the
claim or demand of any other Person; provided, however, that the foregoing shall
not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America, provided that any such obligations shall mature within one year
of the date of issuance thereof;
(b) investments in commercial paper rated at least P-1 by Moody's
and at least A-1 by S&P maturing within one year of the date of issuance
thereof;
(c) investments in certificates of deposit issued by any Bank or
by any United States commercial bank having capital and surplus of not
less than $100,000,000 which have a maturity of one year or less;
(d) endorsement of items for deposit or collection of commercial
paper received in the ordinary course of business;
(e) guaranties issued by the Borrower guaranteeing or otherwise
supporting the repayment of indebtedness of a Subsidiary otherwise
permitted by Section 8.7 hereof;
(f) trade receivables from time to time owing to the Borrower or
any Subsidiary created or acquired in the ordinary course of its
business;
(g) guaranties by the Borrower or any Subsidiary of the
obligations of any other Subsidiary, as lessee, under any real estate
leases entered into in the ordinary course of its business;
(h) approximate present equity investments in Subsidiaries
described on Schedule 8.9 hereof;
(i) loans by the Borrower to, or other investments by the
Borrower in, any one or more Subsidiaries in the ordinary course of the
Borrower's business not otherwise permitted by this Section aggregating
not more than $25,000,000 at any one time outstanding;
(j) loans by any one or more Subsidiaries to the Borrower in the
ordinary course of such Subsidiaries' business not otherwise permitted
by this Section aggregating not more than $5,000,000 at any one time
outstanding;
(k) loans by any one or more Subsidiaries to, or other
investments by any one or more Subsidiaries in, any one or more other
Subsidiaries in the ordinary course of such lending or investing
Subsidiaries' business not otherwise permitted by this Section
aggregating not more than $500,000 at any one time outstanding;
(l) the ITI Marketing Acquisition;
(m) Acquisitions, so long as (i) no Default or Event of Default
exists or would exist after giving effect to such acquisition, (ii) the
Acquisition is not a Hostile Acquisition, (iii) the Acquired Business is
in an Eligible Line of Business, (iv) the Borrower shall have delivered
to the Banks an updated Schedule 6.2 to reflect any new Subsidiary
resulting from such Acquisition, (iv) the Total Consideration expended
by the Borrower and its Subsidiaries as consideration for such
Acquisition (A) does not aggregate more the $25,000,000 unless consented
to in writing by the Required Banks (which consent shall not be
unreasonably withheld), and (B) when taken together with the aggregate
Total Consideration expended on a cumulative basis after the date hereof
for all other Acquisitions permitted under this Section 8.9(m) does not
aggregate more than $50,000,000, (v) the Borrower can demonstrate that
on a pro forma basis (including financial projections for the twelve
months following the subject Acquisition) after giving effect to the
subject Acquisition it will continue to comply with all the terms and
conditions of the Loan Documents, and (vi) the Borrower has provided to
the Banks financial statements of the Person whose assets or Voting
Stock is being so acquired, including historical financial statements,
and a description of such Person and its business;
(n) the Guaranties; and
(o) other investments, loans, advances and guaranties not
otherwise permitted by this Section aggregating not more than $1,000,000
at any one time outstanding.
In determining the amount of investments, acquisitions, loans, advances and
guaranties permitted under this Section, investments and acquisitions shall
always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and guaranties shall be taken at
the amount of the obligations guaranteed thereby.
Section 8.10. Mergers, Consolidations and Sales. The Borrower shall not,
nor shall it permit any Subsidiary to, be a party to any merger or
consolidation, or sell, transfer, lease or otherwise dispose of its Property,
including any disposition of Property as part of a sale and leaseback
transaction, or in any event sell or discount (with or without recourse) any of
its notes or accounts receivable; provided, however, that this Section shall not
apply to nor operate to prevent:
(a) the sale or lease of inventory in the ordinary course of
business;
(b) the sale, transfer, lease, or other disposition of Property
of the Borrower or any Subsidiary to one another in the ordinary course
of its business;
(c) any Subsidiary (including any corporation which immediately
after giving effect to an Acquisition permitted by Section 8.9(m) hereof
becomes a Subsidiary, but in any event excluding any Foreign Subsidiary)
may merge or consolidate with or into the Borrower or any Wholly-Owned
Subsidiary; provided that in the case of any merger or consolidation
involving the Borrower, the Borrower is the corporation surviving the
merger and in the case of any other merger involving a Wholly-owned
Subsidiary, such Wholly-owned Subsidiary is the corporation surviving
such merger;
(d) the sale of delinquent notes or accounts receivable in the
ordinary course of business for purposes of collection only (and not for
the purpose of any bulk sale or securitization transaction);
(e) the sale, transfer, or other disposition of any tangible
personal property that, in the reasonable business judgment of the
Borrower or its Subsidiary, has become uneconomical, obsolete, or worn
out, and which is disposed of in the ordinary course of business; and
(f) the sale, transfer, lease, or other disposition of Property
of the Borrower or any Subsidiary aggregating for the Borrower and its
Subsidiaries during any 12-month period not more than 10% of Total
Assets as of the close of the then most recent fiscal year-end of the
Borrower;
In the event of any merger permitted by Section 8.10(c) above, the Borrower
shall give the Agent and the Banks prior written notice of any such event and,
immediately after giving effect to any such merger, Schedule 6.2 of this
Agreement shall be deemed amended excluding reference to any such Subsidiary
merged out of existence. So long as no Default or Event of Default has occurred
and is continuing or would arise as a result thereof, upon the written request
of the Borrower, the Agent shall release its Lien on any Property sold pursuant
to the provisions of subsections (a), (d), (e) or (f) above.
Section 8.11. Maintenance of Subsidiaries. The Borrower shall not assign,
sell or transfer, nor shall it permit any Subsidiary to issue, assign, sell or
transfer, any shares of capital stock of a Material Subsidiary; provided,
however, that the foregoing shall not operate to prevent (i) the Lien on the
capital stock of each Subsidiary granted to the Agent pursuant to the Collateral
Documents, (ii) the issuance, sale and transfer to any person of any shares of
capital stock of a Subsidiary solely for the purpose of qualifying, and to the
extent legally necessary to qualify, such person as a director of such
Subsidiary, and (iii) any transaction permitted by Section 8.10(c) above.
Section 8.12. Dividends and Certain Other Restricted Payments. The
Borrower shall not, nor shall it permit any Subsidiary to, (i) declare or pay
any dividends on or make any other distributions in respect of any class or
series of its capital stock (other than dividends payable solely in its capital
stock) or (ii) directly or indirectly purchase, redeem or otherwise acquire or
retire any of its capital stock or (iii) prepay any Indebtedness for Borrowed
Money (other than the prepayment of the Loans and L/C Obligations in accordance
with Section 1.11 hereof and the effecting of any redemption of such Loans)
(such non-excepted dividends, distributions, purchases, redemptions,
acquisitions, prepayments and retirements being hereinafter collectively called
"Restricted Payments"); provided, however, that the foregoing shall not apply to
or operate to prevent any Restricted Payments made in any fiscal year of the
Borrower if and to the extent that at the time such Restricted Payment is made
and after giving effect thereto, (i) no Default or Event of Default shall occur
or be continuing, (ii) the aggregate amount of all Restricted Payments (other
than the Permitted Shareholder Redemptions) made during such fiscal year does
not exceed twenty percent (20%) of the Borrower's Net Income for such fiscal
year to date and (iii) the aggregate cumulative amount of all Restricted
Payments made on and after the date hereof does not exceed $25,000,000.
Section 8.13. ERISA. The Borrower shall, and shall cause each Subsidiary
to, promptly pay and discharge all obligations and liabilities arising under
ERISA pertaining to a Plan of a character which if unpaid or unperformed is
reasonably likely to result in the imposition of a Lien against any of its
Properties. The Borrower shall, and shall cause each Subsidiary to, promptly
notify the Agent of (i) the occurrence of any reportable event (as defined in
ERISA) with respect to a Plan, (ii) receipt of any notice from the PBGC of its
intention to seek termination of any Plan or appointment of a trustee therefor,
(iii) its intention to terminate or withdraw from any Plan, and (iv) the
occurrence of any event with respect to any Plan which would result in the
incurrence by the Borrower or any Subsidiary of any material liability, fine or
penalty, or any material increase in the contingent liability of the Borrower or
any Subsidiary with respect to any post-retirement Welfare Plan benefit.
Section 8.14. Compliance with Laws. The Borrower shall, and shall cause
each Subsidiary to, comply in all respects with the requirements of all federal,
state and local laws, rules, regulations, ordinances and orders applicable to or
pertaining to its Properties or business operations, where any such
non-compliance, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect or is reasonably likely to result in a Lien upon any of
their Property.
Section 8.15. Burdensome Contracts With Affiliates. The Borrower shall
not, nor shall it permit any Subsidiary to, enter into any material contract,
agreement or business arrangement with any of its Affiliates on terms and
conditions which are less favorable to the Borrower or such Subsidiary than
would be usual and customary in similar contracts, agreements or business
arrangements between Persons not affiliated with each other.
Section 8.16. No Changes in Fiscal Year. The Borrower shall not change
its fiscal year from its present basis without the prior written consent of the
Required Banks.
Section 8.17. Formation of Subsidiaries. Promptly upon the formation or
acquisition of any Subsidiary, the Borrower shall provide the Agent and the
Banks written notice thereof and shall do such acts and things as are required
of it to comply with Section 4 hereof, and then and thereafter Schedule 6.2 of
this Agreement shall be deemed amended from and after such date to include
reference to any such Subsidiary.
Section 8.18. Change in the Nature of Business. The Borrower shall not,
nor shall it permit any Subsidiary to, engage in any business or activity if as
a result the general nature of the business of the Borrower or any Subsidiary
would be changed in any material respect from the general nature of the business
engaged in by it as of the date of this Agreement or as of the date such Person
becomes a Subsidiary hereunder.
Section 8.19. Use of Loan Proceeds. The Borrower shall use the
credit extended under this Agreement solely for the purposes set forth
in, or otherwise permitted by, Section 6.4 hereof.
Section 8.20. No Restrictions on Subsidiary Distributions. Except as
provided herein, the Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of the Borrower or any Subsidiary to: (a) guarantee the Obligations and grant
Liens on its assets to the Agent for the benefit of the Banks as required by
Section 4 hereof; (b) in the case of any Subsidiary, pay dividends or make any
other distribution on any of such Subsidiary's capital stock or other equity
interests owned by the Borrower or any Subsidiary; (c) pay any indebtedness owed
to the Borrower or any Subsidiary; (d) make loans or advances to the Borrower or
any Subsidiary; or (e) transfer any of its property or assets to the Borrower or
any Subsidiary.
Section 8.21. Subordinated Debt. The Borrower shall not, nor shall it
permit any Subsidiary to, amend or modify any of the terms and conditions
relating to any Subordinated Debt or make any voluntary prepayment or
acquisition thereof or effect any voluntary redemption thereof or make any
payment on account of Subordinated Debt which is prohibited under the terms of
any instrument or agreement subordinating the same to the Obligations.
Section 8.22. Total Debt Ratio. As of the last day of each fiscal quarter
of the Borrower occurring during one of the periods specified below, the
Borrower shall not permit the Total Debt Ratio as of the last day of the
relevant fiscal quarter to be greater than or equal to the amount set forth
below:
TOTAL DEBT
FROM AND INCLUDING TO AND INCLUDING RATIO SHALL NOT BE GREATER THAN OR
EQUAL TO
the date hereof 6/30/1999 3.00 to 1.0
7/1/1999 6/30/2000 2.75 to 1.0
7/1/2000 6/30/2001 2.50 to 1.0
7/1/2001 6/30/2002 2.25 to 1.0
7/1/2002 6/30/2003 2.00 to 1.0
Section 8.23. Net Worth. The Borrower shall, as of the last day of each
fiscal quarter at all times, maintain Net Worth of not less than the Minimum
Required Amount. For purposes hereof, the term "Minimum Required Amount" shall
mean $115,000,000 and shall increase (but never decrease) as of the last day of
each fiscal quarter of the Borrower thereafter by an amount (if positive) equal
to 80% of Net Income for the fiscal quarter then ended.
Section 8.24. Fixed Charge Coverage Ratio. As of the last day of each
fiscal quarter of the Borrower, the Borrower shall maintain a ratio of (a)
Adjusted EBITDA for the four fiscal quarters of the Borrower then ended less
Capital Expenditures incurred during such period to (b) Fixed Charges for the
same four fiscal quarter period then ended, of not less than 1.50 to 1.0.
Section 8.25. Minimum Adjusted EBITDA. As of the last day of each fiscal
quarter of the Borrower occurring during one of the periods below, the Borrower
shall maintain Adjusted EBITDA at not less than the amount set forth below:
ADJUSTED EBITDA SHALL NOT BE LESS THAN
FROM AND INCLUDING TO AND INCLUDING
the date hereof 6/30/2000 $65,000,000
7/1/2000 6/30/2003 $70,000,000
Section 8.26. Operating Leases. The Borrower shall not, nor shall it
permit any Subsidiary to, acquire the use or possession of any Property under a
lease or similar arrangement, whether or not the Borrower or any Subsidiary has
the express or implied right to acquire title to or purchase such Property, at
any time if, after giving effect thereto, the aggregate amount of fixed rentals
and other consideration payable by the Borrower and its Subsidiaries under all
such leases and similar arrangements would exceed $25,000,000 during any fiscal
year of the Borrower. Capital Leases shall not be included in computing
compliance with this Section to the extent the Borrower's and its Subsidiaries'
liability in respect of the same is permitted by this Section.
Section 8.27. Interest Rate Protection. On or before the date hereof, the
Borrower will hedge its interest rate risk on at least $100,000,000 in principal
amount of the Term Loans, or if less, the principal amount outstanding on the
Term Loans, through the use of one or more interest rate swaps, interest rate
caps, interest rate collars or other recognized interest rate hedging
arrangements (collectively, "Hedging Arrangements"), with all of the foregoing
to effectively limit the amount of interest that the Borrower must pay on
notional amounts of not less than such portion of the Term Loans to not more
than a rate acceptable to the Agent in its discretion for a period ending no
earlier than June 1, 2001 and to be with the Banks, their respective Affiliates
or with other parties reasonably acceptable to the Required Banks. If the
Borrower enters into any Hedging Arrangements with any Bank, the Borrower's
obligations to such Bank in connection with such Hedging Arrangements do not
constitute usage of the Commitments of such Bank.
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.
Section 9.1. Events of Default. Any one or more of the following
shall constitute an "Event of Default" hereunder:
(a) (i) default in the payment when due of all or any part of the
principal of any Note or Reimbursement Obligation (whether at the stated
maturity thereof or at any other time provided for in this Agreement),
or (ii) default for 3 days in the payment when due of all or any part of
the interest on any Note (whether at the stated maturity thereof or at
any other time provided for in this Agreement) of any Reimbursement
Obligation or of any fee or other Obligation payable hereunder or under
any other Loan Document;
(b) default in the observance or performance of any covenant set
forth in Sections 8.5, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.19, 8.21,
8.22, 8.23, 8.24, 8.25 or 8.26 hereof or of any provision in any Loan
Document dealing with the use, disposition or remittance of the proceeds
of Collateral or requiring the maintenance of insurance thereon;
(c) default in the observance or performance of any other
provision hereof or of any other Loan Document which is not remedied
within 30 days after the earlier of (i) the date on which such failure
shall first become known to any responsible officer of the Borrower or
(ii) written notice thereof is given to the Borrower by the Agent;
(d) any representation or warranty made herein or in any other
Loan Document or in any certificate furnished to the Agent or the Banks
pursuant hereto or thereto or in connection with any transaction
contemplated hereby or thereby proves untrue in any material respect as
of the date of the issuance or making or deemed making thereof;
(e) any event occurs or condition exists (other than those
described in subsections (a) through (d) above) which is specified as an
event of default under any of the other Loan Documents, or any of the
Loan Documents shall for any reason not be or shall cease to be in full
force and effect or is declared to be null and void, or any of the
Collateral Documents shall for any reason fail to create a valid and
perfected first priority Lien in favor of the Agent in any Collateral
purported to be covered thereby (except as expressly permitted by the
terms thereof or an inadvertent failure to maintain such a Lien on
Collateral aggregating less than $500,000 in value), or any Subsidiary
takes any action for the purpose of terminating, repudiating or
rescinding any Loan Document executed by it or any of its obligations
thereunder;
(f) default shall occur under any Indebtedness for Borrowed Money
aggregating in excess of $1,000,000 issued, assumed or guaranteed by the
Borrower or any Subsidiary, or under any indenture, agreement or other
instrument under which the same may be issued, and such default shall
continue for a period of time sufficient to permit the acceleration of
the maturity of any such Indebtedness for Borrowed Money (whether or not
such maturity is in fact accelerated), or any such Indebtedness for
Borrowed Money shall not be paid when due (whether by demand, lapse of
time, acceleration or otherwise);
(g) any judgment or judgments, writ or writs or warrant or
warrants of attachment, or any similar process or processes in an
aggregate amount in excess of $2,500,000 in excess of any applicable
insurance coverage shall be entered or filed against the Borrower or any
Subsidiary, or against any of its Property, and which remains
undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) the Borrower or any Subsidiary, or any member of its
Controlled Group, shall fail to pay when due an amount or amounts
aggregating in excess of $1,000,000 which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans having aggregate Unfunded Vested
Liabilities in excess of $1,000,000 (collectively, a "Material Plan")
shall be filed under Title IV of ERISA by the Borrower or any
Subsidiary, or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the
Borrower or any Subsidiary, or any member of its Controlled Group, to
enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not
have been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
(i) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its Property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy Code,
as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i) through (v) above, or (vii) fail to contest in
good faith any appointment or proceeding described in Section 9.1(j)
hereof; or
(j) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Subsidiary
or any substantial part of any of its Property, or a proceeding
described in Section 9.1(i) (v) shall be instituted against the Borrower
or any Subsidiary, and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 30 days.
Section 9.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsection (i) or (j) of Section 9.1 hereof has occurred
and is continuing, the Agent shall, by written notice to the Borrower: (a) if so
directed by the Required Banks, terminate the remaining Commitments and all
other obligations of the Banks hereunder on the date stated in such notice
(which may be the date thereof); (b) if so directed by the Required Banks,
declare the principal of and the accrued interest on all outstanding Notes to be
forthwith due and payable and thereupon all outstanding Notes, including both
principal and interest thereon, shall be and become immediately due and payable
together with all other amounts payable under the Loan Documents without further
demand, presentment, protest or notice of any kind; and (c) if so directed by
the Required Banks, demand that the Borrower immediately pay to the Agent the
full amount then available for drawing under each or any Letter of Credit, and
the Borrower agrees to immediately make such payment and acknowledges and agrees
that the Banks would not have an adequate remedy at law for failure by the
Borrower to honor any such demand and that the Agent, for the benefit of the
Banks, shall have the right to require the Borrower to specifically perform such
undertaking whether or not any drawings or other demands for payment have been
made under any Letter of Credit. The Agent, after giving notice to the Borrower
pursuant to Section 9.1(c) or this Section 9.2, shall also promptly send a copy
of such notice to the other Banks, but the failure to do so shall not impair or
annul the effect of such notice.
Section 9.3. Bankruptcy Defaults. When any Event of Default described in
subsections (i) or (j) of Section 9.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent the full amount then
available for drawing under all outstanding Letters of Credit, the Borrower
acknowledging and agreeing that the Banks would not have an adequate remedy at
law for failure by the Borrower to honor any such demand and that the Banks, and
the Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands
for payment have been made under any of the Letters of Credit.
Section 9.4. Collateral for Undrawn Letters of Credit. (a) If the
prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 1.11(b) or under Section 9.2 or 9.3
above, the Borrower shall forthwith pay the amount required to be so prepaid, to
be held by the Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a), together with
amounts deposited with the Agent pursuant to Section 1.11(b)(iii) hereof, above
shall be held by the Agent in a separate collateral account (such account, and
the credit balances, properties and any investments from time to time held
therein, and any substitutions for such account, any certificate of deposit or
other instrument evidencing any of the foregoing and all proceeds of and
earnings on any of the foregoing being collectively called the "Account") as
security for, and for application by the Agent (to the extent available) to, the
reimbursement of any payment under any Letter of Credit then or thereafter made
by the Agent, and to the payment of the unpaid balance of any Loans and all
other Obligations. The Account shall be held in the name of and subject to the
exclusive dominion and control of the Agent for the benefit of the Agent and the
Banks. If and when requested by the Borrower, the Agent shall invest funds held
in the Account from time to time in direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America with a remaining maturity of one year or less, provided that
the Agent is irrevocably authorized to sell investments held in the Account when
and as required to make payments out of the Account for application to amounts
due and owing from the Borrower to the Agent or Banks; provided, however, that
if (i) the Borrower shall have made payment of all such obligations referred to
in subsection (a) above, (ii) all relevant preference or other disgorgement
periods relating to the receipt of such payments have passed, and (iii) no
Letters of Credit, Commitments, Loans or other Obligations remain outstanding
hereunder, then the Agent shall release to the Borrower any remaining amounts
held in the Account.
Section 9.5. Notice of Default. The Agent shall give notice to the
Borrower under Section 9.1(c) hereof promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
Section 9.6. Expenses. The Borrower agrees to pay to the Agent and each
Bank, and any other holder of any Note outstanding hereunder, all expenses
reasonably incurred or paid by the Agent and such Bank or any such holder,
including reasonable attorneys' fees and court costs, in connection with any
Default or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the Loan Documents.
SECTION 10. CHANGE IN CIRCUMSTANCES.
Section 10.1. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time any change after the date hereof in
applicable law or any change after the date hereof in the interpretation or
administration thereof of any of the foregoing by any governmental authority,
central bank or comparable agency having jurisdiction, over such Bank or its
lending branch or the Eurodollar Loans contemplated by this Agreement (whether
or not having the force of law) makes it unlawful for any Bank to make or
continue to maintain any Eurodollar Loans or to perform its obligations as
contemplated hereby, such Bank shall promptly give notice thereof to the
Borrower and such Bank's obligations to make or maintain Eurodollar Loans under
this Agreement shall be suspended until it is no longer unlawful for such Bank
to make or maintain Eurodollar Loans. The Borrower shall, within 5 days (or
sooner if applicable law so requires) after written demand from the affected
Bank or the Agent, prepay on demand the outstanding principal amount of any such
affected Eurodollar Loans, together with all interest accrued thereon and all
other amounts then due and payable to such Bank under this Agreement; provided,
however, subject to all of the terms and conditions of this Agreement, the
Borrower may then elect to borrow the principal amount of the affected
Eurodollar Loans from such Bank by means of Base Rate Loans from such Bank,
which Base Rate Loans shall not be made ratably by the Banks but only from such
affected Bank and provided, further, that the Borrower shall have no obligation
under Section 1.13 with respect to any such prepayment.
Section 10.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurodollar Loans:
(a) the Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to it in the interbank
eurodollar market for such Interest Period, or that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) the Required Banks advise the Agent that (i) LIBOR as
determined by the Agent will not adequately and fairly reflect the cost
to such Banks of funding their Eurodollar Loans for such Interest Period
or (ii) that the making or funding of Eurodollar Loans become
impracticable,
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make Eurodollar Loans shall be suspended.
Section 10.3. Increased Cost and Reduced Return. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Fixed Rate Loans, its Notes,
its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligations owed to it or its obligation to make Fixed
Rate Loans, issue a Letter of Credit, or to participate therein, or
shall change the basis of taxation of payments to any Bank (or its
Lending Office) of the principal of or interest on its Fixed Rate Loans,
Letter(s) of Credit, or participations therein or any other amounts due
under this Agreement or any other Loan Document in respect of its Fixed
Rate Loans, Letter(s) of Credit, any participation therein, any
Reimbursement Obligations owed to it, or its obligation to make Fixed
Rate Loans, or issue a Letter of Credit, or acquire participations
therein (except for changes in the rate of tax on the overall net income
of such Bank or its Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Fixed Rate Loans any such
requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office) or shall impose on any
Bank (or its Lending Office) or on the interbank market any other
condition affecting its Fixed Rate Loans, its Notes, its Letter(s) of
Credit, or its participation in any thereof, any Reimbursement
Obligation owed to it, or its obligation to make Fixed Rate Loans, or to
issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under any other Loan Document with respect thereto, by
an amount deemed by such Bank to be material, then, within 60 days after written
demand by such Bank (with a copy to the Agent), the Borrower shall be obligated
to pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction; provided, however, that the Borrower
shall not be obligated to pay any such amount or amounts to the extent such
additional cost or payment was incurred or paid by such Bank more than ninety
(90) days prior to the date of the delivery of the certificate referred to in
the immediately following sentence (nothing herein to impair or otherwise affect
the Borrower's liability hereunder for costs or payments subsequently incurred
or paid by such Bank). If a Bank makes such a claim for compensation, it shall
provide to the Borrower (with a copy to the Agent) substantially concurrently
with such demand a certificate setting forth the computation of the increased
cost or reduced amount as a result of any event mentioned herein in reasonable
detail and such certificate shall be conclusive if reasonably determined.
(b) If, after the date hereof, any Bank or the Agent shall have
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Lending Office) with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has had the effect of reducing the rate of
return on such Bank's capital as a consequence of its obligations hereunder to a
level below that which such Bank could have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within 30 days after written demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction; provided, however,
that the Borrower shall not be obligated to compensate such Bank to the extent
its rate of return was so reduced more than ninety (90) days prior to the date
of such demand (nothing herein to impair or otherwise affect the Borrower's
liability hereunder to compensate for subsequent reductions in such Bank's rate
of return).
(c) A certificate of a Bank claiming compensation under this Section
10.3 and setting forth the additional amount or amounts to be paid to it
hereunder shall be prima facie correct. In determining such amount, such Bank
may use any reasonable averaging and attribution methods.
Section 10.4. Lending Offices. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a written notice to the
Borrower and the Agent.
Section 10.5. Discretion of Bank as to Manner of Funding. Notwithstanding
any other provision of this Agreement, each Bank shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder with respect to Eurodollar Loans shall be made as if
each Bank had actually funded and maintained each Eurodollar Loan through the
purchase of deposits in the interbank eurodollar market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate equal
to LIBOR for such Interest Period.
Section 10.6. Bank's Duty to Mitigate. Each Bank agrees that, as promptly
as practicable after it becomes aware of the occurrence of an event or the
existence of a condition that would cause it to be affected under Section 10.1,
10.2 or 10.3 hereof, such Bank will, after notice to the Borrower, to the extent
not inconsistent with such Bank's internal policies and customary business
practices, use its best efforts to make, fund or maintain the affected Fixed
Rate Loan through another lending office of such Bank if as a result thereof the
unlawfulness which would otherwise require payment of such Loan pursuant to
Section 10.1 hereof would cease to exist or the circumstances which would
otherwise terminate such Bank's obligation to make such Loan under Section 10.2
hereof would cease to exist or the increased costs which would otherwise be
required to be paid in respect of such Loan pursuant to Section 10.3 hereof
would be materially reduced, and if, as determined by such Bank, in its sole
discretion, the making, funding or maintaining of such Loan through such other
lending office would not otherwise adversely affect such Loan or such Bank. The
Borrower hereby agrees to pay all reasonable expenses incurred by each such Bank
in utilizing another lending office pursuant to this Section 10.6.
SECTION 11. THE AGENT AND ISSUING BANK.
Section 11.1. Appointment and Authorization of Agent. Each Bank hereby
appoints Harris Trust and Savings Bank as the Agent under the Loan Documents and
hereby authorizes the Agent to take such action as Agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto. The Banks expressly agree that the Agent is not acting as a fiduciary
of the Banks in respect of the Loan Documents, the Borrower or otherwise, and
nothing herein or in any of the other Loan Documents shall result in any duties
or obligations on the Agent or any of the Banks except as expressly set forth
herein.
Section 11.2. Agent and its Affiliates. The Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any other
Bank and may exercise or refrain from exercising such rights and power as though
it were not the Agent, and the Agent and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Affiliate of the Borrower as if it were not the Agent under the
Loan Documents. The term "Bank" as used herein and in all other Loan Documents,
unless the context otherwise clearly requires, includes the Agent in its
individual capacity as a Bank. References in Section 1 hereof to the Agent's
Loans, or to the amount owing to the Agent for which an interest rate is being
determined, refer to the Agent in its individual capacity as a Bank.
Section 11.3. Action by Agent. If the Agent receives from the Borrower a
written notice of an Event of Default pursuant to Section 8.5 hereof, the Agent
shall promptly give each of the Banks written notice thereof. The obligations of
the Agent under the Loan Documents are only those expressly set forth therein.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action hereunder with respect to any Default or Event of
Default, except as expressly provided in Sections 9.2, 9.3 and 9.5. Upon the
occurrence of an Event of Default, the Agent shall take such action to enforce
its Lien on the Collateral and to preserve and protect the Collateral as may be
directed by the Required Banks. Unless and until the Required Banks give such
direction, the Agent may (but shall not be obligated to) take or refrain from
taking such actions as it deems appropriate and in the best interest of all the
Banks. In no event, however, shall the Agent be required to take any action in
violation of applicable law or of any provision of any Loan Document, and the
Agent shall in all cases be fully justified in failing or refusing to act
hereunder or under any other Loan Document unless it first receives any further
assurances of its indemnification from the Banks that it may require, including
prepayment of any related expenses and any other protection it requires against
any and all costs, expense, and liability which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall be entitled to
assume that no Default or Event of Default exists unless notified in writing to
the contrary by a Bank or the Borrower. In all cases in which the Loan Documents
do not require the Agent to take specific action, the Agent shall be fully
justified in using its discretion in failing to take or in taking any action
thereunder. Any instructions of the Required Banks, or of any other group of
Banks called for under the specific provisions of the Loan Documents, shall be
binding upon all the Banks and the holders of the Obligations.
Section 11.4. Consultation with Experts. The Agent may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
Section 11.5. Liability of Agent; Credit Decision. Neither the Agent nor
any of its directors, officers, agents, or employees shall be liable for any
action taken or not taken by it in connection with the Loan Documents: (i) with
the consent or at the request of the Required Banks or (ii) in the absence of
its own gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify: (i) any statement, warranty or
representation made in connection with this Agreement, any other Loan Document
or any Credit Event; (ii) the performance or observance of any of the covenants
or agreements of the Borrower or any Subsidiary contained herein or in any other
Loan Document; (iii) the satisfaction of any condition specified in Section 7
hereof, except receipt of items required to be delivered to the Agent; or (iv)
the validity, effectiveness, genuineness, enforceability, perfection, value,
worth or collectibility hereof or of any other Loan Document or of any other
documents or writing furnished in connection with any Loan Document or of any
Collateral; and the Agent makes no representation of any kind or character with
respect to any such matter mentioned in this sentence. The Agent may execute any
of its duties under any of the Loan Documents by or through employees, agents,
and attorneys-in-fact and shall not be answerable to the Banks, the Borrower, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Agent shall have no responsibility for confirming the
accuracy of any compliance certificate or other document or instrument received
by it under the Loan Documents. The Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with the
Agent signed by such payee in form satisfactory to the Agent. Each Bank
acknowledges that it has independently and without reliance on the Agent or any
other Bank, and based upon such information, investigations and inquiries as it
deems appropriate, made its own credit analysis and decision to extend credit to
the Borrower in the manner set forth in the Loan Documents. It shall be the
responsibility of each Bank to keep itself informed as to the creditworthiness
of the Borrower and its Subsidiaries, and the Agent shall have no liability to
any Bank with respect thereto.
Section 11.6. Indemnity. The Banks shall ratably, in accordance with
their respective Percentages, indemnify and hold the Agent, and its directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any Loan
Document or in connection with the transactions contemplated thereby, regardless
of when asserted or arising, except to the extent they are promptly reimbursed
for the same by the Borrower and except to the extent that any event giving rise
to a claim was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. The obligations of the Banks under this Section shall
survive termination of this Agreement.
Section 11.7. Resignation of Agent and Successor Agent. The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of the Agent, the Required Banks shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation then
the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be any Bank hereunder or any commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of its
appointment as the Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the rights and duties of the retiring Agent under
the Loan Documents, and the retiring Agent shall be discharged from its duties
and obligations thereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 11 and all protective provisions of the
other Loan Documents shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent.
Section 11.8. Interest Rate Hedging Arrangements. By virtue of a Bank's
execution of this Agreement or an Assignment Agreement, as the case may be, any
Affiliate of such Bank with whom the Borrower has entered into an agreement
creating Hedging Liability shall be deemed a Bank party hereto for purpose of
any reference in a Loan Document to the parties for whom the Agent is acting, it
being understood and agreed that the rights and benefits of such Affiliate under
the Loan Documents consist exclusively of such Affiliate's right to share in
payments and collections out of the Collateral and the Guaranties as more fully
set forth in other provisions hereof.
Section 11.9. Issuing Bank. The Issuing Bank shall act on behalf of the
Banks with respect to any Letters of Credit issued by it and the documents
associated therewith. The Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Section 11 with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the Applications
pertaining to such Letters of Credit as fully as if the term "Agent", as used in
this Section 11, included Issuing Bank with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to such Issuing
Bank.
Section 11.10. Agent's Relationship with Borrower. The provisions of this
Section 11 shall be binding upon and sets forth agreements by and among each
Bank and the Agent. The provisions of this Section 11 (except as contemplated by
Section 11.7 hereof) shall in no way amend, alter, modify, restrict or otherwise
affect the agreements of the Borrower with the Agent and with the Banks
otherwise set forth in this Agreement.
SECTION 12. MISCELLANEOUS.
Section 12.1. Withholding Taxes. (a) Payments Free of Withholding. Except
as otherwise required by law and subject to Section 12.1(b) hereof, each payment
by the Borrower under this Agreement or the other Loan Documents shall be made
without withholding for or on account of any present or future taxes (other than
overall net income taxes on the recipient) imposed by or within the jurisdiction
in which the Borrower is domiciled, any jurisdiction from which the Borrower
makes any payment, or (in each case) any political subdivision or taxing
authority thereof or therein. If any such withholding is so required, the
Borrower shall make the withholding, pay the amount withheld to the appropriate
governmental authority before penalties attach thereto or interest accrues
thereon and forthwith pay such additional amount as may be necessary to ensure
that the net amount actually received by each Bank and the Agent free and clear
of such taxes (including such taxes on such additional amount) is equal to the
amount which that Bank or the Agent (as the case may be) would have received had
such withholding not been made. If the Agent or any Bank pays any amount in
respect of any such taxes, penalties or interest, the Borrower shall reimburse
the Agent or such Bank for that payment on demand in the currency in which such
payment was made. If the Borrower pays any such taxes, penalties or interest, it
shall deliver official tax receipts evidencing that payment or certified copies
thereof to the Bank or Agent on whose account such withholding was made (with a
copy to the Agent if not the recipient of the original) on or before the
thirtieth day after payment.
(b) U.S. Withholding Tax Exemptions. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Agent on or before the earlier of the date the
initial Credit Event is made hereunder and 30 days after the date hereof, two
duly completed and signed copies of either Form 1001 (relating to such Bank and
entitling it to a complete exemption from withholding under the Code on all
amounts to be received by such Bank, including fees, pursuant to the Loan
Documents and the Loans) or Form 4224 (relating to all amounts to be received by
such Bank, including fees, pursuant to the Loan Documents and the Loans) of the
United States Internal Revenue Service. Thereafter and from time to time, each
Bank shall submit to the Borrower and the Agent such additional duly completed
and signed copies of one or the other of such Forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) requested by the Borrower in a written notice,
directly or through the Agent, to such Bank and (ii) required under then-current
United States law or regulations to avoid or reduce United States withholding
taxes on payments in respect of all amounts to be received by such Bank,
including fees, pursuant to the Loan Documents or the Loans.
(c) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the
Borrower or the Agent any form or certificate that such Bank is obligated to
submit pursuant to subsection (b) of this Section 12.1 or that such Bank is
required to withdraw or cancel any such form or certificate previously submitted
or any such form or certificate otherwise becomes ineffective or inaccurate,
such Bank shall promptly notify the Borrower and Agent of such fact and the Bank
shall to that extent not be obligated to provide any such form or certificate
and will be entitled to withdraw or cancel any affected form or certificate, as
applicable.
Section 12.2. No Waiver, Cumulative Remedies. No delay or failure on the
part of the Agent or any Bank or on the part of the holder or holders of any of
the Obligations in the exercise of any power or right under any Loan Document
shall operate as a waiver thereof or as an acquiescence in any default, nor
shall any single or partial exercise of any power or right preclude any other or
further exercise thereof or the exercise of any other power or right. The rights
and remedies hereunder of the Agent, the Banks and of the holder or holders of
any of the Obligations are cumulative to, and not exclusive of, any rights or
remedies which any of them would otherwise have.
Section 12.3. Non-Business Days. Subject to Section 1.9(d) hereof, if any
payment hereunder becomes due and payable on a day which is not a Business Day,
the due date of such payment shall be extended to the next succeeding Business
Day on which date such payment shall be due and payable. In the case of any
payment of principal falling due on a day which is not a Business Day, interest
on such principal amount shall continue to accrue during such extension at the
rate per annum then in effect, which accrued amount shall be due and payable on
the next scheduled date for the payment of interest.
Section 12.4. Documentary Taxes. The Borrower agrees to pay on demand any
documentary, stamp or similar taxes payable in respect of this Agreement or any
other Loan Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and whether or
not any credit is then in use or available hereunder.
Section 12.5. Survival of Representations. All representations and
warranties made herein or in any other Loan Document or in certificates given
pursuant hereto or thereto shall survive the execution and delivery of this
Agreement and the other Loan Documents, and shall continue in full force and
effect with respect to the date as of which they were made as long as any credit
is in use or available hereunder.
Section 12.6. Survival of Indemnities. All indemnities and other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans and Letters of Credit,
including, but not limited to, Sections 1.13, 10.3 and 12.15 hereof, shall
survive in accordance with their terms the termination of this Agreement and the
other Loan Documents and the payment of the Obligations.
Section 12.7. Sharing of Set-Off. Each Bank agrees with each other Bank a
party hereto that if such Bank shall receive and retain any payment, whether by
set-off or application of deposit balances or otherwise, on any of the Loans or
Reimbursement Obligations in excess of its ratable share of payments on all such
Obligations then outstanding to the Banks, then such Bank shall purchase for
cash at face value, but without recourse, ratably from each of the other Banks
such amount of the Loans or Reimbursement Obligations, or participations
therein, held by each such other Banks (or interest therein) as shall be
necessary to cause such Bank to share such excess payment ratably with all the
other Banks; provided, however, that if any such purchase is made by any Bank,
and if such excess payment or part thereof is thereafter recovered from such
purchasing Bank, the related purchases from the other Banks shall be rescinded
ratably and the purchase price restored as to the portion of such excess payment
so recovered, but without interest. For purposes of this Section, amounts owed
to or recovered by the Issuing Bank in connection with Reimbursement Obligations
in which Banks have been required to fund their participation shall be treated
as amounts owed to or recovered by the Issuing Bank as a Bank hereunder.
Section 12.8. Notices. Except as otherwise specified herein, all notices
hereunder and under the other Loan Documents shall be in writing (including,
without limitation, notice by telecopy) and shall be given to the relevant party
at its address or telecopier number set forth below, or such other address or
telecopier number as such party may hereafter specify by notice to the Agent and
the Borrower given by courier, by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. Notices under the Loan Documents to the
Banks and the Agent shall be addressed to their respective addresses or
telecopier numbers set forth on the signature pages hereof, and to the Borrower
to:
APAC TeleServices, Inc.
One Parkway North
Deerfield, Illinois 60015
Attention: John Abernethy
Telephone: (847) 236-5452
Telecopy: (847) 374-3210
with a copy (in case of notices of default) to:
Barry J. Shkolnik
Neal Gerber & Eisenberg
Two North LaSalle, Suite 2100
Chicago, Illinois 60602
Telephone: (312) 269-8046
Telecopy: (312) 269-1747
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section or on the signature pages hereof and a confirmation of
such telecopy has been received by the sender, (ii) if given by mail, 5 days
after such communication is deposited in the mail, certified or registered with
return receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section or on the
signature pages hereof; provided that any notice given pursuant to Section 1
hereof shall be effective only upon receipt.
Section 12.9. Counterparts. This Agreement may be executed in any number
of counterparts, and by the different parties hereto on separate counterpart
signature pages, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 12.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the benefit
of the Agent and each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any of the
Obligations. The Borrower may not assign any of its rights or obligations under
any Loan Document without the written consent of all of the Banks.
Section 12.11. Participants. Each Bank shall have the right at its own cost
to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
and/or Commitments and/or participations in Swing Loans held by such Bank at any
time and from time to time to one or more other Persons; provided that no such
participation shall relieve any Bank of any of its obligations under this
Agreement, and, provided, further that no such participant shall have any rights
under this Agreement except as provided in this Section, and the Agent shall
have no obligation or responsibility to such participant. Any agreement pursuant
to which such participation is granted shall provide that the granting Bank
shall retain the sole right and responsibility to enforce the obligations of the
Borrower under this Agreement and the other Loan Documents including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of the Loan Documents, except that such agreement may provide that
such Bank will not agree to any modification, amendment or waiver of the Loan
Documents that would reduce the amount of or postpone any fixed date for payment
of any Obligation in which such participant has an interest. Any party to which
such a participation has been granted shall have the benefits of Section 1.13
and Section 10.3 hereof. The Borrower authorizes each Bank to disclose to any
participant or prospective participant under this Section any financial or other
information pertaining to the Borrower.
Section 12.12. Assignment of Commitments by Banks. Each Bank shall have
the right at any time, with the prior consent of the Agent (which consent of the
Agent shall not be unreasonably withheld) and, so long as no Event of Default
then exists, the Borrower (which consent of the Borrower shall not be
unreasonably withheld and shall not in any event ever be required for any
assignment by Bank of Montreal) to sell, assign, transfer or negotiate all or
any part of its Commitments (including the same percentage of its Notes,
outstanding Loans and Reimbursement Obligations owed to it) to one or more
commercial banks or other financial institutions or investors; provided,
however, that (other than in the case of an assignment by Bank of Montreal) in
order to make any such assignment (i) unless the assigning Bank is assigning all
of its Commitments, the assigning Bank shall retain at least $5,000,000 in
outstanding Loans, interests in Letters of Credit and unused Commitments, (ii)
the assignee bank shall have outstanding Loans, interests in Letters of Credit
and unused Commitments of at least $5,000,000, (iii) the assignment of a
Revolving Note shall cover the same percentage of such Bank's Revolving Credit
Commitment, Revolving Loans and interests in Letters of Credit, (iv) the
assignment of a Term Note shall cover the same percentage of such Bank's Term
Loan Commitment and Term Loans, (v) the Swing Loans and Swing Line Commitment
shall only be assigned (if at all) in total, (vi) each such assignment shall be
evidenced by a written agreement (substantially in the form attached hereto as
Exhibit G or in such other form acceptable to the Agent) executed by such
assigning Bank, such assignee bank or banks, the Agent and, if required as
provided above, the Borrower, which agreement shall specify in each instance the
portion of the Obligations which are to be assigned to the assignee bank and the
portion of the Commitments of the assigning Bank to be assumed by the assignee
bank or banks, and (vii) the assigning Bank shall pay to the Agent a processing
fee of $3,500 and any out-of-pocket attorneys' fees and expenses incurred by the
Agent in connection with any such assignment agreement. Any such assignee shall
become a Bank for all purposes hereunder to the extent of the Commitments it
assumes and the assigning Bank shall be released from its obligations, and will
have released its rights, under the Loan Documents to the extent of such
assignment. The Borrower authorizes each Bank to disclose to any purchaser or
prospective purchaser of an interest in the Loans and Reimbursement Obligations
owed to it or its Commitments under this Section any financial or other
information pertaining to the Borrower. Notwithstanding anything herein to the
contrary, (i) any assigning Bank may, without obtaining the Borrower's consent,
assign all or a portion of its Commitments (and related outstanding Obligations
hereunder) to its parent entity and/or any affiliate of such Bank which is at
least 80% owned by such Bank or its parent entity or to any one or more Banks
and (ii) nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes to a Federal Reserve Bank in support of borrowings
made by such Bank from such Federal Reserve Bank.
Section 12.13. Amendments. Any provision of this Agreement or the other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the Required Banks,
and (c) if the rights or duties of the Agent are affected thereby, the Agent;
provided that:
(i) no amendment or waiver pursuant to this Section 12.13 shall
(A) increase any Commitment of any Bank without the consent of such Bank
or (B) reduce the amount of or postpone the due date for any scheduled
payment of any principal of or interest on any Loan or of any
Reimbursement Obligation or of any fee payable hereunder without the
consent of the Bank to which such payment is owing or which has
committed to make such Loan or Letter of Credit (or participate therein)
hereunder or (c) reduce the amount of or postpone the due date for any
prepayment required by Section 1.11(b)(iii) or 1.11(b)(iv) hereof; and
(ii) no amendment or waiver pursuant to this Section 12.13 shall,
unless signed by each Bank, change the definitions of Revolving Credit
Termination Date, or Required Banks, change the provisions of this
Section 12.13, Section 9, release any guarantor or all or any
substantial part of the Collateral (except as otherwise provided for in
the Loan Documents), or affect the number of Banks required to take any
action hereunder or under any other Loan Document.
Section 12.14. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 12.15. Costs and Expenses. The Borrower agrees to pay all
reasonable costs and expenses of the Agent in connection with the preparation,
negotiation, and administration of the Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent, in
connection with the preparation and execution of the Loan Documents, and any
amendment, waiver or consent related thereto, whether or not the transactions
contemplated herein are consummated, together with any fees and charges suffered
or incurred by the Agent in connection with periodic environmental audits, fixed
asset appraisals, title insurance policies, collateral filing fees and lien
searches; provided, however, that the Borrower's liability as a result of the
foregoing provisions of this Section for the costs and expenses of the Agent in
connection with the preparation and negotiation of the Loan Documents delivered
as a condition to, and its due diligence review of the transactions funded by,
the initial extension of credit hereunder shall be limited to $100,000. The
Borrower further agrees to indemnify the Agent, each Bank, and their respective
directors, officers and employees, against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor, whether or not
the indemnified Person is a party thereto, or any settlement arrangement arising
from or relating to any such litigation) which any of them may pay or incur
arising out of or relating to any Loan Document or any of the transactions
contemplated thereby or the direct or indirect application or proposed
application of the proceeds of any Loan or Letter of Credit, other than those
which arise (i) from the gross negligence or willful misconduct of, or material
breach of the Loan Documents by, the party claiming indemnification or (ii)
solely in connection with litigation solely between the Banks. The Borrower,
upon demand by the Agent or a Bank at any time, shall reimburse the Agent or
such Bank for any reasonable legal or other expenses incurred in connection with
investigating or defending against any of the foregoing (including any
settlement costs relating to the foregoing) except if the same is directly due
to the gross negligence or willful misconduct of the party to be indemnified.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement.
Section 12.16. Set-off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Bank and each subsequent holder of any
Obligation is hereby authorized by the Borrower at any time or from time to
time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and to apply any
and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts, and in whatever currency denominated) and any
other indebtedness at any time held or owing by that Bank or that subsequent
holder to or for the credit or the account of the Borrower, whether or not
matured, against and on account of the Obligations of the Borrower to that Bank
or that subsequent holder under the Loan Documents, including, but not limited
to, all claims of any nature or description arising out of or connected with the
Loan Documents, irrespective of whether or not (a) that Bank or that subsequent
holder shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or Notes and other amounts due hereunder shall have become
due and payable pursuant to Section 9 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
Section 12.17. Entire Agreement. The Loan Documents constitute the entire
understanding of the parties thereto with respect to the subject matter thereof
and any prior agreements, whether written or oral, with respect thereto are
superseded hereby.
Section 12.18. Governing Law. This Agreement and the other Loan
Documents, and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws of the State of
Illinois.
Section 12.19. Severability of Provisions. Any provision of any Loan
Document which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.20. Excess Interest. Notwithstanding any provision to the
contrary contained herein or in any other Loan Document, no such provision shall
require the payment or permit the collection of any amount in excess of the
maximum amount of interest permitted by applicable law to be charged for the use
or detention, or the forbearance in the collection, of all or any portion of the
Loans or other obligations outstanding under this Agreement or any other Loan
Document ("Excess Interest"). If any Excess Interest is provided for, or is
adjudicated to be provided for, herein or in any other Loan Document, then in
such event (a) the provisions of this Section 12.20 shall govern and control;
(b) neither the Borrower nor any guarantor or endorser shall be obligated to pay
any Excess Interest; (c) any Excess Interest that the Agent or any Bank may have
received hereunder shall, at the option of the Agent, be (i) applied as a credit
against the then outstanding principal amount of Loans hereunder, accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by
applicable law) and any other obligations, or all of the foregoing; (ii)
refunded to the Borrower, or (iii) any combination of the foregoing; (d) the
interest rate payable hereunder or under any other Loan Document shall be
automatically subject to reduction to the maximum lawful contract rate allowed
under applicable usury laws, and this Agreement and the other Loan Documents
shall be deemed to have been, and shall be, reformed and modified to reflect
such reduction in the relevant interest rate; and (e) neither the Borrower nor
any guarantor or endorser shall have any action against the Agent or any Bank
for any damages whatsoever arising out of the payment or collection of any
Excess Interest.
Section 12.21. Confidentiality. Any information disclosed by the Borrower
or any of its Subsidiaries to the Agent or any Bank which was designated
proprietary or confidential at the time of its receipt by the Agent or such
Bank, and which it is not otherwise in the public domain, shall not be disclosed
by the Agent or such Bank to any other Person except (i) to its independent
accountants and legal counsel (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), (ii) pursuant
to statutory and regulatory requirements, (iii) pursuant to any mandatory court
order, subpoena or other legal process, (iv) to the Agent or any other Bank, (v)
pursuant to any agreement heretofore or hereafter made between such Bank and the
Borrower which permits such disclosure, (vi) in connection with the exercise of
any remedy under the Loan Documents, or (vii) subject to an agreement containing
provisions substantially the same as those of this Section, to any participant
in or assignee of, or prospective participant in or assignee of, any Obligation
or Commitments.
Section 12.22. Single Bank. If and so long as Harris Trust and Savings
Bank is the only Bank hereunder, Harris Trust and Savings Bank shall have all
rights, powers and privileges afforded to the Agent, the Banks, and the Required
Banks hereunder and under the other Loan Documents.
Section 12.23. Syndication Agent. Nothing in this Agreement
shall impose any obligation on Bank of Montreal in its capacity as Syndication
Agent.
Section 12.24. Submission to Jurisdiction; Waiver of Jury Trial. The
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Northern District of Illinois and of any Illinois state
court sitting in the Cook County, Illinois for purposes of all legal proceedings
arising out of or relating to this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby. The Borrower irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. THE BORROWER, THE AGENT AND EACH BANK HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
[SIGNATURE PAGES TO FOLLOW]
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 8th day of September, 1998.
APAC TELESERVICES, INC.
By
Name__________________________
Title_________________________
Accepted and agreed to as of the day and year last above written.
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Agent
Address and Amount of Commitments: By_________________________________________
Name: Dan Sabol
Address: Title: Vice President
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
Attention: Daniel K. Sabol
Telecopy: (312) 293-5068
Telephone: (312) 461-3766
with notices of Borrowing requests to:
Attention: Shirley Joyner
Telecopy: (312) 765-8078
Telephone: (312) 461-6768
Revolving Credit Commitment:
$10,000,000
Term Loan Commitment:
$20,000,000
Lending Offices:
111 West Monroe Street
Chicago, Illinois 60603
BANK OF MONTREAL, in its individual
capacity as a Bank and as
Syndication Agent
Address and Amount of Commitments: By__________________________________
Name: Michael W. Hedrick
Address: Title: Director
Bank of Montreal
115 South LaSalle Street
Chicago, Illinois 60603
Attention: Michael W. Hedrick
Telecopy: (312) 750-3834
Telephone: (312) 750-3766
with notices of Borrowing requests to:
Attention: Terri Perez-Ford
Telecopy: (312) 750-3456
Telephone: (312) 750-3827
Revolving Credit Commitment:
$16,666,666.67
Term Loan Commitment:
$33,333,333.33
Lending Offices:
115 South LaSalle Street
Chicago, Illinois 60603
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
Address and Amount of Commitments: By__________________________________
Name: __________________________
Address: Title: _______________________
Bank of America National Trust
and Savings Association
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Victor P. Stasica
Telecopy: (312) 828-1974
Telephone: (312) 828-8815
with notices of Borrowing requests to:
Attention: Denise Jones
Telecopy: (312) 974-1623
Telephone: (312) 828-7163
Revolving Credit Commitment:
$10,000,000
Term Loan Commitment:
$20,000,000
Lending Offices:
231 South LaSalle Street
Chicago, Illinois 60697
LASALLE NATIONAL BANK
Address and Amount of Commitments: By_______________________________________
Name: ______________________________
Address: Title: ____________________________
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Donna N. Smith
Telecopy: (312) 904-0522
Telephone: (312) 904-1426
with notices of Borrowing requests to:
Attention: Ann M. Locke
Telecopy: (312) 904-0522
Telephone: (312) 904-0184
Revolving Credit Commitment:
$10,000,000
Term Loan Commitment:
$20,000,000
Lending Offices:
135 South LaSalle Street
Chicago, Illinois 60603
THE NORTHERN TRUST COMPANY
Address and Amount of Commitments: By_____________________________________
Name: ____________________________
Address: Title: __________________________
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Jeffrey B. Clark
Telecopy: (312) 444-7028
Telephone: (312) 444-7172
with notices of Borrowing requests to:
Attention: Edie Reed
Telecopy: (312) 630-1566
Telephone: (312) 444-3352
Revolving Credit Commitment:
$5,000,000
Term Loan Commitment:
$10,000,000
Lending Offices:
50 South LaSalle Street
Chicago, Illinois 60675
FIRSTAR BANK MILWAUKEE, N.A.
Address and Amount of Commitments: By__________________________________
Name: _________________________
Address: Title: _______________________
Firstar Bank Milwaukee, N.A.
777 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: John Falb
Telecopy: (414) 765-5062
Telephone: (414) 765-6041
with notices of Borrowing requests to:
Attention: Brenda Luethy
Telecopy: (920) 426-7655
Telephone: (920) 426-7604
Revolving Credit Commitment:
$6,666,666.67
Term Loan Commitment:
$13,333,333.33
Lending Offices:
777 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
MERCANTILE BANK NATIONAL ASSOCIATION
Address and Amount of Commitments: By____________________________________
Name: ___________________________
Address: Title: _________________________
Mercantile Bank National Association
One Mercantile Center, 12th Floor
St. Louis, Missouri 63101
Attention: David F. Higbee
Telecopy: (314) 418-2203
Telephone: (314) 418-1967
with notices of Borrowing requests to:
Attention: Maggie Thies
Telecopy: (314) 418-2203
Telephone: (314) 418-2454
Revolving Credit Commitment:
$6,666,666.67
Term Loan Commitment:
$13,333,333.33
Lending Offices:
One Mercantile Center, 12th Floor
St. Louis, Missouri 63101
THE FUJI BANK, LIMITED
Address and Amount of Commitments: By___________________________________
Name: __________________________
Address: Title: ________________________
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Attention: James S. Bell
Telecopy: (312) 621-0539
Telephone: (312) 621-0526
with notices of Borrowing requests to:
Attention: Vir Guiang
Telecopy: (312) 621-0395
Telephone: (312) 621-3385
Revolving Credit Commitment:
$5,000,000
Term Loan Commitment:
$10,000,000
Lending Offices:
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
THE BANK OF NOVA SCOTIA
Address and Amount of Commitments: By________________________________________
Name: _______________________________
Address: Title: _____________________________
The Bank of Nova Scotia
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
Attention: James Belletire
Telecopy: (312) 201-4108
Telephone: (312) 201-4185
with notices of Borrowing requests to:
Attention: Demetria January
Telecopy: (404) 888-8998
Telephone: (404) 877-1540
Revolving Credit Commitment:
$5,000,000
Term Loan Commitment:
$10,000,000
Lending Offices:
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
GUARANTORS' CONSENT
Substantially concurrent with the closing of the Previous Credit
Agreement, the undersigned heretofore executed and delivered a Guaranty
Agreement dated May 20, 1998 (the "Guaranty") and hereby consent to the Amended
and Restated Credit Agreement as set forth above and confirms that their
Guaranty and all of the undersigned's obligations thereunder remain in full
force and effect for the benefit and security of the Obligations to the same
extent and with the same force and effect, as if all references in the Guaranty
to the Previous Credit Agreement were instead references to this Agreement. The
undersigned further agree that the consent of the undersigned to any further
amendments to this Agreement shall not be required as a result of this consent
having been obtained.
PARAGREN TECHNOLOGIES, INC.
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES OF TEXAS, L.P.
By: APAC TELESERVICES GENERAL
PARTNER, INC., its General Partner
By_____________________________________________
Name________________________________________
Title_______________________________________
APAC TELESERVICES GENERAL PARTNER, INC.
Name______________________________________________
Title_____________________________________________
ITI HOLDINGS, INC.
Name______________________________________________
Title_____________________________________________
ITI MARKETING SERVICES, INC.
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES, L.L.C.
By: APAC TELESERVICES, INC.
Name______________________________________________
Title_____________________________________________
PLEDGORS' CONSENT
Substantially concurrent with the closing of the Previous Credit
Agreement, the undersigned heretofore executed and delivered a Pledge Agreement
dated May 20, 1998 (the "Pledge") and hereby consent to the Amended and Restated
Credit Agreement as set forth above and confirms that the Pledge and all of the
undersigned's obligations thereunder remain in full force and effect for the
benefit and security of the Obligations to the same extent and with the same
force and effect, as if all references in the Pledge to the Previous Credit
Agreement were instead references to this Agreement. The undersigned further
agree that the consent of the undersigned to any further amendments to this
Agreement shall not be required as a result of this consent having been
obtained.
APAC TELESERVICES, INC.
By
Name______________________________________________
Title_____________________________________________
ITI HOLDINGS, INC.
By
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES GENERAL PARTNER, INC.
By
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES, L.L.C.
By
Name______________________________________________
Title_____________________________________________
EXHIBIT A
NOTICE OF PAYMENT REQUEST
[Date]
[Name of Bank]
[Address]
Attention:
Reference is made to the Amended and Restated Credit Agreement, dated as
of September 8, 1998, among APAC TeleServices, Inc., the Banks party thereto,
and Harris Trust and Savings Bank, as Agent (the "Credit Agreement").
Capitalized terms used herein and not defined herein have the meanings assigned
to them in the Credit Agreement. [The Borrower has failed to pay its
Reimbursement Obligation in the amount of $_________. Your Bank's Percentage of
the unpaid Reimbursement Obligation is $_________] or [The undersigned has been
required to return a payment by the Borrower of a Reimbursement Obligation in
the amount of $________. Your Bank's Percentage of the returned Reimbursement
Obligation is
$---------.]
Very truly yours,
HARRIS TRUST AND SAVINGS BANK, as
Issuing Bank
By
Its______________________________________
EXHIBIT B
NOTICE OF BORROWING
Date: ______________, ____
To: Harris Trust and Savings Bank, as Agent for the Banks parties to the
Amended and Restated Credit Agreement dated as of September 8, 1998 (as
extended, renewed, amended or restated from time to time, the "Credit
Agreement") among APAC TelesServices, Inc., certain Banks which are
signatories thereto and Harris Trust and Savings Bank, as Agent
Ladies and Gentlemen:
The undersigned, APAC TeleServices, Inc. (the "Borrower"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 1.6 of the
Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is ___________,
____.
2. The aggregate amount of the proposed Borrowing is
$______________.
3. The Borrowing is being advanced under the [REVOLVING] [TERM]
Credit.
4. The Borrowing is to be comprised of $___________ of [BASE
RATE] [EURODOLLAR] Loans.
[5. THE DURATION OF THE INTEREST PERIOD FOR THE EURODOLLAR
LOANS INCLUDED IN THE BORROWING SHALL BE ____________ MONTHS.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Borrower contained
in Section 6 of the Credit Agreement are true and correct as though made
on and as of such date (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and
correct as of such date); and
(b) no Default or Event of Default has occurred and is continuing
or would result from such proposed Borrowing.
APAC TELESERVICES, INC.
By
Name__________________________________________
Title_________________________________________
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
Date: ____________, ____
To: Harris Trust and Savings Bank, as Agent for the Banks parties to the
Amended and Restated Credit Agreement dated as of September 8, 1998 (as
extended, renewed, amended or restated from time to time, the "Credit
Agreement") among APAC TeleServices, Inc., certain Banks which are
signatories thereto and Harris Trust and Savings Bank, as Agent
Ladies and Gentlemen:
The undersigned, APAC TeleServices, Inc. (the "Borrower"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 1.6 of the
Credit Agreement, of the [CONVERSION] [CONTINUATION] of the Loans specified
herein, that:
1. The conversion/continuation Date is __________, ____.
2. The aggregate amount of the [REVOLVING] [TERM] Loans to be
[CONVERTED] [CONTINUED] is $______________.
3. The Loans are to be [CONVERTED INTO] [CONTINUED AS]
[EURODOLLAR] [BASE RATE] Loans.
4. [IF APPLICABLE:] The duration of the Interest Period for the
[REVOLVING] [TERM] Loans included in the [CONVERSION] [CONTINUATION]
shall be _________ months.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed conversion/continuation
date, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Borrower contained
in Section 6 of the Credit Agreement are true and correct as though made
on and as of such date (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and
correct as of such date); provided, however, that this condition shall
not apply to the conversion of an outstanding Eurodollar Loan to a Base
Rate Loan; and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed [CONVERSION]
[CONTINUATION].
APAC TELESERVICES, INC.
By:
Name_____________________________________
Title____________________________________
EXHIBIT D
REVOLVING NOTE
U.S. $_______________ __________, 19__
FOR VALUE RECEIVED, the undersigned, APAC TELESERVICES, INC., an
Illinois corporation (the "Borrower"), hereby promises to pay to the order of
______________________ (the "Bank") on the Revolving Credit Termination Date of
the hereinafter defined Credit Agreement, at the principal office of Harris
Trust and Savings Bank, as Agent, in Chicago, Illinois, in immediately available
funds, the principal sum of ___________________ Dollars ($__________) or, if
less, the aggregate unpaid principal amount of all Revolving Loans made by the
Bank to the Borrower pursuant to the Credit Agreement, together with interest on
the principal amount of each Revolving Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates, specified in
the Credit Agreement.
The Bank shall record on its books or records or on a schedule attached
to this Note, which is a part hereof, each Revolving Loan made by it pursuant to
the Credit Agreement, together with all payments of principal and interest and
the principal balances from time to time outstanding hereon, whether the
Revolving Loan is a Base Rate Loan or a Eurodollar Loan, the interest rate and
Interest Period applicable thereto, provided that prior to the transfer of this
Note all such amounts shall be recorded on a schedule attached to this Note. The
record thereof, whether shown on such books or records or on a schedule to this
Note, shall be prima facie evidence of the same, provided, however, that the
failure of the Bank to record any of the foregoing or any error in any such
record shall not limit or otherwise affect the obligation of the Borrower to
repay all Revolving Loans made to it pursuant to the Credit Agreement together
with accrued interest thereon.
This Note is one of the Revolving Notes referred to in the Amended and
Restated Credit Agreement dated as of September 8, 1998, among the Borrower,
Harris Trust and Savings Bank, as Agent, and the Banks party thereto (the
"Credit Agreement"), and this Note and the holder hereof are entitled to all the
benefits and security provided for thereby or referred to therein, to which
Credit Agreement reference is hereby made for a statement thereof. All defined
terms used in this Note, except terms otherwise defined herein, shall have the
same meaning as in the Credit Agreement. This Note shall be governed by and
construed in accordance with the internal laws of the State of Illinois.
Voluntary prepayments may be made hereon, certain prepayments are
required to be made hereon, and this Note may be declared due prior to the
expressed maturity hereof, all in the events, on the terms and in the manner as
provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
APAC TELESERVICES, INC.
By
Name________________________________________
Title_______________________________________
EXHIBIT E
TERM NOTE
U.S. $_______________ ___________, 19__
FOR VALUE RECEIVED, the undersigned, APAC TELESERVICES, INC., an
Illinois corporation (the "Borrower"), hereby promises to pay to the order of
______________________ (the "Bank") at the principal office of Harris Trust and
Savings Bank, as Agent, in Chicago, Illinois, in immediately available funds,
the principal sum of ___________________ Dollars ($__________) or, if less, the
aggregate unpaid principal amount of the Term Loan made or maintained by the
Bank to the Borrower pursuant to the Credit Agreement, in consecutive
quarter-annual principal installments in the amounts called for by Section
1.10(b) of the Credit Agreement, commencing on ___________, 1998, and continuing
on the first day of each June, September, December and March occurring
thereafter, together with interest on the principal amount of such Term Loan
from time to time outstanding hereunder at the rates, and payable in the manner
and on the dates, specified in the Credit Agreement, except that all principal
and interest not sooner paid on the Term Loan evidenced hereby shall be due and
payable on June 1, 2003, the final maturity date hereof.
The Bank shall record on its books or records or on a schedule attached
to this Note, which is a part hereof, the Term Loan made or maintained by it
pursuant to the Credit Agreement, together with all payments of principal and
interest and the principal balances from time to time outstanding hereon,
whether the Term Loan is a Base Rate Loan or a Eurodollar Loan, the interest
rate and Interest Period applicable thereto, provided that prior to the transfer
of this Note all such amounts shall be recorded on a schedule attached to this
Note. The record thereof, whether shown on such books or records or on a
schedule to this Note, shall be prima facie evidence of the same, provided,
however, that the failure of the Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay the Term Loan made to it pursuant to the Credit Agreement
together with accrued interest thereon.
This Note is one of the Term Notes referred to in the Amended and
Restated Credit Agreement dated as of September 8, 1998, among the Borrower,
Harris Trust and Savings Bank, as Agent, and the Banks party thereto (the
"Credit Agreement"), and this Note and the holder hereof are entitled to all the
benefits and security provided for thereby or referred to therein, to which
Credit Agreement reference is hereby made for a statement thereof. All defined
terms used in this Note, except terms otherwise defined herein, shall have the
same meaning as in the Credit Agreement. This Note shall be governed by and
construed in accordance with the internal laws of the State of Illinois.
Voluntary prepayments may be made hereon, certain prepayments are
required to be made hereon, and this Note may be declared due prior to the
expressed maturity hereof, all in the events, on the terms and in the manner as
provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
APAC TELESERVICES, INC.
By
Name__________________________________
Title_________________________________
EXHIBIT F
SWING LINE NOTE
U.S. $______________ __________, 19__
On the Revolving Credit Termination Date, for value received, the
undersigned, APAC TELESERVICES, INC., an Illinois corporation (the "Borrower"),
promises to pay to the order of Harris Trust and Savings Bank (the "Bank"), at
the principal office of Harris Trust and Savings Bank in Chicago, Illinois, the
principal sum of (i) _________________ Dollars ($______________), or (ii) such
lesser amount as may at the time of the maturity hereof, whether by acceleration
or otherwise, be the aggregate unpaid principal amount of all Swing Loans owing
from the Borrower to the Bank under the Swing Line Commitment provided for in
the Credit Agreement hereinafter mentioned.
This Note evidences Swing Loans made and to be made to the Borrower by
the Bank under the Swing Line Commitment provided for under that certain Amended
and Restated Credit Agreement dated as of September 8, 1998 by and between the
Borrower, Harris Trust and Savings Bank individually and as Agent and certain
banks which are or may from time to time become parties thereto (the "Credit
Agreement"), and the Borrower hereby promises to pay interest at the office
specified above on each Swing Loan evidenced hereby at the rates and times
specified therefor in the Credit Agreement.
Each Swing Loan made under the Swing Line Commitment provided for in the
Credit Agreement by the Bank to the Borrower against this Note, any repayment of
principal hereon and the interest rates applicable thereto shall be endorsed by
the holder hereof on the reverse side of this Note or recorded on the books and
records of the holder hereof (provided that such entries shall be endorsed on
the reverse side hereof prior to any negotiation hereof) and the Borrower agrees
that in any action or proceeding instituted to collect or enforce collection of
this Note, the entries so endorsed on the reverse side hereof or recorded on the
books and records of the Bank shall be prima facie evidence of the unpaid
balance of this Note and the interest rates applicable thereto.
This Note is issued by the Borrower under the terms and provisions of
the Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity as specified in the
Credit Agreement, and certain prepayments are required to be made hereon, all in
the events, on the terms and with the effects provided in the Credit Agreement.
All capitalized terms used herein without definition shall have the same meaning
herein as such terms have in the Credit Agreement.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
APAC TELESERVICES, INC.
By
Its_______________________________________________
EXHIBIT G
COMPLIANCE CERTIFICATE
FOR
APAC TELESERVICES, INC.
This Compliance Certificate is furnished to Harris Trust and Savings
Bank, as Agent (the "Agent") pursuant to that certain Amended and Restated
Credit Agreement dated as of September 8, 1998, among APAC TeleServices, Inc.
(the "Borrower"), Harris Trust and Savings Bank, as Agent, and the Banks party
thereto (the "Credit Agreement"). Unless otherwise defined herein, the terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________________________
of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have
made, or have caused to be made under my supervision, a detailed review
of the transactions and conditions of the Borrower and its Subsidiaries
during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or the
occurrence of any event which constitutes a Default or Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except as
set forth below; and
4. The Attachment hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants
of the Credit Agreement, all of which data and computations are, to the
best of my knowledge, true, complete and correct and have been made in
accordance with the relevant Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken,
is taking, or proposes to take with respect to each such condition o
event:
======================================================================
======================================================================
The foregoing certifications, together with the computations set forth
in the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 19___.
APAC TELESERVICES, INC.
By___________________________
- --------------------------------------------------------------------------------
(Name) (Title)
ATTACHMENT TO COMPLIANCE CERTIFICATE
FOR
APAC TELESERVICES, INC.
Compliance Calculations for Amended and Restated Credit Agreement
Dated as of September 8, 1998
Calculations as of _____________, 19___
- ---------------------------------------------------------------------------
A. TOTAL DEBT RATIO (SECTION 8.22 OF THE AGREEMENT)
1. Total Funded Debt (as defined) $_______________
A1
2. Net Income (as defined and as adjusted per $_______________
the definition of Adjusted EBITDA) for the A2
four fiscal quarters then ended
3. Interest Expense (as defined and as so $_______________
adjusted) for the same period A3
4. Federal, state and local income taxes (as $_______________
so adjusted) for the same period A4
5. Deprecation of fixed assets (as so $_______________
adjusted) for the same period A5
6. Amortization (as so adjusted) for the same $_______________
period A6
7. Add Lines A2-A6 (Adjusted EBITDA) $_______________
A7
8. Ratio of Line A1 to A7 _____ : 1.0
9. Line A8 Ratio must be less than or equal to:
Total Debt Ratio Shall
From and Including To and Including Not Be Greater Than:
the date of Credit 6/30/1999 3.00 to 1.0
Agreement
7/1/1999 6/30/2000 2.75 to 1.0
7/1/2000 6/30/2001 2.50 to 1.0
7/1/2001 6/30/2002 2.25 to 1.0
7/1/2002 6/30/2003 2.00 to 1.0
10. Is Borrower in Compliance (Circle Yes or No) Yes / No
B. NET WORTH (SECTION 8.23 OF THE AGREEMENT)
1. Shareholders' Equity $____________
minus
(i) Notes from Officers and Employees ($____________)
(ii) Write-up of Assets
($------------)
Net Worth
$---------------
B1
2. Line B1 must be greater than or equal to: $_______________
B2
3. Is Borrower in Compliance (Circle Yes or No) Yes / No
C. FIXED CHARGE COVERAGE RATIO (SECTION 8.24 OF THE AGREEMENT)
1. Adjusted EBITDA (Line A7) $_______________
C1
2. Capital Expenditures (as defined) for the same period $__________
C2
3. Subtract Line C2 from C1 $_______________
C3
4. Principal payments due in the next 12 months $_______________
C4
5. Annualized Interest Expense (as defined) for the same period
$_______________
C5
6. Add Lines C4+C5 $_______________
C6
7. Ratio of Line C3 to Line C6 _____ : 1.0
8. Line C7 ratio must be greater than or equal to: 1.50 : 1.0
9. Is Borrower in Compliance Yes/No
D. ADJUSTED EBITDA (SECTION 8.25 OF THE AGREEMENT)
1. Adjusted EBITDA (Line A7) $_______________
D1
2. Line D1 must be greater than or equal to:
Adjusted EBITDA Shall
From and Including To and Including Not Be Less Than:
the date of Credit 6/30/2000 $65,000,000
Agreement
7/1/2000 6/30/2003 $70,000,000
3. Is Borrower in Compliance (Circle Yes or No) Yes / No
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE
Dated ______________, 19_____
Reference is made to the Amended and Restated Credit Agreement dated as
of September 8, 1998 (the "Credit Agreement") among APAC TeleServices, Inc., an
Illinois corporation, the Banks (as defined in the Credit Agreement) and Harris
Trust and Savings Bank, as Agent for the Banks (the "Agent"). Terms defined in
the Credit Agreement are used herein with the same meaning.
____________________________________________________(the "Assignor") and
_________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor without recourse to the Assignor, an interest in and
to all of the Assignor's rights and obligations under the Credit
Agreement as of the Effective Date (as defined below) in the amounts
specified on Schedule I hereto, including, without limitation, the
interest set forth on such Schedule in each of the Assignor's
Commitments (other than the Swing Line Commitment) as in effect on the
Effective Date and the Loans (other than the Swing Line), if any, owing
to the Assignor on the Effective Date and in the case of any assignment
of the Assignor's Revolving Credit Commitment, a pro rata share of any
outstanding L/C Obligations.
2. The Assignor (i) represents and warrants that as of the date
hereof (A) its Revolving Credit Commitment is $_____________ and its
Term Loan Commitment is $______________, (B) the aggregate outstanding
principal amount of Loans made by it under the Credit Agreement that
have not been repaid is $____________ ($_____________ of Revolving Loans
and $_____________ of Term Loans ) and a description of the interest
rates and interest periods of such Loans is attached as Schedule 1
hereto, (C) the aggregate principal amount of Assignor's Percentage of
outstanding L/C Obligations is $____________, and (D) the aggregate
amount of Assignor's participations (whether or not funded) in
outstanding Swing Loans is $____________; (ii) represents and warrants
that it is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any adverse
claim, lien, or encumbrance of any kind; (iii) makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; and (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower
or any Subsidiary or performance or observance by the Borrower or any
Subsidiary of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 8.5 thereof 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 Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the
Assignor or any other Bank 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 Credit
Agreement; (iii) appoints and authorizes the Agent to take such action
as Agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (v)
specifies as its lending office (and address for notices) the offices
set forth beneath its name on the signature pages hereof.
4. As consideration for the assignment and sale contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in Federal funds an amount equal to $________________*.
It is understood that commitment and/or facility fees accrued to the
Effective Date with respect to the interest assigned hereby are for the
account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor
and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent
of such other party's interest therein and shall promptly pay the same
to such other party.
5. The effective date for this Assignment and Acceptance shall
be _____________, 19___ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Agent for
acceptance and recording by the Agent and, if required, the Borrower.
6. Upon such acceptance and recording, as of the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
7. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement for
periods prior to the Effective Date directly between themselves.
8. In accordance with Section 12.12 of the Credit Agreement, the
Assignor and the Assignee request and direct that the Agent prepare and
cause the Borrower to execute and deliver to the Assignee the relevant
Notes payable to the Assignee in the amount of its Commitments and new
Notes to the Assignor in the amount of its Commitments after giving
effect to this assignment.
9. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Illinois.
[ASSIGNOR BANK]
By
Name______________________________________________
Title_____________________________________________
[ASSIGNEE BANK]
By
Name______________________________________________
Title_____________________________________________
Lending office (and address
for notices):
Accepted and consented this
____ day of ___________, 19__
APAC TELESERVICES, INC.
By________________________________________________
Name__________________________________________
Title_________________________________________
Accepted and consented to by the Agent this
_______ day of ___________, 19__
HARRIS TRUST AND SAVINGS BANK, as Agent
By________________________________________________
Name__________________________________________
Title_________________________________________
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 8, 1998, AMONG APAC
TELESERVICES, INC.
THE BANKS PARTY THERETO,
AND
HARRIS TRUST AND SAVINGS BANK, AS AGEN
Revolving Credit Term Loan Aggregate Amount of
Commitment: Commitment: Interests Assigned:
$------------ $------------ $------------
Effective Date of Assignment: _________, _______
SCHEDULE 6.2
NAME JURISDICTION OF PERCENTAGE MATERIAL
INCORPORATION OWNERSHIP OR
NON-MATERIAL
APAC Insurance Services Illinois 100% Non-Material
Agency, Inc.
APAC TeleServices General Illinois 100% Material
Partner, Inc.
APAC TeleServices of Illinois 100% Non-Material
Illinois, Inc.
APAC TeleServices of Michigan 100% Non-Material
Michigan, Inc.
APAC TeleServices of Texas 100% Material
Texas, L.P.
APAC TeleServices, L.L.C. Illinois 100% Material
Paragren Technologies, Inc. Delaware 100% Material
The Shechtman Group, L.L.C. Nevada 100% Non-Material
ITI Holdings, Inc. Delaware 100% Material
ITI Marketing Services, Inc. Delaware 100% Material
SCHEDULE 8.7
OTHER INDEBTEDNESS
1. Obligations of the Borrower aggregating not more than $1,367,385 in
respect of (i) the City of Cedar Rapids, Iowa Industrial Development Revenue
Bonds (E & S Electrical Contractors, Inc. Project), Series 1981 and (ii) the
City of Cedar Rapids, Iowa Industrial Development Revenue Bonds (TLS Co.
Project), Series 1981.
2. Obligations of the Borrower aggregating not more than $878,617 in
respect of those certain Brown County Development Revenue Bonds.
3. Obligations of the Borrower aggregating not more than $72,000 in
respect of those certain Lawton Industrial Development Notes.
4. Obligations of the Borrower aggregating not more than $3,249,544 in
respect of various capital leases of the Borrower and ITI Marketing.
SCHEDULE 8.8
OTHER LIENS
1. Liens on the Borrower's buildings and related fixtures at the
so-called Cedar Rapids Ground Transportation Center in Cedar Rapids, Iowa
securing the indebtedness described under item 1 of Schedule 8.7
SCHEDULE 8.9
PRESENT INVESTMENTS IN SUBSIDIARIES
NAME AMOUNT OF INVESTMENT
APAC Insurance Services
Agency, Inc. $25,000
APAC TeleServices General
Partner, Inc. $96,000
APAC TeleServices of
Illinois, Inc. $1,000
APAC TeleServices of
Michigan, Inc. $1,000
APAC TeleServices of
Texas, L.P. $0
APAC TeleServices, L.L.C. $8,640,000
Paragren Technologies, Inc. $13,879,000
The Shechtman Group, L.L.C. $0
ITI Holdings, Inc. $160,000,000
ITI Marketing Services, Inc. $0
APAC TELESERVICES, INC.
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (herein,
the "Amendment") is entered into as of September 29, 1998, between APAC
TeleServices, Inc., an Illinois corporation (the "Borrower"), each of the Banks
party to the Credit Agreement (as such term is defined below) and Harris Trust
and Savings Bank, as a Bank and in its capacity as agent under the Credit
Agreement (the "Agent").
PRELIMINARY STATEMENTS
A. The Borrower and the Banks entered into a certain Amended and
Restated Credit Agreement, dated as of September 8, 1998 (the "Credit
Agreement"). All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Banks increase the Permitted
Shareholder Redemptions, amend certain covenants, and make certain other
amendments to the Credit Agreement, and the Banks are willing to do so under the
terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS.
Section 1.1 Subject to the satisfaction of the conditions precedent set
forth in Section 2 below, the Credit Agreement shall be and hereby is amended as
follows:
(a) The definition of "Permitted Shareholder Redemptions"
appearing in Section 5 of the Credit Agreement shall be amended and
restated in its entirety and as so amended shall be restated to read as
follows:
""Permitted Shareholder Redemptions" means redemptions by
the Borrower of its common capital stock during the period from
the date hereof through June 30, 2003 for an aggregate
consideration not to exceed $20,000,000."
(b) Section 8.23 of the Credit Agreement shall be amended and
restated in its entirety and as so amended shall be restated to read as
follows:
"Section 8.23.Net Worth. The Borrower shall, as of the
last day of each fiscal quarter at all times, maintain Net Worth
of not less than the Minimum Required Amount. For purposes
hereof, the term "Minimum Required Amount" shall mean
$105,000,000 and shall increase (but never decrease) as of
September 30, 1998 and as of the last day of each fiscal quarter
of the Borrower thereafter by an amount (if positive) equal to
80% of Net Income for the fiscal quarter then ended."
SECTION 2. CONDITIONS PRECEDENT.
This Amendment shall be and become effective on the date on which the
Borrower and the Required Banks shall have executed and delivered this Amendment
and the Guarantors shall have executed the Guarantors' Consent attached hereto.
SECTION 3. REPRESENTATIONS.
In order to induce the Banks to execute and deliver this Amendment, the
Borrower hereby represents to each Bank that as of the date hereof, after giving
effect to this Amendment, the representations and warranties set forth in
Section 6 of the Credit Agreement are and shall be and remain true and correct
(except that the representations contained in Section 6.5 shall be deemed to
refer to the most recent financial statements of the Borrower delivered to the
Agent) and the Borrower is in full compliance with all of the terms and
conditions of the Credit Agreement and no Default or Event of Default has
occurred and is continuing under the Credit Agreement.
SECTION 4. MISCELLANEOUS.
(a) Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made pursuant to or
with respect to the Credit Agreement, any reference in any of such items to the
Credit Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
(b) By executing this Amendment in the place provided for that purpose
below, each Guarantor hereby consents to the Amendment to the Credit Agreement
as set forth herein and confirms that its obligations thereunder remain in full
force and effect. Each Guarantor further agrees that the consent of such
Guarantor to any further amendments to the Credit Agreement shall not be
required as a result of this consent having been obtained.
(c) The Borrower agrees to pay on demand all reasonable costs and
expenses of or incurred by the Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment.
(d) This Amendment may be executed in any number of counterparts, and by
the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
Dated as of September 29, 1998.
APAC TELESERVICES, INC.
By:
Name:______________________________________________
Title:_____________________________________________
Accepted and agreed to as of the date and year last above written.
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as
Agent
By:
Name:___________________________________
Title:__________________________________
BANK OF MONTREAL, in its individual
capacity as a Bank and as
Syndication Agent
By:
Name:___________________________________
Title:__________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:_________________________________________________
Title:________________________________________________
LASALLE NATIONAL BANK
By:
Name:_________________________________________________
Title:________________________________________________
THE NORTHERN TRUST COMPANY
By:
Name:_________________________________________________
Title:________________________________________________
FIRSTAR BANK MILWAUKEE, N.A.
By:
Name:_________________________________________________
Title:________________________________________________
MERCANTILE BANK NATIONAL ASSOCIATION
By:
Name:_________________________________________________
Title:________________________________________________
THE FUJI BANK, LIMITED
By:
Name:_________________________________________________
Title:________________________________________________
THE BANK OF NOVA SCOTIA
By:
Name:_________________________________________________
Title:________________________________________________
GUARANTORS' CONSENT
The undersigned have heretofore executed and delivered to the Guaranteed
Creditors (as defined in the Guaranty) a Guaranty Agreement dated May 20, 1998
(the "Guaranty") and hereby consent to the Amendment to the Credit Agreement as
set forth above and confirms that their Guaranty and all of the undersigned's
obligations thereunder remain in full force and effect. The undersigned further
agree that the consent of the undersigned to any further amendments to the
Credit Agreement shall not be required as a result of this consent having been
obtained, except to the extent, if any, required by the Guaranty referred to
above.
PARAGREN TECHNOLOGIES, INC.
By
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES OF TEXAS, L.P.
By: APAC TELESERVICES GENERAL
PARTNER, INC., its General Partner
By_____________________________________________
Name________________________________________
Title_______________________________________
APAC TELESERVICES GENERAL PARTNER, INC.
By
Name______________________________________________
Title_____________________________________________
ITI HOLDINGS, INC.
By
Name______________________________________________
Title_____________________________________________
ITI MARKETING SERVICES, INC.
By
Name______________________________________________
Title_____________________________________________
APAC TELESERVICES, L.L.C.
By: APAC TELESERVICES, INC.
By
Name______________________________________________
Title_____________________________________________
- --------
* Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula
rather than as a fixed sum.