EXHIBIT 10.4
AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AGREEMENT
dated as of July 6, 2001
among
CERTEGY INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
SUNTRUST BANK
as Administrative Agent
WACHOVIA BANK, N.A.
as Co-Syndication Agent
FLEET NATIONAL BANK
as Co-Syndication Agent
and
BANK OF AMERICA, N.A.
as Documentation Agent
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SUNTRUST EQUITABLE SECURITIES CORPORATION
as Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS; CONSTRUCTION.......................................................................1
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Section 1.1. Definitions.....................................................................................1
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Section 1.2. Classifications of Loans and Borrowings........................................................19
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Section 1.3. Accounting Terms and Determination.............................................................19
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Section 1.4. Terms Generally................................................................................20
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Section 1.5. Amendment and Restatement......................................................................20
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ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS............................................................20
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Section 2.1. General Description of Facilities..............................................................20
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Section 2.2. Revolving Loans................................................................................20
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Section 2.3. Procedure for Revolving Borrowings.............................................................21
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Section 2.4. Intentionally Deleted..........................................................................21
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Section 2.5. Intentionally Deleted..........................................................................21
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Section 2.6. Competitive Bid Borrowings.....................................................................21
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Section 2.7. Intentionally Deleted..........................................................................24
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Section 2.8. Funding of Borrowings..........................................................................24
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Section 2.9. Interest Elections; Conversions; Continuations.................................................25
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Section 2.10. Optional Reduction and Termination of Commitments..............................................26
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Section 2.11. Repayment of Loans.............................................................................26
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Section 2.12. Evidence of Indebtedness.......................................................................26
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Section 2.13. Optional Prepayments...........................................................................27
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Section 2.14. Interest on Loans..............................................................................27
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Section 2.15. Fees...........................................................................................28
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Section 2.16. Computation of Interest and Fees...............................................................29
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Section 2.17. Inability to Determine Interest Rates..........................................................29
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Section 2.18. Illegality.....................................................................................30
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Section 2.19. Increased Costs................................................................................30
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Section 2.20. Funding Indemnity..............................................................................31
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Section 2.21 Taxes..........................................................................................32
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Section 2.22. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....................................34
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Section 2.23. Mitigation of Obligations......................................................................35
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Section 2.24 Extension of Commitments.......................................................................36
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ARTICLE III. CONDITIONS PRECEDENT TO LOANS .................................................................37
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Section 3.1. Conditions of Effectiveness....................................................................37
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Section 3.2. Each Credit Event..............................................................................40
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Section 3.3. Delivery of Documents..........................................................................40
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ARTICLE IV. REPRESENTATIONS AND WARRANTIES.................................................................40
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Section 4.1. Existence; Power...............................................................................40
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Section 4.2. Organizational Power; Authorization............................................................40
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Section 4.3. Governmental Approvals; No Conflicts...........................................................41
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Section 4.4. Financial Statements...........................................................................41
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Section 4.5. Litigation and Environmental Matters...........................................................41
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Section 4.6. Compliance with Laws and Agreements............................................................42
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Section 4.7. Investment Company Act, Etc....................................................................42
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Section 4.8. Taxes..........................................................................................42
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Section 4.9. Margin Regulations.............................................................................42
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Section 4.10. ERISA..........................................................................................42
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Section 4.11. Ownership of Property..........................................................................43
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Section 4.12. Disclosure.....................................................................................43
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Section 4.13. Labor Relations................................................................................43
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Section 4.14. Subsidiaries...................................................................................43
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Section 4.15. Spin-off.......................................................................................43
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Section 4.16. Indebtedness at Funding Date...................................................................44
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ARTICLE V. AFFIRMATIVE COVENANTS..........................................................................44
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Section 5.1. Financial Statements and Other Information.....................................................44
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Section 5.2. Notices of Material Events.....................................................................45
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Section 5.3. Existence; Conduct of Business.................................................................46
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Section 5.4. Compliance with Laws, Etc......................................................................46
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Section 5.5. Payment of Obligations.........................................................................46
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Section 5.6. Books and Records..............................................................................46
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Section 5.7. Visitation, Inspection, Etc....................................................................47
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Section 5.8. Maintenance of Properties; Insurance...........................................................47
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Section 5.9. Use of Proceeds................................................................................47
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Section 5.10. Additional Subsidiaries; Release...............................................................47
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Section 5.11. Consummation of Spin-off.......................................................................48
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ARTICLE VI. FINANCIAL COVENANTS............................................................................48
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Section 6.1. Leverage Ratio.................................................................................48
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Section 6.2. Fixed Charge Coverage Ratio....................................................................48
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ARTICLE VII. NEGATIVE COVENANTS.............................................................................48
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Section 7.1. Subsidiary Indebtedness........................................................................48
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Section 7.2. Negative Pledge................................................................................49
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Section 7.3. Fundamental Changes............................................................................50
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Section 7.4. Investments, Loans, Acquisitions, Etc..........................................................51
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Section 7.5. Restricted Payments............................................................................51
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Section 7.6. Sale of Assets.................................................................................52
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Section 7.7. Transactions with Affiliates...................................................................52
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Section 7.8. Restrictive Agreements.........................................................................53
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Section 7.9. Hedging Agreements.............................................................................53
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Section 7.10. Amendment to Material Documents................................................................53
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Section 7.11. Accounting Changes.............................................................................54
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Section 7.12. Indebtedness During Transition Period..........................................................54
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ARTICLE VIII. EVENTS OF DEFAULT..............................................................................54
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Section 8.1. Events of Default..............................................................................54
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ARTICLE IX. THE ADMINISTRATIVE AGENT.......................................................................56
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Section 9.1. Appointment of Administrative Agent............................................................56
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Section 9.2. Nature of Duties of Administrative Agent.......................................................57
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Section 9.3. Lack of Reliance on the Administrative Agent...................................................57
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Section 9.4. Certain Rights of the Administrative Agent.....................................................58
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Section 9.5. Reliance by Administrative Agent...............................................................58
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Section 9.6. The Administrative Agent and its Individual Capacity...........................................58
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Section 9.7 Successor Administrative Agent.................................................................58
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Section 9.8 Additional Agencies; No Duties Imposed Upon Syndication Agents or Documentation Agents.........59
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ARTICLE X. MISCELLANEOUS..................................................................................59
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Section 10.1. Notices........................................................................................59
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Section 10.2. Waiver; Amendments.............................................................................61
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Section 10.3. Expenses; Indemnification......................................................................62
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Section 10.4. Successors and Assigns.........................................................................63
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Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.....................................65
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Section 10.6. Waiver of Jury Trial...........................................................................66
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Section 10.7. Right of Setoff................................................................................66
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Section 10.8. Counterparts; Integration......................................................................67
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Section 10.9. Survival.......................................................................................67
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Section 10.10. Severability...................................................................................67
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Section 10.11. Confidentiality................................................................................67
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Section 10.12. Interest Rate Limitation.......................................................................68
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Schedules
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Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 4.16 - Funding Date Indebtedness
Schedule 7.1 - Outstanding Spin-Off Closing Date Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule I-D - To the Subsidiary Guaranty Agreement
Schedule I-E - To the Indemnity, Subrogation and Contribution
Agreement
Schedule I-E- - To Supplement No.___ to the Indemnity, Subrogation
and Contribution Agreement
Annex I-D - To the Subsidiary Guaranty Agreement
Annex I-E - To the Indemnity, Subrogation and Contribution
Agreement
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Exhibits
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Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Competitive Bid Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit F-1 - Form of Opinion of Counsel to Loan Parties
Exhibit F-2 - Form of Opinion of the General Counsel of Loan
Parties
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.6-A - Form of Competitive Bid Request
Exhibit 2.6-B - Form of Notice to Lenders of Competitive Bid
Request
Exhibit 2.6-C - Form of Competitive Bid
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
and 3.1(b)(vii)
Exhibit 3.1(b)(ix) - Form of Officer's Certificate
v
AMENDED AND RESTATED 364-DAY
REVOLVING CREDIT AGREEMENT
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THIS AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of July 6, 2001, by and among CERTEGY
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INC., a Georgia corporation (the "Borrower"), the several banks and other
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financial institutions from time to time party hereto (the "Lenders"), WACHOVIA
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BANK, N.A., as Co-Syndication Agent , FLEET NATIONAL BANK, as Co-Syndication
Agent (Wachovia, N.A. and Fleet National Bank, collectively, the "Co-Syndication
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Agents", and each individually, a "Co-Syndication Agent"), BANK OF AMERICA,
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N.A., as Documentation Agent (the "Documentation Agent") and SUNTRUST BANK, in
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its capacity as Administrative Agent for the Lenders (the "Administrative
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Agent").
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W I T N E S S E T H:
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WHEREAS, pursuant to that certain 364 Day Revolving Credit
Agreement dated as of June 25, 2001 among the Borrower and SunTrust Bank
("SunTrust") as Lender and Administrative Agent (the "Prior Credit Agreement"),
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SunTrust established a $100,000,000 revolving credit facility in favor of the
Borrower;
WHEREAS, the Borrower, SunTrust and the Administrative Agent
have agreed to amend and restate the Prior Credit Agreement in its entirety on
the terms and subject to the conditions set forth in this Agreement to, among
other things, join the Lenders as a party to this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
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Section 1.1. Definitions. In addition to the other terms
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defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"Acquisition" shall mean any acquisition, whether by stock
purchase, asset purchase, merger, consolidation or otherwise of a Person or a
business line of a Person.
"Adjusted LIBOR" shall mean, with respect to each Interest
Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR Rate for such Interest Period by (ii) 1.00 minus the Statutory Reserve
Rate.
"Administrative Agent" shall have the meaning assigned to such
term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form provided by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Aggregate Revolving Commitments" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the Funding
Date, the Aggregate Revolving Commitments equal $100,000,000.
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean, as of any date, with respect
to all Revolving Loans outstanding on any date, the percentage designated in the
"Pricing Grid" attached hereto as Schedule I based on the Borrower's Senior Debt
Ratings in effect on such date with respect to Eurodollar Loans or Base Rate
Loans, as the case may be. A change in the Applicable Margin resulting from a
change in the Senior Debt Ratings shall be effective on the day on which the
Rating Agency which has the highest Senior Debt Rating changes the Senior Debt
Ratings and which shall continue until the day prior to the day that further
changes become effective.
"Applicable Percentage" shall mean, at any date, with respect
to the facility fee as of any date, the percentage designated in the "Pricing
Grid" attached hereto as Schedule I based on the Borrower's Senior Debt Ratings
in effect on such date with respect to the facility fee. A change in the
Applicable Percentage resulting from a change in the Senior Debt Ratings shall
be effective on the day on which the Rating Agency which has the highest Senior
Debt Rating changes the Senior Debt Ratings and which shall continue until the
day prior to the day that further changes become effective.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
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Administrative Agent, in the form of Exhibit C attached hereto or any other form
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approved by the Administrative Agent.
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"Availability Period" shall mean the period from the Funding
Date to the Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate
which the Administrative Agent publicly announces from time to time to be its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of Loans of the
same Class and Type, made, converted or continued on the same date and in the
case of Eurodollar Loans, as to which a single Interest Period is in effect.
"Business Day" shall mean any day other than a Saturday or
Sunday on which banks are not authorized or required to close in Atlanta,
Georgia or New York, New York and, if the applicable Business Day relates to the
advance or continuation of, conversion into, or payment on a Eurodollar
Borrowing or a Competitive Bid Borrowing on which banks are dealing in Dollar
deposits, in the interbank eurodollar market in London, England.
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence after the
Spin-off Closing Date of one or more of the following events: (a) any sale,
lease, exchange or other transfer (in a single transaction or a series of
related transactions) of all or substantially all of the assets of the Borrower
to any Person or "group" (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder in
effect on the date hereof), (b) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or "group" (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) of 30% or
more of the outstanding shares of the voting stock of the Borrower; or (c)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the
current board of directors (as in effect immediately after the consummation of
the Spin-off) or (ii) appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any applicable
law, rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation,
3
or any change in the interpretation or application thereof, by any Governmental
Authority after the date of this Agreement, or (iii) compliance by any Lender
(or its Applicable Lending Office) (or for purposes of Section 2.19(b), by such
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Lender's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Bid Loans.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment" shall mean a Revolving Commitment.
"Commitment Termination Date" shall mean the earliest of (i)
June 23, 2002, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.10 and (iii) the date on which all amounts outstanding
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under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Bid Loan substantially in the form of Exhibit 2.6-C, to be delivered
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by a Lender to the Administrative Agent in response to a Competitive Bid
Request.
"Competitive Bid Loan" shall mean a Loan made pursuant to
Section 2.6.
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"Competitive Bid Margin" shall mean with respect to any
Competitive Bid Loan bearing interest at a rate based on the Adjusted LIBOR, the
marginal rate of interest, if any, to be added to or subtracted from the
Adjusted LIBOR to determine the rate of interest applicable to such Competitive
Bid Loan, as specified by the Lender in its related Competitive Bid.
"Competitive Bid Note" shall mean a promissory note of the
Borrower payable to the order of any requesting Lender in the principal amount
of the Aggregate Revolving Commitments, in substantially the form of Exhibit B.
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"Competitive Bid Rate" shall mean, with respect to any
Competitive Bid, the Competitive Bid Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request for a proposed
Fixed Rate or a Competitive Bid Margin at which a Competitive Bid Loan may be
made, substantially in the form of Exhibit 2.6-A submitted by the Borrower to
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the Administrative Agent in accordance with Section 2.6.
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"Consolidated EBIT" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the
4
extent deducted in determining Consolidated Net Income for such period, (i)
Consolidated Interest Expense, (ii) income tax expense and (iii) all other
non-cash charges (and minus all other non-cash gains), determined on a
consolidated basis in accordance with GAAP in each case for such period.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense, (iii) depreciation and amortization and (iv) all other
non-cash charges (and minus all other non-cash gains), determined on a
consolidated basis in accordance with GAAP in each case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Lease Expense.
"Consolidated Fixed Charges" shall mean, for the Borrower and
its Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period and (b) Consolidated Lease Expense
for such period.
"Consolidated Interest Expense" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"Consolidated Lease Expense" shall mean, for any period, the
aggregate amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets, (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person's
assets are acquired by the Borrower or any Subsidiary.
"Consolidated Subsidiary" shall mean, at any date, any Person
that, in accordance with GAAP, would be consolidated in the Borrower's
consolidated financial statements on such date.
"Consolidated Total Assets" shall mean, at any time, the total
assets of the Borrower
5
and its Consolidated Subsidiaries, determined on a consolidated basis, in
accordance with GAAP.
"Consolidated Total Debt" shall mean, at any time, without
duplication, the sum of (i) all then currently outstanding obligations,
liabilities and indebtedness of the Borrower and its Subsidiaries on a
consolidated basis of the types described in the definition of Indebtedness
(other than the type described in clause (xi) of the definition thereof),
including, but not limited to, all obligations under the Loan Documents plus
(ii) all Indebtedness of any Permitted Securitization Subsidiary.
"Control" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"Default" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"Default Interest" shall have the meaning set forth in Section
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2.14(d).
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"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Dollar(s)" and the sign "$" shall mean lawful money of the
United States of America.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent
or otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equifax" shall mean Equifax Inc., a Georgia corporation.
6
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived and other than an event triggered by the Spin-off); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing
(including any Competitive Bid Loan or Borrowing), refers to whether such Loan,
or the Loans comprising such Borrowing, bears interest at a rate determined by
reference to (i) in the case of a Revolving Loan or Revolving Borrowing, the
Adjusted LIBOR and the Applicable Margin, or (ii) in the case of a Competitive
Bid Loan or Competitive Bid Borrowing, the Adjusted LIBOR and the Competitive
Bid Margin.
"Event of Default" shall have the meaning provided in Article
VIII.
"Excluded Taxes" shall mean with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which any of its offices is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender, any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.21(e), except to the extent
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that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending
7
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.21(a).
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"Execution Date" shall mean June 25, 2001, the date on which
the Prior Credit Agreement was executed.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDAR for such period to (b) Consolidated Fixed Charges for such period;
provided, however, that for any fiscal quarter ending prior to the Spin-off
- -------- -------
Closing Date relevant to the calculation of this ratio, pro forma effect shall
be given to the Spin-off.
"Fixed Rate" shall mean, with respect to any Competitive Bid
Loan (other than a Eurodollar Competitive Bid Loan ), the fixed rate of interest
per annum specified by any Lender making such Competitive Bid Loan in its
related Competitive Bid.
"Foreign Lender" shall mean any Lender that is organized under
the laws of a jurisdiction other than that of the Borrower. For purposes of this
definition, the United States of America or any political subdivision thereof
shall constitute one jurisdiction.
"Foreign Subsidiary" shall mean any direct or indirect
Subsidiary of the Borrower that is organized under the laws of a jurisdiction
other than the United States of America or any political subdivision thereof.
"Form 10 Filing" shall mean the registration statement on Form
10 filed by the Borrower with the Securities and Exchange Commission in respect
of the Spin-off on April 3, 2001, as amended on May 18, 2001 and June 11, 2001.
"Funding Date" shall mean the first day on which all of the
conditions precedent set forth in Section 3.1 and Section 3.2 have been
----------- -----------
satisfied or waived in accordance with Section 10.2; provided, however, that in
------------ -------- -------
the event the Funding Date does not occur on or before July 31, 2001, all of the
Commitments shall automatically terminate.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
- -----------
8
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean
any legally binding obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly and including any obligation, direct or indirect,
of the guarantor (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term
--------
"Guarantee" shall not include endorsements for collection or deposits in the
ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and other
similar agreements or arrangements designed to protect against fluctuations in
interest rates, currency values, stock values or commodity values.
"Indebtedness" of any Person shall mean, without duplication
(i) obligations of such Person for borrowed money, (ii) obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations of such Person in respect of the deferred purchase price of property
or services (other than trade payables incurred in the ordinary course of
business on terms customary in the trade), (iv) obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) Capital Lease Obligations of such Person, (vi)
obligations, contingent or otherwise, of such Person in respect of letters of
credit, acceptances or similar extensions of credit, (vii) guaranties by such
Person of the type of indebtedness described in clauses (i) through (v) above,
(viii) all indebtedness of a third party
9
secured by any Lien on property owned by such Person, whether or not such
indebtedness has been assumed by such Person, (ix) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, (x) off-balance sheet
liability retained in connection with asset securitization programs, Synthetic
Leases, sale and leaseback transactions or other similar obligations arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheet of such Person and its Subsidiaries, and (xi)
obligations of such Person under any interest rate Hedging Agreement or foreign
exchange Hedging Agreement. For purposes of determining Indebtedness under
clause (xi) the obligations of any Person in respect to any Hedging Agreement or
foreign exchange Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that such Person would be
required to pay if such Hedging Agreement were terminated at such time.
"Indemnified Taxes" shall mean Taxes imposed upon any payment
made by the Borrower or any other Loan Party to any Lender under any Loan
Document other than Excluded Taxes.
"Indemnity and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Subsidiary Loan Parties and the
- ---------
Administrative Agent.
"Information Statement" shall mean that certain Preliminary
Information Statement filed as Exhibit 99.1 to the Form 10 Filing.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated June, 2001 relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"Interest Period" shall mean (i) with respect to any
Eurodollar Borrowing, a period of one, two, three or six months and (ii) with
respect to a Competitive Bid Fixed Rate Borrowing, a period of at least seven
days but not more than 180 days as requested by the Borrower and agreed to by
the Lender making such Competitive Bid Fixed Rate Loan; provided, that:
--------
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless, in the case of a Eurodollar
Borrowing, such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;
10
(iii) any Interest Period in respect of a Eurodollar Borrowing
which begins on the last Business Day of a calendar month or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period shall end on the last Business
Day of such calendar month; and
(iv) no Interest Period may extend beyond the Commitment
Termination Date.
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement.
"Lender Default" shall mean (a) the failure (which has not
been cured) of any Lender to make available its portion of any Borrowing or (b)
a Lender having notified the Administrative Agent and/or the Borrower that it
does not intend to comply with the obligations under Sections 2.2, and 2.5.
------------ ---
"Leverage Ratio" shall mean, as of any date of determination
with respect to the Borrower, the ratio of (i) Consolidated Total Debt as of
such date to (ii) Consolidated EBITDA for the four fiscal quarters then ending;
provided, however, that for any fiscal quarter ending prior to the Spin-off
- -------- -------
Closing Date relevant to the calculation of this ratio, pro forma effect shall
be given to the Spin-off.
"LIBOR Rate" shall mean, for any applicable Interest Period
for each Eurodollar Borrowing, the rate per annum quoted at or about 11:00 a.m.
(London, England time) two Business Days before the commencement of such
Interest Period on that page of the Reuters, Telerate or Bloombergs reporting
service (as then being used by the Administrative Agent to obtain such interest
rate quotes) that displays British Bankers' Association interest settlement
rates for deposits of such Eurodollar Borrowing, or if such page or such service
shall cease to be available, such other page or other service (as the case may
be) for the purpose of displaying British Bankers' Association interest
settlement rates as reasonably determined by the Administrative Agent upon
advising the Borrower as to the use of any such service. If for any reason any
such interest settlement rate for such Interest Period is not available to the
Administrative Agent through any such interest rate reporting service, then the
"LIBOR Rate" with respect to such Eurodollar Borrowing will be the rate at which
the Administrative Agent is offered deposits of $5,000,000 for a period
approximately equal to such Interest Period in the London interbank market at
10:00 a.m. two Business Days before the commencement of such Interest Period.
"Lien" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
11
"Loan Documents" shall mean, collectively, this Agreement, the
Notes (if any), all Notices of Borrowing, the Subsidiary Guaranty Agreement, the
Indemnity and Contribution Agreement, and any and all other instruments,
agreements, documents and writings executed in connection with any of the
foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Competitive Bid
Loans in the aggregate or any of them, as the context shall require.
"Margin Regulations" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"Material Adverse Effect" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets or liabilities of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any Subsidiary to perform any of their respective obligations under
the Loan Documents, (iii) the rights and remedies of the Agent and the Lenders
under any of the Loan Documents or (iv) the legality, validity or enforceability
of any of the Loan Documents.
"Material Subsidiary" shall mean at any time any direct or
indirect Subsidiary of the Borrower having: (a) assets in an amount equal to at
least 5% of the total assets of the Borrower and its Subsidiaries determined on
a consolidated basis as of the last day of the most recent fiscal quarter of the
Borrower at such time; or (b) revenues or net income in an amount equal to at
least 5% of the total revenues or net income of the Borrower and its
Subsidiaries on a consolidated basis for the 12-month period ending on the last
day of the most recent fiscal quarter of the Borrower at such time.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Competitive Bid Notes.
"Notices of Borrowing" shall mean, collectively, the Notices
of Revolving Borrowing and the Competitive Bid Requests.
12
"Notice of Conversion/Continuation" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.9(b)
--------------
hereof.
"Notice of Revolving Borrowing" shall have the meaning as set
forth in Section 2.3.
-----------
"Obligations" shall mean all amounts owing by the Borrower to
the Administrative Agent or any Lender pursuant to or in connection with this
Agreement or any other Loan Document, including without limitation, all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs
and expenses (including all actual and reasonable fees and expenses of counsel
to the Administrative Agent and any Lender incurred pursuant to this Agreement
or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications or
refinancings thereof.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from the execution, delivery or enforcement of this Agreement or
any other Loan Document.
"Participant" shall have the meaning set forth in Section
-------
10.4(c).
- -------
"Payment Office" shall mean the office of the Administrative
Agent located at 303 Peachtree Street, N.E., 25th Floor, Atlanta, Georgia 30308,
or such other location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Acquisitions" shall mean any Acquisition so long as
(a) at the time of such Acquisition, no Default or Event of Default is in
existence or would result therefrom, (b) such acquisition has been approved or
recommended by the board of directors of the Person being acquired and (c) the
Total Acquisition Consideration of such Acquisition, when aggregated with the
Total Acquisition Consideration of all Acquisitions consummated by the Borrower
and its Consolidated Subsidiaries during the preceding 12 month period does not
exceed $100,000,000.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
13
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness for borrowed money.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or Moody's and in either case maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
14
(iv) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (i) above
and entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"Permitted Securitization Subsidiary" shall mean any
Subsidiary of the Borrower that (i) is directly or indirectly wholly-owned by
the Borrower, (ii) is formed and operated solely for purposes of a Permitted
Securitization Transaction, (iii) has organizational documents which limit the
permitted activities of such Permitted Securitization Subsidiary to the
acquisition of accounts receivable and related rights from the Borrower or one
or more of its Consolidated Subsidiaries or another Permitted Securitization
Subsidiary, the securitization or other financing of such accounts receivable
and related rights and activities necessary or incidental to the foregoing and
(iv) such Permitted Securitization Subsidiary shall at all times be subject to
each of the following: (A) it shall have at least one (1) member, manager,
director or other similar person whose affirmative vote is required to permit
such person to file a voluntary bankruptcy proceeding or to amend its formation
documents, which member, manager, director or other similar person is not
affiliated with the Borrower or any of its Consolidated Subsidiaries or a
current or prior officer, director or employee of any of them, (B) it shall not
be permitted to incur any Indebtedness other than the Indebtedness related to
the Permitted Securitization Transaction, unless such Indebtedness is
non-recourse to such Permitted Securitization Subsidiary and is subordinated to
the Indebtedness incurred in connection with the Permitted Securitization
Transaction, (C) it will not be permitted to merge or consolidate with any
person other than another Permitted Securitization Subsidiary and (D) its
formation documents shall contain and it shall be subject to such restrictive
covenants relating to its operations as shall be required by independent counsel
in order for such counsel to deliver a reasoned, market-standard
"non-consolidation" opinion.
"Permitted Securitization Transaction" shall mean the transfer
by Borrower or one or more of its Consolidated Subsidiaries of receivables and
rights related thereto to one or more Permitted Securitization Subsidiaries and
the related financing of such receivables and rights related thereto; provided
--------
that (i) such transaction is non-recourse to Borrower and its Consolidated
Subsidiaries (excluding any related Permitted Securitization Subsidiary), except
for Standard Securitization Undertakings and (ii) the aggregate total amount of
all Indebtedness outstanding to third parties under all Permitted Securitization
Transactions shall not exceed $120,000,000 in the aggregate outstanding at any
time.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
15
"Prior Credit Agreement" shall have the meaning in the first
recital hereof.
"Pro Rata Share" shall mean, with respect to any Lender at any
time, a percentage, the numerator of which shall be the sum of such Lender's
Revolving Commitment and the denominator of which shall be the sum of all
Lenders' Revolving Commitments; or if the Revolving Commitments have been
terminated or expired or if the Loans have been declared to be due and payable,
a percentage, the numerator of which shall be the sum of such Lender's Revolving
Credit Exposure and outstanding Competitive Bid Loans and the denominator of
which shall be the sum of the aggregate Revolving Credit Exposure and the
aggregate outstanding Competitive Bid Loans of all Lenders.
"Rating Agencies" shall mean Moody's and S&P.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Non-Defaulting
Lenders holding more than 50% of the aggregate outstanding Revolving Credit
Exposures of all Non-Defaulting Lenders at such time or if the Non-Defaulting
Lenders have no Revolving Credit Exposure outstanding, then Non-Defaulting
Lenders holding more than 50% of the Aggregate Revolving Commitments of all
Non-Defaulting Lenders; provided, that, for purposes of declaring the Loans to
--------
be due and payable pursuant to Article VIII and for all purposes after the Loans
become due and payable pursuant to Article VIII or the Revolving Commitments
expire or terminate, the outstanding Competitive Bid Loans of a Lender shall be
added to its Revolving Credit Exposure in determining the Required Lenders.
"Responsible Officer" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer, controller or a vice president of the Borrower or such
other representative of the Borrower as may be designated in writing by any one
of the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer of
the Borrower.
"Restricted Investment" shall mean Investments in joint
ventures and in Subsidiaries which are not Consolidated Subsidiaries.
16
"Restricted Payment" shall have the meaning set forth in
Section 7.5.
- -----------
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower in
an aggregate principal amount not exceeding the amount set forth with respect to
such Lender on the signature pages to this Agreement, or in the case of a Person
becoming a Lender after the Funding Date, the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance Agreement executed by
such Person as an assignee, as the same may be changed pursuant to the terms
hereof.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the outstanding principal amount of such Lender's Revolving
Loans.
"Revolving Credit Note" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving Commitment, in substantially the form of Exhibit A.
---------
"Revolving Loan" shall mean a loan made by a Lender to the
Borrower under its Revolving Commitment, which may be either a Base Rate Loan or
a Eurodollar Loan.
"Senior Debt Rating" shall mean the credit ratings (including
indicative ratings if no actual debt has been rated) assigned from time to time
by either of the Rating Agencies to the senior, unsecured long-term debt
securities of the Borrower without third-party credit enhancement, whether or
not any such debt securities are actually outstanding, and any rating assigned
to any other debt security of the Borrower shall be disregarded. The rating in
effect on any date is that in effect at the close of business on such date. If
the Borrower is split-rated and (i) the ratings differential is one category,
the higher of the two ratings will apply or (ii) the ratings differential is
more than one category, the rate shall be determined by reference to the
category next above that of the lower of the two ratings. If the Borrower is
rated neither by Moody's nor S&P, then the applicable rate shall be established
by reference to Level IV as set forth in the "Pricing Grid" attached hereto as
Schedule I. If the rating system of Moody's and S&P shall change, or if Moody's
and S&P shall cease to be in the business of rating corporate debt obligations,
the Borrower, the Lenders and the Administrative Agent shall negotiate in good
faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Margin and the Applicable Percentage shall
be determined by reference to the rating most recently in effect prior to any
such change or cessation. If after a reasonable time the parties cannot agree to
a mutually acceptable amendment, the applicable rate shall be determined by
reference to Level IV as set forth in the "Pricing Grid" attached hereto as
Schedule I.
"Spin-off" means the distribution by Equifax on a tax-free
basis of all of the shares of the Borrower's common stock to Equifax's
shareholders pursuant to a pro rata distribution to all shareholders, except
shareholders who waive their rights to such distribution and except to the
extent of fractional shares.
"Spin-off Closing Date" shall mean the date on which the
Spin-off occurs.
17
"Spin-off Payment" means a cash payment payable to Equifax in
the amount of $275,000,000 as further described in the Form 10 Filing , to be
paid to Equifax immediately prior to the Spin-off.
"S&P" shall mean Standard & Poor's.
"Standard Securitization Undertakings" shall mean any
obligations and undertakings of the Borrower and any Consolidated Subsidiary
consisting of representations, warranties, covenants, and indeminities standard
in securitization transactions and related servicing of receivables.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the number 1 and the denominator of which is
the number 1 minus the aggregate of the maximum reserve, liquid asset or similar
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by any Governmental Authority of
the United States or any jurisdiction in which Loans in Dollars are made to
which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in Dollars or by reference to which
interest rates applicable to loans in Dollars are determined. Such reserve,
liquid asset or similar percentages shall include those imposed pursuant to
Regulation D of the Board of Governors of the Federal Reserve System. Eurodollar
Loans shall be deemed to be subject to such reserve requirements without benefit
of or credit for proration, exemptions or offsets that may be available from
time to time to any Lender under Regulation D or any other applicable law, rule
or regulation. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held.
Unless otherwise indicated, all references to "Subsidiary" hereunder shall mean
a Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary
Guaranty Agreement, substantially in the form of Exhibit D, made by the
---------
Subsidiary Loan Parties in favor of the Administrative Agent for the benefit of
the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary (other than
any Permitted Securitization Subsidiary) that is not a Foreign Subsidiary.
"Synthetic Lease" shall mean any synthetic lease, tax
retention operating lease or similar off-balance sheet financing product where
such transaction is considered borrowed money
18
indebtedness for tax purposes but is classified as an operating lease under
GAAP.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Total Acquisition Consideration" shall mean as at the date of
any Acquisition, the sum of the following without duplication: (i) the amount of
any cash and fair market value of other property given as consideration,
including at such date the deferred payment of any such amounts, (ii) the amount
(determined by using the outstanding amount or the amount payable at maturity,
whichever is greater) of any obligations for money borrowed incurred, assumed or
acquired by the Borrower or any Subsidiary in connection with such Acquisition,
(iii) all amounts paid in respect of covenants not to compete and consulting
agreements that should be recorded on the financial statements of the Borrower
and its Subsidiaries in accordance with GAAP, and (iv) the aggregate fair market
value of all other consideration given by the Borrower or any Subsidiary
(including any shares of capital stock of the Borrower or any Subsidiary) in
connection with such Acquisition.
"Type", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR or the Base Rate
(or, in the case of a Competitive Bid Loan or Borrowing, the Fixed Rate).
"Wholly-Owned Subsidiary" shall mean any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares, or, in the case of any Subsidiary which is not organized or
created under the laws of the United States of America or any political
subdivision thereof, such nominal ownership interests which are required to be
held by third parties under the laws of the foreign jurisdiction under which
such Subsidiary was incorporated or organized) are at the time directly or
indirectly owned by the Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For
---------------------------------------
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan" or "Competitive Bid Loan") or by Type (e.g. a
"Eurodollar Loan", "Base Rate Loan" or "Fixed Rate Loan") or by Class and Type
(e.g. "Revolving Eurodollar Loan"). Borrowings also may be classified and
referred to by Class (e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar
Borrowing") or by Class and Type (e.g. " Revolving Eurodollar Borrowing").
Section 1.3. Accounting Terms and Determination. Unless
----------------------------------
otherwise defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the Borrower delivered
19
pursuant to Section 5.1(a); provided, that if the Borrower notifies the
--------------
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Section 1.4. Terms Generally. The definitions of terms herein
---------------
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
Section 1.5. Amendment and Restatement. The parties hereto
-------------------------
acknowledge and agree that this Agreement (together with all Exhibits and
Schedules hereto) amends and restates the Prior Credit Agreement (together with
all Exhibits and Schedules thereto). Upon the effectiveness of this Agreement,
each of the Lenders party hereto shall have their respective Commitments as set
forth on the signature pages attached hereto.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1. General Description of Facilities. Subject to and
---------------------------------
upon the terms and conditions herein set forth, the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2 and to offer in their sole discretion to make
-----------
Competitive Bid Loans in accordance with Section 2.6; provided, that in no event
----------- --------
shall the aggregate principal amount of all
20
outstanding Revolving Loans and Competitive Bid Loans exceed at any time the
Aggregate Revolving Commitments from time to time in effect.
Section 2.2. Revolving Loans. Subject to the terms and
---------------
conditions set forth herein, each Lender severally agrees to make Revolving
Loans to the Borrower from time to time on any Business Day during the
Availability Period, in an aggregate principal amount outstanding at any time
that will not result in (a) such Lender's Revolving Credit Exposure (determined
in accordance with Section 10.14) exceeding such Lender's Revolving Commitment
-------------
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
(determined in accordance with Section 10.14) plus the aggregate principal
-------------
amount of all Competitive Bid Loans (determined in accordance with Section
-------
10.14) exceeding the Aggregate Revolving Commitments. During the Availability
- -----
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
--------
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default. Funding of any Revolving Loans shall be in any combination of
Dollars as specified by the Borrower as set forth in Section 2.3.
-----------
Section 2.3. Procedure for Revolving Borrowings.
----------------------------------
(a) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Revolving
Borrowing substantially in the form of Exhibit 2.3 attached hereto (a "Notice of
Revolving Borrowing") (x) prior to 12:00 noon one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to 12:00 noon three (3)
Business Days prior to the requested date of each Eurodollar Borrowing. Each
Notice of Revolving Borrowing shall be irrevocable and shall specify: , (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing, and (iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000. At no time shall the total number of
Eurodollar Borrowings outstanding at any time exceed ten. Promptly following the
receipt of a Notice of Revolving Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4. Intentionally Deleted.
---------------------
Section 2.5. Intentionally Deleted.
---------------------
Section 2.6. Competitive Bid Borrowings.
--------------------------
(a) Competitive Bid Option. Subject to the terms and
conditions set forth herein, from time to time during the Availability Period,
the Borrower may request the Lenders to submit
21
Competitive Bids. Each Lender may, but shall have no obligation to, make such
Competitive Bids, and the Borrower may, but shall have no obligation to, accept
any such Competitive Bids. At no time shall the number of Competitive Bid
Borrowings outstanding under this Section 2.6 exceed six in any case, and at no
-----------
time shall the sum of the aggregate principal amount of outstanding Competitive
Bid Loans plus the aggregate Revolving Credit Exposures of all Lenders exceed
the Aggregate Revolving Commitments. A Lender's Competitive Bid Loans shall not
be deemed to constitute usage of such Lender's Revolving Commitment.
(b) Competitive Bid Requests. The Borrower may request
Competitive Bids by delivering a duly completed Competitive Bid Request to the
Administrative Agent in writing (or by telephone, immediately confirmed in
writing), not later than 12:00 noon (x) one (1) Business Day prior to the
proposed date of the related Competitive Bid Fixed Rate Borrowing, or (y) three
(3) Business Days prior to the proposed date of the related Competitive Bid
Eurodollar Borrowing. Each Competitive Bid Request shall specify (i) the
proposed date of such Borrowing (which shall be a Business Day), (ii) the
aggregate amount of such Borrowing (which shall be in a minimum principal amount
of $5,000,000 or a larger multiple of $1,000,000) , (iii) if such Borrowing is a
Eurodollar Borrowing, the duration of the Interest Period or Interest Periods
applicable thereto (subject to the provisions of the definition of Interest
Period), and (iv) whether the Competitive Bids requested are to set forth a
Competitive Bid Margin or a Fixed Rate. A Competitive Bid Request which does not
conform substantially to the form of Exhibit 2.6-A may be rejected by the
-------------
Administrative Agent in its sole discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopy. The Borrower may
request Competitive Bids for up to three (3) different Interest Periods in each
Competitive Bid Request; provided, that the request for each separate Interest
--------
Period shall be deemed to be a separate Competitive Bid Request for a separate
Competitive Bid Borrowing. No Competitive Bid Request shall be given within five
(5) Business Days of any other Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Promptly after its receipt of a
Competitive Bid Request which is not rejected as aforesaid, the Administrative
Agent shall promptly notify each Lender the details thereof by telecopy,
inviting the Lenders to submit Competitive Bids, in a notice substantially
similar to the form of Exhibit 2.6-B.
-------------
(c) Competitive Bids.
(i) Each Lender may, but shall have no obligation to, submit
one or more Competitive Bids, each containing an irrevocable offer to make a
Competitive Bid Loan in response to a Competitive Bid Request; provided, that if
--------
the Borrower's Competitive Bid Request specified more than one Interest Period,
such Lender may make a single submission containing a separate offer for each
Interest Period and each such separate offer shall be deemed to be a separate
Competitive Bid. Each Competitive Bid by a Lender must be received by the
Administrative Agent by telecopy not later than (x) in the case of a Competitive
Bid Eurodollar Borrowing, 10:30 a.m. on the third Business Day prior to the
proposed date of Borrowing, and (y) in the case of an Competitive Bid Fixed Rate
Borrowing, 9:00 a.m. on the day of the proposed Borrowing; provided, that if the
--------
Administrative Agent (or any Affiliate of the Administrative Agent) elects to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to the Borrower at least 15 minutes prior to the
deadline for the other Lenders.
22
(ii) Each Competitive Bid shall specify (A) the principal
amount (which shall be a minimum principal amount of $5,000,000 or a larger
multiple of $1,000,000) of each Competitive Bid Loan and the Interest Period
applicable thereto and the aggregate principal amount of all Competitive Bid
Loans for all Interest Periods (which principal amount may be greater than the
Revolving Commitment of such Lender but which may not exceed the aggregate
principal amount of Competitive Bid Loans for each Interest Period for which
Competitive Bid Requests were requested) and (B) the Competitive Bid Rate or
Rates at which such Lender is prepared to make such Loan or Loans (expressed as
a percentage rate per annum in the form of a decimal to no more than four
decimal places). Competitive Bids that do not conform substantially to Exhibit
-------
2.6-C may be rejected by the Administrative Agent, and the Administrative Agent
- -----
shall notify the applicable Lender as promptly as possible.
(iii) No Competitive Bid shall contain qualifying, conditional
or similar language or propose terms other than or in addition to those set
forth in the applicable Competitive Bid Request, and in particular, no
Competitive Bid may be conditioned upon the acceptance by the Borrower of all
(or some specified minimum) of the principal amount of the Competitive Bid Loan
for which the Competitive Bid was made.
(iv) After the Competitive Bids have been submitted, the
Administrative Agent shall promptly notify by telecopy the Borrower of (A) the
aggregate principal amount of the Competitive Bid Borrowing for which offers
have been received and (B) the principal amounts and Competitive Bid Rates so
offered by each Lender (and the identity of such Lender).
(d) Acceptance by Borrower. Subject only to the provisions
of this paragraph, the Borrower may accept or reject any Competitive Bid. The
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of a
Eurodollar Competitive Bid Borrowing, not later than 12:30 p.m. three Business
Days before the date of the proposed Competitive Bid Borrowing, and in the case
of a Fixed Rate Borrowing, not later than 11:00 a.m. on the proposed date of the
Competitive Bid Borrowing; provided, that (i) the failure of the Borrower to
--------
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive Bid
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Bid Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided, further,
-------- -------
that if a Competitive Bid Loan must be in an amount less than $5,000,000 because
of the provisions of clause (iv) above, such Competitive Bid Loan may be for a
minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple Competitive Bids at a
23
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify by
telecopy each Lender that made a Competitive Bid whether its Competitive Bid was
accepted (and if so, the amount and the Competitive Bid Rate so accepted), and
each successful bidding Lender will thereupon become bound, subject to the terms
and conditions hereof, to make the Competitive Bid Loan in respect of which its
Competitive Bid was accepted. Upon determination by the Administrative Agent of
the Adjusted LIBOR applicable to any Competitive Bid Eurodollar Borrowing, to be
made by a Lender pursuant to a Competitive Bid which has been accepted, the
Administrative Agent shall notify the Borrower and such Lender of such
applicable Adjusted LIBOR. With respect to Competitive Bid Eurodollar Loans,
each such Lender shall, not later than 11:00 a. m. on the date specified for the
making of such Competitive Bid Loan, make the amount of such Loan available to
the Administrative Agent at the Payment Office in immediately available funds
for the account of the Borrower and the amount so received by the Administrative
Agent shall be made available to the Borrower in immediately available funds at
the account specified by the Borrower to the Administrative Agent not later than
1:00 p.m. on such date. The amount so received by the Administrative Agent shall
be made available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 p.m. at the account specified
by the Borrower to the Administrative Agent
Section 2.7. Intentionally Deleted.
---------------------
Section 2.8. Funding of Borrowings.
---------------------
(a) Each Lender will make available each Borrowing in
Dollars of Eurodollar Loans and Competitive Bid Fixed Rate Loans to be made by
it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. to the Administrative Agent at the Payment Office.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at a rate per annum equal to the
Administrative Agent's cost of funds for such amount for up to two (2) days and
thereafter at the rate
24
specified for such Borrowing. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent together
with interest at the rate specified for such Borrowing. Nothing in this
subsection shall be deemed to relieve any Lender from its obligation to fund its
Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.9. Interest Elections; Conversions; Continuations.
----------------------------------------------
(a) Each Borrowing initially shall be of the Type specified
in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing (subject to satisfaction of any
conditions applicable to Borrowings of that Type), and in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding Loans comprising such Borrowing, and
the Loans comprising each such portion shall be considered a separate Borrowing.
This Section 2.9 shall NOT apply to Competitive Bid Borrowings which may not be
-----------
converted or continued.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "Notice of
Conversion/Continuation") that is to be converted or continued, as the case may
be, (x) prior to 12:00 noon one (1) Business Day prior to the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 12:00 noon three (3)
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
duration of the Interest Period applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of "Interest
Period". If any such Notice of Continuation/Conversion requests a Eurodollar
Borrowing but does not specify an Interest Period, the Borrower shall be deemed
to have selected an Interest Period of one month. The principal amount of any
resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
-----------
25
(c) If, on the expiration of any Interest Period in respect
of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice
of Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,
the Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
Section 2.10. Optional Reduction and Termination of
-------------------------------------
Commitments.
- -----------
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial reduction shall
--------
apply to reduce proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.10 shall be in an
------------
amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii)
no such reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders (determined in accordance with Section 10.14) plus the outstanding
-------------
principal amount of all Competitive Bid Loans (determined in accordance with
Section 10.14).
- -------------
Section 2.11. Repayment of Loans.
------------------
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon) on
the Commitment Termination Date.
(b) The principal amount of each Competitive Bid Borrowing
shall be due and payable (together with accrued and unpaid interest thereon) on
the earlier of (i) the last day of the Interest Period applicable to such
Borrowing and (ii) the Commitment Termination Date.
(c) On each date on which the Aggregate Revolving
Commitments are reduced pursuant to Section 2.10, the Borrower shall repay or
------------
prepay such principal amount of the outstanding Loans, if any (together with
interest accrued thereon), as may be necessary so that after such repayment or
payment the aggregate outstanding Revolving Loans (determined in accordance with
Section 10.14) do not exceed the Aggregate Revolving Commitments as then
- -------------
reduced.
26
Section 2.12. Evidence of Indebtedness. (a) Each Lender shall
------------------------
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.9, (iv) the date of each conversion of all or a portion thereof to
-----------
another Type pursuant to Section 2.9, (v) the date and amount of any principal
-----------
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
--------
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender at any time, the Borrower
agrees that it will execute and deliver to such Lender a Revolving Credit Note
and/or a Competitive Bid Note, payable to the order of such Lender.
Section 2.13. Optional Prepayments.
--------------------
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, by giving irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent no later than (i) in the case
of prepayment of any Eurodollar Borrowing, 12:00 noon not less than three (3)
Business Days prior to any such prepayment and (ii) in the case of any
prepayment of any Base Rate Borrowing, not less than one Business Day prior to
the date of such prepayment. Each such notice shall be irrevocable and shall
specify the proposed date of such prepayment and the principal amount of each
Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.14(e); provided,
--------------- --------
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.20. Each partial prepayment of any Loan shall be
------------
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to Section 2.3. Each prepayment of a
-----------
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
(b) The Borrower may not prepay any Competitive Bid Loan
except with the prior written consent of the affected Lender.
27
Section 2.14. Interest on Loans.
-----------------
(a) The Borrower shall pay interest (i) on each Base Rate
Loan at the Base Rate in effect from time to time, and (ii) on each Eurodollar
Loan at the Adjusted LIBOR for the applicable Interest Period in effect for such
Loan, plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest (i) on each Competitive
Bid Eurodollar Loan at the Adjusted LIBOR for the applicable Interest Period in
effect for such Loan, plus (or minus) the Competitive Bid Margin quoted by the
Lender making such Loan pursuant to Section 2.6(c) and accepted by the Borrower
--------------
pursuant to Section 2.6(d), and (ii) on each Competitive Bid Fixed Rate Loan, at
--------------
the Fixed Rate quoted by the Lender making such Loan pursuant to Section 2.6(c)
--------------
and accepted by the Borrower pursuant to Section 2.6(d).
--------------
(c) While an Event of Default exists or after acceleration,
at the option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans and Competitive Bid Fixed Rate
Loans at the rate otherwise applicable for the then-current Interest Period plus
an additional 2% per annum until the last day of such Interest Period, and
thereafter, and with respect to all Base Rate Loans and all other Obligations
hereunder (other than Loans), at an all-in rate in effect for Base Rate Loans,
plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the date
of any repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Commitment Termination Date. Interest on all outstanding
Eurodollar Loans and all outstanding Competitive Bid Fixed Rate Loans shall be
payable on the last day of each Interest Period applicable thereto, and, in the
case of any Eurodollar Loans and Competitive Bid Fixed Rate Loans having an
Interest Period in excess of three months or 90 days, respectively, on each day
which occurs every three months or 90 days, as the case may be, after the
initial date of such Interest Period, and on the Commitment Termination.
Interest on any Loan which is converted into a Loan of another Type or which is
repaid or prepaid shall be payable on the date of such conversion or on the date
of any such repayment or prepayment (on the amount repaid or prepaid) thereof.
All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.15. Fees.
----
(a) The Borrower shall pay to the Administrative Agent for
its own account fees in the amounts and at the times previously agreed upon by
the Borrower and the Administrative Agent.
28
(b) Facility Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Percentage (determined daily in accordance with
Schedule I) on the daily amount of the Revolving Commitment (whether used or
unused) of such Lender from the Execution Date through the Commitment
Termination Date; provided, that if such Lender continues to have any Revolving
--------
Credit Exposure after the Commitment Termination Date, then the facility fee
shall continue to accrue from and after the Commitment Termination Date to the
date that all of such Lender's Revolving Credit Exposure has been paid in full.
Accrued facility fees shall be payable in arrears on the last day of each March,
June, September and December of each year and on the Commitment Termination
Date, commencing on the first such date after the Execution Date; provided,
--------
further, that any facility fees accruing after the Commitment Termination Date
- -------
shall be payable on demand.
(c) Payments. Accrued fees shall be payable quarterly in
arrears on the last day of each of March, June, September and December,
commencing on September 30, 2001 and on the Commitment Termination Date (and if
later, the date the Loans shall be repaid in their entirety).
Section 2.16. Computation of Interest and Fees. Interest based
--------------------------------
on the prime lending rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other interest
and all fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day). Each determination by the Administrative Agent of an interest amount
or fee hereunder shall be made in good faith and, except for manifest error,
shall be final, conclusive and binding for all purposes.
Section 2.17. Inability to Determine Interest Rates. If prior
-------------------------------------
to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
(ii) the Administrative Agent shall have received notice from
the Required Lenders (or in the case of a Eurodollar Competitive Bid
Loan, the Lender required to make such Loan) that the Adjusted LIBOR
does not adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining their (or
its, as the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders (or in the
case of a Eurodollar Competitive Bid Loan, the affected Lender) as soon as
practicable thereafter. In the case of a Eurodollar Competitive Bid Borrowing,
the related Competitive Bid Request shall be cancelled and the Lender or Lenders
shall not have any obligation to make such Eurodollar Competitive Bid Borrowing.
In the case of Eurodollar Loans, until the Administrative Agent shall notify the
Borrower and the Lenders that the
29
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall automatically, on the last day of the then current
Interest Period applicable thereto unless the Borrower prepays such Loans in
accordance with this Agreement, be converted into Base Rate Loans. Unless the
Borrower notifies the Administrative Agent at least one Business Day before the
date of any Eurodollar Revolving Borrowing for which a Notice of Revolving
Borrowing has previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate Borrowing.
Section 2.18. Illegality. If any Change in Law shall make it
----------
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans or to
continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
Section 2.19. Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBOR hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBOR );
or
(ii) impose on any Lender or the eurodollar interbank market
any other condition affecting this Agreement or any Eurodollar Loans
made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
reduce the amount received or receivable by such Lender hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender, within five Business Days after the date
of such notice and demand, additional
30
amount or amounts sufficient to compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the
date of this Agreement any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's capital
(or on the capital of such Lender's parent corporation) as a consequence of its
obligations hereunder to a level below that which such Lender or such Lender's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's policies or the policies of such Lender's parent
corporation with respect to capital adequacy) then, from time to time, within
five (5) Business Days after receipt by the Borrower of written demand by such
Lender (with a copy thereof to the Administrative Agent), the Borrower shall pay
to such Lender such additional amounts as will compensate such Lender or such
Lender's parent corporation for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrower shall pay any such Lender such
amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided, that the Borrower shall
not be required to compensate a Lender under this Section for any increased
costs or reductions incurred more than 120 days prior to the date that such
Lender notifies the Borrower of such increased costs or reductions and of such
Lender's intention to claim compensation therefor.
Section 2.20. Funding Indemnity. In the event of (a) the
-----------------
payment of any principal of a Eurodollar Loan or a Competitive Bid Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion or
continuation of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure by the Borrower to borrow, prepay,
convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), or (d) the
failure by the Borrower to borrow any Competitive Bid Loan after accepting the
Competitive Bid to make such Loan, then, in any such event, the Borrower shall
compensate each Lender, within five (5) Business Days after written demand from
such Lender, for any loss, cost or expense attributable to such event. In the
case of a Eurodollar Loan, such loss, cost or expense shall be deemed to include
an amount determined by such Lender to be the excess, if any, of (A) the amount
of interest that would have accrued on the principal amount of such Eurodollar
Loan if such event had not occurred at the Adjusted LIBOR applicable to such
Eurodollar Loan for the period from the date of such event to the last day of
the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBOR were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow,
31
convert or continue such Eurodollar Loan. In the case of a Competitive Bid Fixed
Rate Loan, such compensation shall include the amount of such losses, costs or
expenses as the Lender which made such Competitive Bid Fixed Rate Loan may
reasonably incur by reason of such prepayment or failure to borrow, including
any such losses, costs or expenses incurred in obtaining, liquidating or
employing deposits from third parties. A certificate as to any additional amount
payable under this Section 2.20 submitted to the Borrower by any Lender shall be
------------
conclusive, absent manifest error.
Section 2.21. Taxes.
-----
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall
--------
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent or any Lender (as the case
may be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent
and each Lender, within five (5) Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit all
payments under this Agreement to be made without withholding. Without limiting
the generality of the foregoing, each Foreign Lender agrees that it will deliver
to the Administrative Agent and the Borrower (or in the case of a Participant,
to the Lender from which the related
32
participation shall have been purchased) (i) two (2) duly completed copies of
Internal Revenue Service Form W-8ECI or W-8BEN, or any successor form thereto,
as the case may be, certifying in each case that such Foreign Lender is entitled
to receive payments made by the Borrower hereunder and under the Notes payable
to it, without deduction or withholding of any United States federal income
taxes and (ii) a duly completed Internal Revenue Service Form W-8 or W-9, or any
successor form thereto, as the case may be, to establish an exemption from
United State backup withholding tax. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Lender. Each
such Lender shall promptly notify the Borrower and the Administrative Agent at
any time that it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose) which
notice shall create in Borrower the right to replace such Lender pursuant to
Section 2.23 hereof.
- ------------
(f) Each Lender agrees upon the request of the Borrower and
at the Borrower's expense to complete, accurately and in a manner reasonably
satisfactory to the Borrower and the Administrative Agent, and to execute,
arrange for any required certification of, and deliver to the Borrower (with a
copy to the Administrative Agent) (or to such government or taxing authority as
the Borrower or Administrative Agent reasonably directs), any other form or
document that may be required under the laws of any jurisdiction outside the
United States to allow the Borrower to make a payment under this Agreement or
the other Loan Documents without any deduction or withholding for or on account
of any taxes of the type described in Section 2.21 hereof or with any such
------------
deduction or withholding for or on account of such taxes at a reduced rate, in
each case so long as such Lender is (i) legally entitled to provide such
certification and deliver such form or document and (ii) such action is
consistent with its overall tax policies and is not otherwise, in the judgment
of such Lender, impractical or disadvantageous in any material respect to such
Lender.
(g) Notwithstanding any provision of Section 2.21 above to
------------
the contrary, the Borrower shall not have any obligations to pay any taxes or to
indemnify any Lender for such taxes pursuant to this Section 2.21 to the extent
------------
that such taxes result from (i) the failure of any Lender to comply with its
obligations pursuant to Section 2.21(f) or (ii) any representation made on Form
---------------
1001, 4224 or W-8 or successor applicable form or certification by any Lender
incurring such taxes proving to have been incorrect, false or misleading in any
material respect when so made or deemed to be made or (iii) such Lender changing
its Applicable Lending Office to a jurisdiction in which such taxes arise,
except to the extent in the judgment of such Lender such change was required by
the terms of this Agreement.
(h) To the extent that the payment of any Lender's
Indemnified Taxes or Other Taxes by the Borrower hereunder gives rise from time
to time to a Tax Benefit to such lender in any jurisdiction other than the
jurisdiction which imposed such Indemnified Taxes or Other Taxes, such Lender
shall pay to the Borrower the amount of each such Tax Benefit so recognized or
received. The amount of each Tax Benefit and, therefore, payment to the Borrower
will be determined from time to time by the relevant Lender in its sole
discretion, which determination shall be binding and
33
conclusive on all parties hereto. Each such payment will be due and payable by
such Lender to the Borrower within a reasonable time after the filing of the tax
return in which such Tax Benefit is recognized or, in the case of any tax
refund, after the refund is received; provided, however, if at any time
thereafter such Lender is required to rescind such Tax Benefit or such Tax
Benefit is otherwise disallowed or nullified, the Borrower shall promptly, after
notice thereof from such Lender, repay to such Lender the amount of such Tax
Benefit previously paid to such Lender and which has been rescinded, disallowed
or nullified. For purposes hereof, the term "Tax Benefit" shall mean the amount
by which any Lender's income tax liability for the taxable period in question is
reduced below what would have been payable had the Borrower not been required to
pay such Lender's taxes hereunder.
Section 2.22. Payments Generally; Pro Rata Treatment; Sharing
-----------------------------------------------
of Set-offs.
- -----------
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or of amounts payable
under Section 2.19, 2.20 or 2.21, or otherwise) prior to 12:00 noon, on the date
------------ ---- ----
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except that
payments pursuant to Sections 2.19, 2.20 and 2.21 and 10.3 shall be made
------------- ---- ---- ----
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-of
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans of other Lenders
to the extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Revolving Loans; provided, that (i) if
--------
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
34
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount or amounts
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.5(b), 2.8(b), 2.22(d) or 10.3(d), then the
-------------- ------ ------- -------
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
Section 2.23. Mitigation of Obligations; Replacement of
-----------------------------------------
Lenders.
- -------
(a) If any Lender requests compensation under Section 2.19,
------------
or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.21,
------------
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.19 or Section 2.21, as the
------------ ------------
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
(b) If any Lender requests compensation under Section 2.19,
------------
or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Section 2.21, or
------------
any Lender is unable to make Eurodollar Loans for the reasons set forth in
Section 2.18 or if any Lender defaults in its obligation to fund Loans
- ------------
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the
35
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions set forth in
Section 10.4(b) all its interests, rights and obligations under this Agreement
- ---------------
(other than any outstanding Competitive Bid Loans held by such Lender) to an
assignee that shall assume such obligations (which assignee may be another
Lender); provided, that (i) the Borrower shall have received the prior written
--------
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans (other than any outstanding
Competitive Bid Loans) owed to it, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (in the case of
such outstanding principal and accrued interest) and from the Borrower (in the
case of all other amounts) and (iii) in the case of a claim for compensation
under Section 2.19 or payments required to be made pursuant to Section 2.21,
------------ ------------
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if ,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
Section 2.24. Extension of Commitments.
------------------------
(a) The Borrower may, by written notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
Lenders), given not more than forty-five (45) days nor less than thirty (30)
days prior to the then current Commitment Termination Date, request that the
Lenders extend the then scheduled Commitment Termination Date (the "Existing
--------
Date") for an additional 364-day period. Each Lender shall, by notice to the
- ----
Borrower and the Administrative Agent given within fifteen (15) Business Days
after the Borrower gives such notice, advise the Borrower and the Administrative
Agent whether or not such Lender consents to the extension request (and any
Lender which does not respond during such 15-Business-Day period shall be deemed
to have advised the Borrower that it will not agree to such extension).
(b) In the event that, on the 15th Business Day after
Borrower gives the notice described in subsection (a) above, not all of the
Lenders shall have agreed to extend their Revolving Commitments, the Borrower
shall notify each of the consenting Lenders ("Consenting Lenders") of the amount
------------------
of the Revolving Commitments of the non-extending Lenders ("Non-Consenting
--------------
Lenders") and each of such Consenting Lenders shall, by notice to the Borrower
- -------
and the Administrative Agent given within ten (10) Business Days after receipt
of such notice, advise the Administrative Agent and Borrower whether or not such
Lender wishes to purchase all or a portion of the Revolving Commitments of the
Non-Consenting Lenders (and any Lender which does not respond during such
10-Business-Day period shall be deemed to have rejected such offer). In the
event that more than one Consenting Lender agrees to purchase all or a portion
of such Revolving Commitments, the Borrower and the Administrative Agent shall
allocate such Revolving Commitments among such Consenting Lenders so as to
preserve, to the extent possible, the relative pro rata shares of the Consenting
Lenders of the Revolving Commitments prior to such extension request. If
Consenting Lenders do not elect to assume all of the Revolving Commitments of
the Non-Consenting Lenders, the Borrower shall have the right to arrange for one
or more banks or other lending institutions (any such bank or lending
institution being called a "New Lender"), to purchase the Revolving Commitment
----------
of any Non-Consenting Lender. Each Non-Consenting Lender shall
36
assign its Revolving Commitment and the Loans outstanding hereunder to the
Consenting Lender or New Lender purchasing such Revolving Commitment in
accordance with Section 10.4, in return for payment in full of all principal,
------------
interest and other amounts owing to such Non-Consenting Lender hereunder, on or
before the Existing Date and, as of the effective date of such assignment, shall
no longer be a party hereto, provided that each New Lender shall be subject to
the approval of the Administrative Agent (which approval shall not be
unreasonably withheld). If (and only if) all of the Lenders (including New
Lenders) holding Revolving Commitments representing at least 60% of the
Aggregate Revolving Commitments on the date of such extension shall have agreed
in accordance with the terms hereof to such extension (the "Continuing
Lenders"), then (i) the Commitment Termination Date shall be extended for 364
days from the Existing Date and (ii) the Commitment of any Non-Consenting Lender
which has not been assigned to a Consenting Lender or a New Lender shall
terminate (with the result that the amount of the Aggregate Revolving
Commitments shall be decreased by the amount of such Revolving Commitment), and
all Loans of such Non-Consenting Lender shall become due and payable, together
with all interest accrued thereon and all other amounts owed to such
Non-Consenting Lender hereunder, on the Existing Date applicable to such Lender
without giving effect to any extension of the Commitment Termination Date.
(c) The effective date of any extension of the Commitment
Termination Date shall be the then scheduled Existing Date (provided that 60% of
--------
the Continuing Lenders have agreed to such extension in accordance with the
terms of Section 2.24(b)).
(d) The Borrower understands that this Section has been
included in this Agreement for the Borrower's convenience in requesting an
extension and acknowledges that none of the Lenders nor the Administrative Agent
has promised (either expressly or impliedly), nor has any obligation or
commitment whatsoever, to extend the Commitment Termination Date at any time.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
-----------------------------
Section 3.1. Conditions To Effectiveness. The obligations of the
---------------------------
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 10.2).
------------
(a) On the Funding Date, the Administrative Agent shall have
received all fees and other amounts due and payable (other than those previously
paid on or prior to the Execution Date), including reimbursement or payment of
all out-of-pocket expenses (including reasonable fees, charges and disbursements
of counsel to the Administrative Agent) required to be reimbursed or paid by the
Borrower hereunder, under any other Loan Document and under any agreement with
the Administrative Agent or SunTrust Equitable Securities Corporation, as
Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
37
(i) on or prior to the Funding Date, a
counterpart of this Agreement signed by or on behalf of each party
thereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this
Agreement;
(ii) on or prior to the Funding Date, duly
executed Notes payable to such Lender;
(iii) on or prior to the Funding Date, a duly
executed Subsidiary Guaranty Agreement and Indemnity and Contribution
Agreement from each Subsidiary Loan Party ;
(iv) on or prior to the Execution Date, a
certificate of the Secretary or Assistant Secretary of the Borrower,
attaching and certifying copies of its bylaws and of the resolutions of
its boards of directors, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of the Borrower
executing the Loan Documents to which it is a party;
(v) on or prior to the Execution Date, certified
copies of the articles of incorporation or other charter documents of
the Borrower, together with certificates of good standing or existence,
as may be available from the Secretary of State of the jurisdiction of
incorporation of the Borrower and each other jurisdiction where the
Borrower has its principal place of business;
(vi) on or prior to the Funding Date, a favorable
written opinion of Kilpatrick Stockton LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each of the Lenders,
substantially in the form attached hereto as Exhibit F-1 hereof and a
-----------
favorable written opinion of the general counsel of the Loan Parties
addressed to the Administrative Agent and each of the Lenders,
substantially in the form attached hereto as Exhibit F-2;
-----------
(vii) on or prior to the Funding Date, a
certificate of the Secretary or Assistant Secretary of the Borrower and
each of the Subsidiary Loan Parties, attaching and certifying copies of
its bylaws and of the resolutions of its boards of directors,
authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(viii) on or prior to the Funding Date, certified
copies of the articles of incorporation or other charter documents of
the Borrower and each of the Subsidiary Loan Parties, together with
certificates of good standing or existence, as may be available from
the Secretary of State of the jurisdiction of incorporation of such
Loan Party and each other jurisdiction where such Loan Party has its
principal place of business;
(ix) on the Funding Date, a certificate, dated the
Funding Date and signed by a Responsible Officer of the Borrower,
confirming, among other things, compliance with
38
the conditions of Section 3.1 and compliance with the conditions set
-----------
forth in paragraphs (a), (b) and (c) of Section 3.2;
-----------
(x) on or prior to the Funding Date, duly
executed Notices of Borrowing, if applicable;
(xi) on or prior to the Funding Date, delivery of
certified copy of the resolutions adopted by the respective boards of
directors of the Borrower and Equifax, approving the Spin-off and
Spin-off Payment;
(xii) on or prior to the Funding Date, delivery of
certified copies of all consents, approvals, authorizations,
registrations, or filings required to be made or obtained by the
Borrower and all Subsidiary Loan Parties in connection with the Loan
Documents, the Spin-off, the Spin-off Payment, and the other
transactions contemplated herein, including without limitation, the
Form 10 Filing and the Information Statement;
(xiii) The pro forma financial condition of the
Borrower and its Subsidiaries as of the Spin-off Closing Date
(including the pro forma consolidated balance sheet), after giving
effect to the Spin-off and the Spin-off Payment, is consistent in all
material respects with the pro forma financial statements for the
Borrower and its Subsidiaries included in the Form 10 Filing and
Information Statement; and
(xiv) Administrative Agent shall have received such
other documents, certificates or information with respect to the
Borrower and any Subsidiary Loan Party guarantor and/or the Spin-off,
as it or the Required Lenders may reasonably request.
(c) No actions, suits or other legal proceedings shall be
pending or, to the knowledge of the Borrower, threatened, against or affecting
the Borrower or any of its Consolidated Subsidiaries or Equifax (i) which
challenge or contest the validity of the Spin-off or payment of the Spin-off
Payment and which, singly, or in the aggregate, could be reasonably expected to
have a Material Adverse Effect or (ii) which seek to enjoin or restrain the
consummation of the Loan Documents, the Spin-off or the payment of the Spin-off
Payment.
(d) The Borrower and Equifax shall have made arrangements to
pay the Spin-off Payment and effect the Spin-off, with the effectiveness of the
Spin-off to occur no later than 11:59 p.m. one Business Day following the
Funding Date, subject to no conditions or requirements other than the issuance
of shares of the Borrower to the shareholders of Equifax as described in the
Form 10 Filing and the passage of time (and the funding of such dividend with
initial advances under the Loan Documents), and otherwise on terms consistent in
all material respects with the terms of the Form 10 Filing and the Information
Statement.
(e) Since December 31, 2000, there shall have occurred no
events, acts, conditions or occurrences of whatever nature, singly or in the
aggregate, that have had, or are reasonably expected to have, a Material Adverse
Effect.
39
(f) Neither the Spin-off nor payment of the Spin-off Payment
shall cause or result in the occurrence of any default or event of default under
any material indebtedness of the Borrower or Equifax after giving effect to any
consents obtained in connection with the Spin-off, or require any prepayment,
repurchase or redemption of any indebtedness governed thereby, and the Borrower
shall not be liable for the payment of any material indebtedness of Equifax.
(g) The Borrower shall have a Senior Debt Rating of at least
Baa3 issued by Moody's.
Section 3.2. Each Credit Event. The obligation of each Lender
-----------------
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a) at the time of and immediately after giving effect to
such Borrowing, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing before and after giving effect
thereto (except for such representations and warranties that expressly relate to
a prior date); and
(c) since the date of the most recent financial statements
of the Borrower described in Section 5.1(a), there shall have been no change
--------------
which has had or could reasonably be expected to have a Material Adverse Effect.
Each Borrowing shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
-----------
Section 3.3. Delivery of Documents. All of the Loan Documents,
---------------------
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
Section 4.1. Existence; Power. The Borrower and each of its
----------------
Consolidated Subsidiaries (i) is duly organized, validly existing and in good
standing as a corporation under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its
40
business as now conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in
a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The
-----------------------------------
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required,
stockholder, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The
------------------------------------
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect or where the failure to do so, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (b) will not violate any applicable law or regulation or any order of
any Governmental Authority which could reasonably be expected to have a Material
Adverse Effect, (c) will not violate the charter, by-laws or other
organizational documents of the Borrower or any of its Consolidated
Subsidiaries, (d) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on the Borrower or any
of its Consolidated Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Consolidated Subsidiaries and (e) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Consolidated
Subsidiaries, except Liens (if any) created under the Loan Documents.
Section 4.4. Financial Statements. The Borrower has furnished
--------------------
to each Lender (i) the audited combined balance sheet of the payment services
division of Equifax (the "Division") (which is being reorganized as the Borrower
and its Subsidiaries as of the Spin-off Closing Date) as of December 31, 2000
and the related combined statements of income, changes in shareholders' equity
and cash flows for the fiscal year then ended prepared by Arthur Andersen LLP
and (ii) the unaudited combined balance sheet of the Division as at the end of
March 31, 2001, and the related unaudited combined statements of income and cash
flows for the fiscal quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present in all material
respects the combined financial condition of the Division as of such dates and
the combined results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since
December 31, 2000, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect.
41
Section 4.5. Litigation and Environmental Matters.
------------------------------------
(a) No litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Consolidated Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination that could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect or (ii)
which in any manner challenges the validity or enforceability of this Agreement
or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5 and
------------
except for matters which could not reasonably be expected to have a Material
Adverse Effect, neither the Borrower nor any of its Consolidated Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability in each case.
Section 4.6. Compliance with Laws and Agreements. Except where
-----------------------------------
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, the Borrower and each
Consolidated Subsidiary is in compliance with (a) all applicable laws, rules,
regulations and orders of any Governmental Authority, and (b) all indentures,
agreements or other instruments binding upon it or its properties,.
Section 4.7. Investment Company Act, Etc. Neither the Borrower
---------------------------
nor any of its Consolidated Subsidiaries is (a) an "investment company", as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended or (c)
otherwise subject to any other regulatory scheme limiting its ability to incur
debt.
Section 4.8. Taxes. The Borrower and its Consolidated
-----
Subsidiaries have timely filed or caused to be filed all Federal income tax
returns and all other material tax returns that are required to be filed by
them, and have paid all taxes shown to be due and payable on such returns or on
any assessments made against it or its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority, except (i) to the extent the failure to do so would not have a
Material Adverse Effect or (ii) where the same are currently being contested in
good faith by appropriate proceedings and for which the Borrower or such
Consolidated Subsidiary, as the case may be, has set aside on its books adequate
reserves.
Section 4.9. Margin Regulations. None of the proceeds of any
------------------
of the Loans or Letters of Credit will be used for "purchasing" or "carrying"
any "margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
Section 4.10. ERISA. No ERISA Event has occurred or is
-----
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably
42
expected to occur, could reasonably be expected to result in a Material Adverse
Effect. The present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $5,000,000 the fair market value of
the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of all such underfunded Plans.
Section 4.11. Ownership of Property.
---------------------
(a) Each of the Borrower and its Consolidated Subsidiaries
has good title to, or valid leasehold interests in, all of its real and personal
property material to the operation of its business, except for any such failure
that, individually or in the aggregate, would not have a Material Adverse
Effect.
(b) Each of the Borrower and its Consolidated Subsidiaries
owns, or is licensed, or otherwise has the right, to use, all patents,
trademarks, service marks, tradenames, copyrights and other intellectual
property material to its business, and the use thereof by the Borrower and its
Consolidated Subsidiaries does not infringe on the rights of any other Person,
except for any such infringements that, individually or in the aggregate, would
not have a Material Adverse Effect.
Section 4.12. Disclosure. The Borrower has disclosed to the
----------
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Consolidated Subsidiaries is subject, and all
other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the reports (including without limitation all
reports that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, taken as a whole, in light of the circumstances under which they were
made, not misleading.
Section 4.13. Labor Relations. There are no strikes, lockouts
---------------
or other material labor disputes or grievances against the Borrower or any of
its Consolidated Subsidiaries, or, to the Borrower's knowledge, threatened
against or affecting the Borrower or any of its Consolidated Subsidiaries, and
no significant unfair labor practice, charges or grievances are pending against
the Borrower or any of its Consolidated Subsidiaries, or to the Borrower's
knowledge, threatened against any of them before any Governmental Authority that
could reasonably be expected to have a Material Adverse Effect.
43
Section 4.14. Subsidiaries. As of the Funding Date, Schedule
------------ --------
4.14 sets forth the name of, the ownership interest of the Borrower in, the
- ----
jurisdiction of incorporation of, and the type of, each Subsidiary and
identifies each Subsidiary that is a Subsidiary Loan Party.
Section 4.15. Spin-off. The Spin-off and the Spin-off Payment
--------
and all other related transactions comply in all material respects with all
applicable laws and regulations, including without limitation, federal and state
securities laws and regulations, and all organizational documents of the
Borrower and Equifax. The Spin-off and Spin-off Payment and related transactions
have been, or will be not later than 11:59 p.m. one Business Date following the
Funding Date, consummated in all material respects in accordance with the terms
and conditions set forth in the Form 10 Filing and Information Statement.
Neither the Spin-off nor payment of the Spin-off Payment shall cause or result
in the occurrence of any default or event of default under any material
indebtedness of the Borrower or Equifax after giving effect to any consents
obtained in connection with the Spin-off, or require any prepayment, repurchase
or redemption of any indebtedness governed thereby, and the Borrower shall not
be liable for any payment of any material indebtedness of Equifax.
Section 4.16. Indebtedness at Funding Date. As of the Funding
----------------------------
Date, the Borrower and its Consolidated Subsidiaries have no Indebtedness except
as set forth on Schedule 4.16.
-------------
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that, from and after the
Funding Date, so long as any Lender has a Commitment hereunder or the principal
of and interest on any Loan remains unpaid:
Section 5.1. Financial Statements and Other Information. The
------------------------------------------
Borrower will deliver to the Administrative Agent:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower, a copy of the annual audited
report for such fiscal year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable
detail and reported on by Arthur Andersen LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its Subsidiaries for such fiscal
year on a consolidated basis in accordance with GAAP and that the examination by
such accountants in connection with
44
such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) as soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Borrower, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal quarter and the related unaudited
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal
year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's previous
fiscal year, all certified by the chief financial officer or treasurer of the
Borrower as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer, (i) certifying as to whether there exists a Default or
Event of Default on the date of such certificate, and if a Default or an Event
of Default then exists, specifying the details thereof and the action which the
Borrower has taken or proposes to take with respect thereto, (ii) setting forth
in reasonable detail calculations demonstrating compliance with Article VI and
(iii) stating whether any change in GAAP or the application thereof has occurred
since the date of the Borrower's audited financial statements referred to in
Section 4.4 and, if any change has occurred, specifying the effect of such
- -----------
change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial
statements referred to in clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower will
--------------------------
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
45
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or, to
the knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development
(which individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect) by which the Borrower or any of its Consolidated
Subsidiaries (i) fails to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) becomes subject to any Environmental Liability, (iii)
receives notice of any claim with respect to any Environmental Liability, or
(iv) becomes aware of any basis for any Environmental Liability;
(d) the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Consolidated
Subsidiaries in an aggregate amount exceeding $5,000,000;
(e) the downgrading of the Senior Debt Rating by either of
the Rating Agencies; and
(f) any development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and, if applicable, any action taken
or proposed to be taken with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower
------------------------------
will, and will cause each of its Consolidated Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and maintain in full force and
effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business and will continue to engage in the same business
as presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 7.3.
-----------
Section 5.4. Compliance with Laws, Etc. The Borrower will, and
--------------------------
will cause each of its Consolidated Subsidiaries to, comply with all laws,
rules, regulations and requirements of any Governmental Authority applicable to
its properties, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.5. Payment of Obligations. The Borrower will, and
----------------------
will cause each of its Consolidated Subsidiaries to, pay and discharge at or
before maturity, all of its obligations and liabilities (including without
limitation all tax liabilities and claims that could result in a statutory Lien)
before the same shall become delinquent or in default, except where (a) the
validity or amount
46
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6. Books and Records. The Borrower will, and will
-----------------
cause each of its Consolidated Subsidiaries to, keep proper books of record and
account in which full, true and correct entries shall be made of all material
dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in
conformity with GAAP.
Section 5.7. Visitation, Inspection, Etc. The Borrower will,
----------------------------
and will cause each of its Consolidated Subsidiaries to, permit any
representative of the Administrative Agent or any Lender, to visit and inspect
its properties, to examine its books and records and to make copies and take
extracts therefrom, and to discuss its affairs, finances and accounts with any
of its officers and with its independent certified public accountants, all at
such reasonable times and as often as the Administrative Agent or any Lender may
reasonably request after reasonable prior notice to the Borrower.
Section 5.8. Maintenance of Properties; Insurance. The
------------------------------------
Borrower will, and will cause each of its Consolidated Subsidiaries to, (a) keep
and maintain all property material to the conduct of its business in good
working order and condition, subject to ordinary wear and tear, except where the
failure to do so, either individually or it the aggregate, could not reasonably
be expected to result in a Material Adverse Effect and (b) maintain with
financially sound and reputable insurance companies, insurance with respect to
its properties and business, and the properties and business of its Consolidated
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations.
Section 5.9. Use of Proceeds. The Borrower will use the
---------------
proceeds of all Loans to finance working capital needs, the Spin-off Payment and
for other general corporate purposes of the Borrower and its Subsidiaries. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that would violate any rule or regulation of the Board of
Governors of the Federal Reserve System, including Regulations T, U or X.
Section 5.10. Additional Subsidiaries; Release.
--------------------------------
(a) If any additional domestic Subsidiary, other than a
Permitted Securitization Subsidiary, is acquired or formed after the Funding
Date, the Borrower will, within thirty (30) business days after such Subsidiary
is acquired or formed, notify the Administrative Agent and the Lenders thereof
and will cause such Subsidiary to become a Subsidiary Loan Party by executing
agreements in the form of Annex I to Exhibit D and Annex I to Exhibit E in form
and substance satisfactory to the Administrative Agent and the Required Lenders
and will cause such Subsidiary to deliver simultaneously therewith similar
documents applicable to such Subsidiary required under Section 3.1 as reasonably
-----------
requested by the Administrative Agent.
47
(b) In the event that any Subsidiary Loan Party is dissolved
as permitted in Section 7.3 or sold or disposed of as permitted by Section 7.6
----------- -----------
hereof, then such Subsidiary Loan Party shall be automatically released from all
obligations under the Subsidiary Guarantee Agreement and Indemnity and
Contribution Agreement which it had previously delivered to the Administrative
Agent. Such release shall occur upon the consummation of the dissolution or sale
of any such Subsidiary, as the case may be, and the Administrative Agent shall
execute and deliver any releases or other documents reasonably requested by the
Borrower to effectuate such release.
Section 5.11. Consummation of Spin-off. The Spin-off and
------------------------
related transactions shall have been not later than 11:59 p.m. one Business Day
following the Funding Date, consummated in all material respects in accordance
with the terms and conditions set forth in the Form 10 Filing and Information
Statement.
ARTICLE VI
FINANCIAL COVENANTS
-------------------
The Borrower covenants and agrees that, from and after the
Funding Date, so long as any Lender has a Commitment hereunder or the principal
of or interest on or any Loan remains unpaid:
Section 6.1. Leverage Ratio. The Borrower will have, as of the
--------------
end of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending June 30, 2001, a Leverage Ratio of not greater than 3.00 to 1.00.
Section 6.2. Fixed Charge Coverage Ratio. The Borrower will
---------------------------
have, as of the end of each fiscal quarter of the Borrower, commencing with the
fiscal quarter ending June 30, 2001, a Fixed Charge Coverage Ratio of not less
than 2.50 to 1.00.
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that, from and after the
Funding Date, so long as any Lender has a Commitment hereunder or the principal
of or interest on any Loan remains unpaid:
Section 7.1. Subsidiary Indebtedness. The Borrower will not
-----------------------
permit any of its Consolidated Subsidiaries to, create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
48
(b) Indebtedness existing on the Spin-off Closing Date and
set forth on Schedule 7.1 and extensions, renewals and replacements of any such
------------
Indebtedness that do not (i) in the case of revolving credit, increase the
maximum principal amount thereof and (ii) in the case of term loans, increase
the outstanding principal amount thereof (immediately prior to giving effect to
such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof;
(c) Indebtedness of any Consolidated Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations; provided, that such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvements and extensions, renewals, and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
(d) Indebtedness of any Consolidated Subsidiary owing to the
Borrower or any other Consolidated Subsidiary; provided, that any such
--------
Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan Party
shall be subject to Section 7.4;
-----------
(e) Guarantees by any Consolidated Subsidiary of
Indebtedness of the Borrower or any other Subsidiary; provided, that Guarantees
--------
of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be
subject to Section 7.4 and provided, further, that any Indebtedness of the
----------- -------- -------
Borrower which is guaranteed by a Consolidated Subsidiary must otherwise be
permitted under this Section 7.1;
-----------
(f) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.9;
-----------
(g) Indebtedness of any Permitted Securitization Subsidiary
(to the extent such Permitted Securitization Subsidiary constitutes a
Consolidated Subsidiary) incurred in connection with any Permitted
Securitization Transaction; and
(h) other unsecured Indebtedness of Consolidated
Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any
time outstanding.
Section 7.2. Negative Pledge. The Borrower will not, and will
---------------
not permit any of its Consolidated Subsidiaries to, create, incur, assume or
suffer to exist any Lien on any of its assets or property now owned or hereafter
acquired or, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or
any Consolidated Subsidiary existing on the Spin-off Closing Date set forth on
Schedule 7.2; provided, that such Lien shall not apply to any other property or
- ------------ --------
asset of the Borrower or any Consolidated Subsidiary;
49
(c) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of construction or improvement
of such fixed or capital assets or to secure Indebtedness incurred solely for
the purpose of financing the acquisition, construction or improvement of such
fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien attaches to such asset concurrently
--------
or within 90 days after the acquisition, improvement or completion of the
construction thereof; (ii) such Lien does not extend to any other asset; and
(iii) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets;
(d) extensions, renewals, or replacements of any Lien
referred to in paragraphs (a) through (c) of this Section; provided, that the
--------
principal amount of the Indebtedness secured thereby is not increased and that
any such extension, renewal or replacement is limited to the assets originally
encumbered thereby;
(e) any Lien against the Borrower or any Consolidated
Subsidiary evidencing the transfer of any receivables and related property to
any Permitted Securitization Subsidiary (to the extent such Permitted
Securitization Subsidiary constitutes a Consolidated Subsidiary) pursuant to any
Permitted Securitization Transaction;
(f) any Lien against a Permitted Securitization Subsidiary
(to the extent such Permitted Securitization Subsidiary constitutes a
Consolidated Subsidiary) pursuant to any Permitted Securitization Transaction;
and
(g) other Liens securing Indebtedness and other obligations
in the aggregate which do not to exceed 5% of Consolidated Total Assets at any
time.
Section 7.3. Fundamental Changes.
-------------------
(a) The Borrower will not, and will not permit any
Consolidated Subsidiary to, merge into or consolidate into any other Person, or
permit any other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now
owned or hereafter acquired) or all or substantially all of the stock of any of
its Consolidated Subsidiaries (in each case, whether now owned or hereafter
acquired) or liquidate or dissolve; provided, that if at the time thereof and
--------
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing (i) the Borrower or any Consolidated Subsidiary
may merge with a Person if the Borrower (or such Consolidated Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, (ii) any
Consolidated Subsidiary may merge into another Consolidated Subsidiary;
provided, that if any party to such merger is a Subsidiary Loan Party, the
- --------
Subsidiary Loan Party shall be the surviving Person, (iii) any Consolidated
Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Consolidated Subsidiary,
(iv) any Consolidated Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
and (v) any Consolidated Subsidiary may be sold so long as such sale is
permitted under Section 7.6; provided, that any such merger involving
--------
50
a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 7.4; provided, further,
----------- -------- -------
that at any time, (x) any one or more Permitted Securitization Subsidiaries may
merge into or consolidate with any one or more Permitted Securitization
Subsidiaries and (y) any Permitted Securitization Subsidiary may be liquidated
or dissolved.
(b) The Borrower will not, and will not permit any of its
Consolidated Subsidiaries to, engage to any material extent in any business
other than businesses of the type conducted by the Borrower and its Consolidated
Subsidiaries on the date hereof and businesses reasonably related thereto and to
consummate a Permitted Securitizaton Transaction.
Section 7.4. Investments, Loans, Acquisitions, Etc. The
--------------------------------------
Borrower will not, and will not permit any of its Consolidated Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a Wholly-Owned Subsidiary prior to such merger), any common stock,
evidence of indebtedness or other securities (including any option, warrant, or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person (all of the foregoing
being collectively called "Investments"), or consummate any Acquisitions or make
any Restricted Investments, except:
(a) Permitted Investments;
(b) Guarantees constituting Indebtedness not prohibited by
Section 7.1; provided, that the aggregate principal amount of Indebtedness of
- ----------- --------
Subsidiaries or any other entity that are not Subsidiary Loan Parties that is
Guaranteed by any Loan Party shall be subject to the limitations set forth in
clauses (c) and (d) hereof;
(c) Investments made by the Borrower in or to any Subsidiary
and by any Consolidated Subsidiary in or to the Borrower or in or to any
Subsidiary; provided, that the aggregate amount of Investments (determined at
--------
book value) by the Borrower or any Consolidated Subsidiary in or to, and
Guarantees by the Borrower or any Consolidated Subsidiary of Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party (including all such Investments
and Guarantees existing on the Funding Date and which are identified on Schedule
7.4 hereof) shall not exceed $368,900,000;
(d) Restricted Investments so long as after giving effect to
all Restricted Investments, the aggregate amount of all Restricted Investments
(determined at book value) does not exceed 20% of Consolidated Total Assets;
(e) loans or advances to employees, officers or directors of
the Borrower or any Consolidated Subsidiary in the ordinary course of business
for travel, relocation and other business related expenses;
(f) Hedging Agreements permitted by Section 7.10;
------------
51
(g) Permitted Acquisitions; and
(h) Permitted Securitization Subsidiaries.
Section 7.5. Restricted Payments. The Borrower will not, and
-------------------
will not permit its Consolidated Subsidiaries to, declare or make, or agree to
pay or make, directly or indirectly, any dividend on any class of its stock, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of common stock or Indebtedness subordinated to the
Obligations of the Borrower or any options, warrants, or other rights to
purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends payable by
the Borrower solely in shares of any class of its common stock, (ii) Restricted
Payments made by any Consolidated Subsidiary or any Permitted Securitization
Subsidiary to the Borrower or to another Consolidated Subsidiary or, in the case
of a Permitted Securitization Subsidiary, any Consolidated Subsidiary, and (iii)
cash dividends paid on, and cash redemptions of, the common stock of the
Borrower; provided, that no Default or Event of Default has occurred and is
--------
continuing at the time such dividend is paid or redemption is made or would be
caused thereby.
Section 7.6. Sale of Assets. The Borrower will not, and will
--------------
not permit any of its Consolidated Subsidiaries to, convey, sell, lease, assign,
transfer or otherwise dispose of, any of its assets, business or property,
whether now owned or hereafter acquired, or, in the case of any Consolidated
Subsidiary, issue or sell any shares of such Consolidated Subsidiary's common
stock to any Person other than the Borrower or any Wholly-Owned Subsidiary of
the Borrower (or to qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for operations
disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) the sale of any receivables and related property to one
or more Permitted Securitization Subsidiaries so long as such sale is made in
connection with a Permitted Securitization Transaction; and
(d) the sale or other disposition of such assets (which may
include the capital stock of any Subsidiary of the Borrower or all or
substantially all of the assets of any Subsidiary of the Borrower) in an
aggregate amount in any fiscal year of the Borrower not to exceed 10% of the
Consolidated EBIT for the immediately preceding fiscal year.
Section 7.7. Transactions with Affiliates. The Borrower will
----------------------------
not, and will not permit any of its Consolidated Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices
52
and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Borrower and its Consolidated
Subsidiaries not involving any other Affiliates (subject to limitations in
Section 7.4), (c) any Restricted Payment permitted by Section 7.5, and (d) in
- ----------- -----------
any Permitted Securitization Transaction. The Administrative Agent and the
Lenders hereby acknowledge and agree that the transactions between or among the
Borrower and its Consolidated Subsidiaries and Equifax and its subsidiaries
related to any period following the Spin-off, as set forth in the Form 10 Filing
and the Information Statement are transactions not prohibited by this Section
-------
7.7.
- ---
Section 7.8. Restrictive Agreements. The Borrower will not,
----------------------
and will not permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Consolidated Subsidiary to
create, incur or permit any Lien upon any of its assets or properties, whether
now owned or hereafter acquired, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to its common stock, to make or
repay loans or advances to the Borrower or any other Consolidated Subsidiary, to
Guarantee Indebtedness of the Borrower or any other Consolidated Subsidiary or
to transfer any of its property or assets to the Borrower or any Consolidated
Subsidiary of the Borrower; provided, that (i) the foregoing shall not apply to
--------
restrictions or conditions imposed by law or by this Agreement or any other Loan
Document, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Consolidated
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is sold and such sale is permitted hereunder, (iii)
clause (a) shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions and conditions apply only to the property or assets securing such
Indebtedness, (iv) clause (a) shall not apply to customary provisions in (A)
Indebtedness not prohibited by Section 7.1 under a credit facility used by the
-----------
Borrower for settlement purposes so long as such lien restriction is limited to
the Borrower's or any Consolidated Subsidiaries' settlement receivables, any
depository account which is used for the sole purpose of clearing such
settlement receivables, any intercompany obligations which arise among the
Borrower and a Consolidated Subsidiary in connection with such settlement
facility and any documents which relate to the foregoing items in this clause
(A), (B) any Synthetic Lease transaction (not prohibited by the Loan Documents),
(C) any Capital Lease Obligations or other permitted purchase money Indebtedness
so long as such restriction is limited to the asset financed by such Capital
Lease Obligations or purchase money Indebtedness and (D) any Permitted
Securitizaton Transaction (not prohibited by the Loan Documents) involving the
Borrower, any Consolidated Subsidiary or any of their respective assets so long
as such restriction is limited to the asset relating to such Permitted
Securitization Transaction, and (v) clause (b) shall not apply to any Permitted
Securitization Subsidiary.
Section 7.9. Hedging Agreements. The Borrower will not, and
------------------
will not permit any of the Consolidated Subsidiaries to, enter into any Hedging
Agreement, other than non-speculative Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which the Borrower or
any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
53
Section 7.10. Amendment to Material Documents. The Borrower
-------------------------------
will not, and will not permit any Consolidated Subsidiary to, amend, modify or
waive any of its rights in a manner materially adverse to the Lenders under its
certificate of incorporation, bylaws or other organizational documents.
Section 7.11. Accounting Changes. The Borrower will not, and
------------------
will not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP.
Section 7.12 Indebtedness During Transition Period. The
-------------------------------------
Borrower will not, and will not permit any Consolidated Subsidiary to, incur or
suffer to exist any Indebtedness from the Funding Date through the Spin-off Date
other than the Indebtedness set forth on Schedule 4.16.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
Section 8.1. Events of Default. If any of the following events
-----------------
(each an "Event of Default") shall occur:
----------------
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount payable under clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of five (5) Business Days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Consolidated Subsidiary in or in connection
with this Agreement or any other Loan Document (including the Schedules attached
thereto) and any amendments or modifications hereof or waivers hereunder, or in
any certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by the Borrower or any Consolidated
Subsidiary or any representative of the Borrower or any Consolidated Subsidiary
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the
------------ --- ---
Borrower's existence), 5.11 or Articles VI or VII; or
----
54
(e) the Borrower or any Consolidated Subsidiary shall fail
to observe or perform any covenant or agreement contained in this Agreement
(other than those referred to in clauses (a), (b) and (d) above), and such
failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii)
notice thereof shall have been given to the Borrower by the Administrative Agent
or any Lender; or
(f) the Borrower or any Consolidated Subsidiary (whether as
primary obligor or as guarantor or other surety) shall fail to pay any principal
of or premium or interest on any Indebtedness which exceeds $7,500,000
individually or in the aggregate, when and as the same shall become due and
payable (whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable; or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or
(g) the Borrower or any Material Subsidiary shall (i)
commence a voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a custodian, trustee, receiver, liquidator or other
similar official of it or any substantial part of its property, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Material Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or its debts,
or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii)
the appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Material Subsidiary or for a substantial part
of its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Material Subsidiary shall become
unable to pay, shall admit in writing its inability to pay, or shall fail
generally to pay, its debts as they become due; or
55
(j) an ERISA Event shall have occurred that, when taken
together with other ERISA Events that have occurred, could reasonably be
expected to result in liability to the Borrower or any Consolidated Subsidiary
in an aggregate amount exceeding $5,000,000; or
(k) any judgment or order for the payment of money in excess
of $7,500,000 in the aggregate shall be rendered against the Borrower or any
Consolidated Subsidiary, and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be a
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(l) a Change in Control shall occur or exist; or
(m) the Subsidiary Guaranty Agreement shall for any reason
cease to be valid and binding on, or enforceable against, any Subsidiary Loan
Party, or any Subsidiary Loan Party shall so state in writing, or any Subsidiary
Loan Party shall seek to terminate its Subsidiary Guaranty Agreement or any
provision of this Agreement; or
(n) Breach of any covenant by the Borrower or any
Consolidated Subsidiary (including any Permitted Securitization Subsidiary to
the extent a Permitted Securitization Subsidiary is a Consolidated Subsidiary)
contained in any agreement relating to a Permitted Securitization Transaction
causing the acceleration of the obligations thereunder or requiring the
prepayment of such obligations or termination of such securitization program
prior to its stated maturity or term and the Borrower or any Consolidated
Subsidiary (other than any Permitted Securitization Subsidiary to the extent
such Subsidiary is a Consolidated Subsidiary) has liability in excess of
$7,500,000 under such Permitted Securitization Transaction,
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
56
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Section 9.1. Appointment of Administrative Agent. Each Lender
-----------------------------------
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Section 9.2. Nature of Duties of Administrative Agent. The
----------------------------------------
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
------------
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable (provided that the Borrower reserves
any and all rights and claims against any Lender, including the Administrative
Agent in its capacity as a Lender) for any action taken or not taken by it with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
------------
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
57
Section 9.3. Lack of Reliance on the Administrative Agent.
--------------------------------------------
Each of the Lenders acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Lenders also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If
------------------------------------------
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person (provided that the Borrower reserves any and all
rights and claims against any Lender, including the Administrative Agent in its
capacity as a Lender) by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The
--------------------------------
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or not taken
by it in accordance with the advice of such counsel, accountants or experts.
Section 9.6. The Administrative Agent in its Individual
------------------------------------------
Capacity. The bank serving as the Administrative Agent shall have the same
- --------
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
Section 9.7. Successor Administrative Agent.
------------------------------
(a) The Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to the approval by the Borrower provided that
58
no Event of Default shall exist at such time. If no successor Administrative
Agent shall have been so appointed, and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized under the laws of the United States of America or any state
thereof or a bank which maintains an office in the United States, having a
combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been appointed and
- -----------
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
Section 9.8. Additional Agencies; No Duties Imposed Upon
-------------------------------------------
Syndication Agents or Documentation Agents.
- ------------------------------------------
(a) The Administrative Agent shall have the right from time
to time to designate one or more Syndication Agents and Documentation Agents.
Upon any such designation, the Administrative Agent shall have the right to
replace the cover page to this Agreement to reflect the addition of such Person
as Syndication Agent and Documentation Agent, as the case may be.
(b) None of the Persons designated as a "Syndication Agent"
or "Documentation Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any of the other Loan Documents
other than, if such Person is a Lender, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons designated as a "Syndication
Agent" or "Documentation Agent" shall have or be deemed to have any fiduciary
duty to or fiduciary relationship with any Lender. In addition to the agreements
set forth in Section 9.8, each of the Lenders acknowledges that it has not
-----------
relied, and will not rely, on any of the Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
59
ARTICLE X
MISCELLANEOUS
-------------
Section 10.1. Notices.
-------
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Certegy Inc.
11720 Amberpark Drive, Suite 600
Alpharetta, GA 30004
Attention: Bruce S. Richards
Corporate Vice President, General Counsel
and Secretary
Telecopy Number: (678) 867-8100
With a copy to: Certegy Inc.
P.O. Box 349
Alpharetta, Georgia 30009
Attention: Mr. Michael T. Vollkommer
Corporate Vice President and CFO
Telecopy Number: (678) 867-8100
To the Administrative Agent: SunTrust Bank
303 Peachtree Street, N. E., 2nd Floor
Atlanta, Georgia 30308
Attention: Brian Peters
Telecopy Number: (404) 588-8833
With a copy to: SunTrust Equitable Securities Corporation
c/o Agency Services
303 Peachtree Street, N. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Hope Williams
Telecopy Number: (404) 658-4906
To any other Lender: the address set forth under such Lender's
name on the signature pages hereof
60
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall, when transmitted by
overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the mails or if delivered, upon delivery; provided, that notices delivered
to the Administrative Agent shall not be effective until actually received by
the Administrative Agent at its address specified in this Section 10.1.
------------
(b) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Borrower. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
Section 10.2. Waiver; Amendments.
------------------
(a) No failure or delay by the Administrative Agent or any
Lender in exercising any right or power hereunder or any other Loan Document,
and no course of dealing between the Borrower and the Administrative Agent or
any Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this
Agreement or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders or the Borrower and
the Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
--------
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or
61
reduce the rate of interest thereon, or reduce any fees or other amounts payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or interest thereon or any fees or other amounts payable hereunder or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.22 (b) or
------------
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; or (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement (except for releases to be effected by
the Administrative Agent pursuant to Section 5.10); provided further, that no
------------ -------- -------
such agreement shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent without the prior written consent of the
Administrative Agent.
Section 10.3. Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all actual reasonable,
out-of-pocket costs and expenses of the Administrative Agent and its Affiliates
as previously agreed upon by the Borrower and the Administrative Agent,
including, subject to such previously agreed upon arrangement, the reasonable
fees, charges and disbursements of counsel for the Administrative Agent and its
Affiliates, actually incurred, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated) and (ii) all actual reasonable out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel) actually incurred by the Administrative Agent or any Lender
in connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including all such actual reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent
and each Lender, and each Related Party of any of the foregoing (each, an
"Indemnitee") against, and hold each of them harmless from, any and all actual
reasonable costs, losses, liabilities, claims, damages and related expenses,
including the actual reasonable fees, charges and disbursements of any counsel
for any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any actual or alleged presence or release of Hazardous Materials on or from
any property owned by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
62
regardless of whether any Indemnitee is a party thereto; provided, that the
--------
Borrower shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee's gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and
nonappealable judgment or to the extent that such losses relate to a claim made
by an Indeminitee hereunder arising from any cause of action pursued by the
Borrower against such Indemnitee where the Borrower alleged that the Indeminitee
breached its obligations under the Loan Documents and a court having competent
jurisdiction shall have determined by final judgment (not subject to appeal)
that the Indemnitee breached its obligations to the Borrower under the Loan
Documents.
(c) The Borrower shall pay, and hold the Administrative
Agent and each of the Lenders harmless from and against, any and all present and
future Other Taxes and Indemnified Taxes, and save the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent under clauses ( a ), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent such
Lender's Pro Rata Share (determined as of the time that the unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided, that the
--------
unreimbursed expense or indemnified payment, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or the use of proceeds
thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
Section 10.4. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void).
(b) Any Lender may at any time assign to one or more banks
or other financial institutions or entities all or a portion of its rights and
obligations under this Agreement and the other Loan Documents (including all or
a portion of its Commitment and the Loans at the time owing to it); provided,
--------
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Borrower and the Administrative Agent (and, in the case of
an assignment of all or a portion of a Commitment) must give their prior written
consent (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender
63
or an assignment of the entire amount of the assigning Lender's Commitment
hereunder or an assignment while an Event of Default has occurred and is
continuing, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000 (unless the Borrower and the Administrative Agent shall
otherwise consent), (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement and the other Loan Documents (except that such assignment
may, but shall not be required to, include any Competitive Bid Loans of such
assigning Lender), (iv) the assigning Lender and the assignee shall (unless
otherwise waived by the Administrative Agent) execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee payable by the assigning Lender or the assignee (as
determined between such Persons) in an amount equal to $1,000 (unless otherwise
waived by the Administrative Agent) and (v) such assignee, if it is not a
Lender, shall deliver a duly completed Administrative Questionnaire to the
Administrative Agent; provided, that any consent of the Borrower otherwise
--------
required hereunder shall not be required in connection with the initial
syndication of the Loans or if an Event of Default has occurred and is
continuing. Upon the execution and delivery of the Assignment and Acceptance and
payment by such assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Persons, such assignee shall become a party
to this Agreement and any other Loan Documents to which such assigning Lender is
a party and, to the extent of such interest assigned by such Assignment and
Acceptance, shall have the rights and obligations of a Lender under this
Agreement, and the assigning Lender shall be released from its obligations
hereunder to a corresponding extent (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.17, 2.18, 2.19 and 10.3). Upon the
------------- ---- ---- ----
consummation of any such assignment hereunder, the assigning Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements to
have new Notes issued. Any assignment or other transfer by a Lender that does
not fully comply with the terms of this clause (b) shall be treated for purposes
of this Agreement as a sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such Lender's rights
-----------
and obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it ); provided, that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of its
obligations hereunder, and (iii) the Borrower, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement between such Lender and the Participant
with respect to such participation shall provide that such Lender shall retain
the sole right and responsibility to enforce this Agreement and the other Loan
Documents and the right to approve any amendment, modification or waiver of this
Agreement and the other Loan Documents; provided, that such participation
--------
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver of this Agreement
described in the first proviso of Section 10.2(b) that affects the Participant.
---------------
The Borrower agrees that each Participant
64
shall be entitled to the benefits of Sections 2.17, 2.18, 2.19 and 2.20 to the
------------- ---- ---- ----
same extent as if it were a Lender hereunder and had acquired its interest by
assignment pursuant to paragraph (b); provided, that no Participant shall be
--------
entitled to receive any greater payment under Section 2.17 or 2.19 than the
------------ ----
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. To the extent permitted by law, the
Borrower agrees that each Participant shall be entitled to the benefits of
Section 2.21 as though it were a Lender, provided, that such Participant agrees
- ------------ --------
to share with the Lenders the proceeds thereof in accordance with Section 2.22
------------
as fully as if it were a Lender hereunder. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.22
------------
unless the Borrower is notified of such participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.22(e) as though it were a Lender hereunder.
- --------------
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and its Notes
(if any) to secure its obligations to a Federal Reserve Bank without complying
with this Section; provided, that no such pledge or assignment shall release a
--------
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose funding
---------------
vehicle (an "SPV"), identified as such in writing from time to time by the
---
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPV to
- --------
make any Loan and (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of any Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPV hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State contrary in this
Section 10.4, any SPV may (i) with notice to, but without the prior written
- ------------
consent of, the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit support
to or for the account of such SPV to support the funding or maintenance of Loans
and (ii) disclose on a confidential basis any non-public information relating to
its Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPV. As this
Section 10.4(e) applies to any particular SPV, this Section may not be amended
- ---------------
without the written consent of such SPV.
65
Section 10.5. Governing Law; Jurisdiction; Consent to Service
-----------------------------------------------
of Process.
- ----------
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving effect
to the conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Northern District of Georgia, and of any
state court of the State of Georgia located in Fulton County and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Georgia state court or , to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
------------
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO
--------------------
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
66
Section 10.7. Right of Setoff. In addition to any rights now
---------------
or hereafter granted under applicable law and not by way of limitation of any
such rights, each Lender shall have the right, at any time or from time to time
upon the occurrence and during the continuance of an Event of Default, without
prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set off and apply against
all deposits (general or special, time or demand, provisional or final) of the
Borrower at any time held or other obligations at any time owing by such Lender
to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender, irrespective of whether such Lender shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender agrees promptly to notify the Administrative Agent and the Borrower after
any such set-off and any application made by such Lender; provided, that the
--------
failure to give such notice shall not affect the validity of such set-off and
application.
Section 10.8. Counterparts; Integration. This Agreement may be
-------------------------
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
Section 10.9. Survival. All covenants, agreements,
--------
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans , regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.19, 2.20, 2.21, and 10.3 and
------------- ---- ---- ----
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the termination of the Commitments or the termination of this Agreement
or any provision hereof. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
other Loan Documents and the making of the Loans.
Section 10.10. Severability. Any provision of this Agreement
------------
or any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
67
Section 10.11. Confidentiality. The Administrative Agent and
---------------
each Lender agree to take normal and reasonable precautions to maintain the
confidentiality of any information provided to it by the Borrower or any
Subsidiary, except that such information may be disclosed (i) to any Related
Party of the Administrative Agent or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available to the
Administrative Agent, any Lender or any Related Party of any of the foregoing on
a nonconfidential basis from a source other than the Borrower or any Subsidiary
thereof, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder (but only to the extent necessary or advisable for the exercise
of such remedy), and (ix) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vi)
- -------------
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
Section 10.12. Interest Rate Limitation. Notwithstanding
------------------------
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be treated
as interest on such Loan under applicable law (collectively, the "Charges"),
shall exceed the maximum lawful rate of interest (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
(remainder of page left intentionally blank)
68
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed under seal in the case of the Borrower by their
respective authorized officers as of the day and year first above written.
CERTEGY INC.
By /s/ Bruce S. Richards
--------------------------------
Name: Bruce S. Richards
Title: Corporate Vice President
[SEAL]
SUNTRUST BANK
as Administrative Agent and as a Lender
By /s/ BRIAN K. PETERS
--------------------------------
Name: Brian K. Peters
Title: Managing Director
Revolving Commitment: $18,750,000
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
WACHOVIA BANK, N.A.
as Co-Syndication Agent and as a Lender
By /s/ Sharon L. Prince
--------------------------------
Name: Sharon L. Prince
Title: Vice President
Revolving Commitment: $15,000,000
Address for Notices
- -------------------
For General Notices:
Wachovia Bank, N.A.
191 Peachtree Street NE
Atlanta, GA 30303
Telephone: (404) 332-6551
Facsimile: (404) 332-4048
Attention: Karen McClain
For Administrative/Operations Notices:
Wachovia Bank, N.A.
191 Peachtree Street NE
Atlanta, GA 30303
Telephone: (404) 332-6554
Facsimile: (404) 332-6408
Attention: Elaine Render
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
FLEET NATIONAL BANK
as Co-Syndication Agent and as a Lender
By /s/ Larisa B. Chilton
--------------------------------
Name: Larisa B. Chilton
Title: Vice President
Revolving Commitment: $15,000,000
Address for Notices
- -------------------
For General Notices:
Fleet National Bank
100 Federal Street
Boston, MA 02110
Telephone: (617) 434-8957
Facsimile: (617) 434-0819
Attention: Larisa B. Chilton
For Administrative/Operations Notices:
Fleet National Bank
100 Federal Street
Boston, MA 02110
Telephone: (617) 434-5059
Facsimile: (617) 434-1709
Attention: Angela Moore
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
BANK OF AMERICA, N.A.
as Documentation Agent and as a Lender
By /s/ Michael J. McKenney
--------------------------------
Name: Michael J. McKenney
Title: Managing Director
Revolving Commitment: $15,000,000
Address for Notices
- -------------------
For General Notices:
Bank of America, N.A.
100 North Tryon Street, 17th Floor
Charlotte, NC 28255
Telephone: (704) 388-5920
Facsimile: (704) 388-0960
Attention: Michael McKenney
For Administrative/Operations Notices:
Bank of America, N.A.
101 North Tryon Street, NC1-001-15-03
Charlotte, NC 28255
Telephone: (704) 386-3781
Facsimile: (704) 409-0056
Attention: Jason Petrea
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
COMERICA
as a Lender
By /s/ Susan A. Claiborne
--------------------------------
Name: Susan A. Claiborne
Title: First Vice President
Revolving Commitment: $5,000,000
Address for Notices
- -------------------
For General Notices:
Comerica Bank
U.S. Banking Southeast
500 Woodward Avenue, 9th Floor, MC 3280
Detroit, MI 48275-3280
Telephone: (313) 222-6122
Facsimile: (313) 222-3330
Attention: Danielle N. Butler
For Administrative/Operations Notices:
Comerica Bank
U.S. Banking Southeast
500 Woodward Avenue, 9th Floor, MC 3280
Detroit, MI 48275-3280
Telephone: (313) 222-4233
Facsimile: (313) 222-3330
Attention: Sherri Carter
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK
as a Lender
By /s/ Edmond DeForest
--------------------------------
Name: Edmond DeForest
Title: Vice President
Revolving Commitment: $5,000,000
Address for Notices
- -------------------
For General Notices:
The Chase Manhattan Bank
Global Media & Telecommunications Group
270 Park Avenue, 36th Floor
New York, NY 10017
Telephone: (212) 270-9627
Facsimile: (212) 270-4584
Attention: Edmond DeForest
For Administrative/Operations Notices:
The Chase Manhattan Bank
Chase Manhattan Loan Services Group
1 Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Telephone: (212) 552-7489
Facsimile: (212) 552-5700
Attention: Elaine Augustine
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
BNP PARIBAS
as a Lender
By /s/ John Stacy
--------------------------------
Name: John Stacy
Title: Managing Director
By /s/ Mike Shryock
--------------------------------
Name: Mike Shryock
Title: Vice President
Revolving Commitment: $5,000,000
For General Notices:
BNP Paribas
1200 Smith Street, #3100
Houston, TX 77002
Telephone: (713) 982-1105
Facsimile: (713) 659-5228
Attention: Mike Shryock
For Administrative/Operations Notices:
BNP Paribas
1200 Smith Street, #3100
Houston, TX 77002
Telephone: (713) 982-1126
Facsimile: (713) 659-5305
Attention: Leah E. Hughes
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
SUMITOMO MITSUI BANKING CORPORATION
as a Lender
By /s/ Eric Seeley
--------------------------------
Name: Eric Seeley
Title: Vice President
Revolving Commitment: $5,000,000
Address for Notices
- -------------------
For General Notices:
Sumitomo Mitsui Banking Corporation
277 Park Avenue, 6th Floor
New York, New York 10172
Telephone: (212) 224-4171
Facsimile: (313) 224-4384
Attention: Eric Seeley
For Administrative/Operations Notices:
Sumitomo Mitsui Banking Corporation
277 Park Avenue, 6th Floor
New York, New York 10172
Telephone: (212) 224-4395
Facsimile: (313) 224-5197
Attention: Ivette Brown
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
MELLON BANK N.A.
as a Lender
By /s/ Jon C. Ritz
--------------------------------
Name: Jon C. Ritz
Title: Vice President
Revolving Commitment: $5,000,000
Address for Notices
- -------------------
For General Notices:
Mellon Bank N.A.
Two Mellon Center, Room 270
Pittsburgh, PA 15259
Telephone: (412) 236-1190
Facsimile: (412) 234-9010
Attention: Jon C. Ritz
For Administrative/Operations Notices:
Mellon Bank N.A.
Two Mellon Center, Room 270
Pittsburgh, PA 15259
Telephone: (412) 234-5767
Facsimile: (412) 209-6124
Attention: Richard Bouchard
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK
as a Lender
By /s/ Dawn P. Weiss
--------------------------------
Name: Dawn P. Weiss
Title: Vice President
Revolving Commitment: $5,000,000
Address for Notices
- -------------------
For General Notices:
First Union National Bank
301 South College Street
Charlotte, NC 28288
Telephone: (704) 715-8098
Facsimile: (704) 383-7611
Attention: Dave Diggers
For Administrative/Operations Notices:
First Union National Bank
201 South College Street, CP17 NC1183
Charlotte, NC 28288-1183
Telephone: (704) 715-1876
Facsimile: (704) 383-7999
Attention: Diane Taylor
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
CREDIT LYONNAIS
as a Lender
By /s/ Attila Koc
--------------------------------
Name: Attila Koc
Title: Senior Vice President
Revolving Commitment: $3,750,000
Address for Notices
- -------------------
For General Notices:
Credit Lyonnais Americas
2200 Ross Avenue, Suite 4400 West
Dallas, TX 75201
Telephone: (214) 220-2308
Facsimile: (214) 220-2323
Attention: Brian Myers
For Administrative/Operations Notices:
Credit Lyonnais Americas
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 261-7623
Facsimile: (212) 261-7696
Attention: Tommaso Puglisi
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
BANK HAPOALIM B.M.
as a Lender
By /s/ Shawn Breedhart
--------------------------------
Name: Shawn Breedhart
Title: Vice President
By /s/ Laura Anne Raffa
--------------------------------
Name: Laura Anne Raffa
Title: Senior Vice President
and Corporate Manager
Revolving Commitment: $2,500,000
For General Notices:
Bank Hapoalim B.M.
New York Branch
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 782-2181
Facsimile: (212) 782-2382
Attention: Marc Bosc
For Administrative/Operations Notices:
Bank Hapoalim B.M.
New York Branch
1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 782-2179
Facsimile: (212) 782-2187
Attention: Donna Gindoff
[SIGNATURE PAGE TO AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT]
Schedule I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
- --------------------------------------------------------------------------------
Applicable Applicable
Margin for Margin for Applicable
Pricing Rating Eurodollar Base Rate Percentage for
Level Category Loans Loans Facility Fee
- --------------------------------------------------------------------------------
I A-or higher/A3 or
higher .650% p.a. 0% p.a. .10% p.a.
- --------------------------------------------------------------------------------
II BBB+/Baa1
.750% p.a. 0% p.a. .125% p.a.
- --------------------------------------------------------------------------------
III BBB /Baa2
.850% p.a. 0% p.a. .150% p.a.
- --------------------------------------------------------------------------------
IV less than
BBB/less than Baa2 1.025% p.a. 0% p.a. .225% p.a.
- --------------------------------------------------------------------------------
Schedule I-1
SCHEDULE 1.1
FOREIGN CURRENCY PAYMENT ACCOUNTS
---------------------------------
Schedule 4.5
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
---------------------
Two buried diesel tanks are located at the Certegy Payment Services, Inc. (f/k/a
Equifax Payment Services, Inc.) site in Tampa, Florida. The EPA has inspected
these tanks and found them not to be in violation of EPA laws.
Schedule 4.5
SCHEDULE 4.14
SUBSIDIARIES
------------
======================================================================================================================
COMPANY NAME PARENT % JURISDICTION OF TYPE OF
COMPANY OWNERSHIP INCORPORATION/ ENTITY
OF PARENT ORGANIZATION
======================================================================================================================
AGES Participacoes S.A. Card Brazil 99.99% Brazil Corporation
Holdings, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Aircrown Ltd. Transax Plc 100% England Private Company
Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Card Brazil Holdings, Inc.* Payment South 100% Georgia Corporation
America Holdings,
Inc.
- ----------------------------------------------------------------------------------------------------------------------
Card Brasil Holdings Ltda. AGES Participacoes 99.99% Brazil Limited Liability
S.A. Company
- ----------------------------------------------------------------------------------------------------------------------
Card Brazil LLC* Card Brazil 100% Georgia Limited Liability
Holdings, Inc. Company
- ----------------------------------------------------------------------------------------------------------------------
Central Credit Services Ltd. Transax Plc 100% Scotland Limited Company
- ----------------------------------------------------------------------------------------------------------------------
Circle of Value, Ltd. Certegy Card 50% Wisconsin General Partnership
Services, Inc.
(f/k/a Equifax Card
Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Asia Pacific Certegy Inc. 100% Georgia Corporation
Holdings, Inc. (f/k/a
Equifax Asia Pacific
Holdings, Inc.)*
- ----------------------------------------------------------------------------------------------------------------------
Certegy Australia Plc Transax Plc 99.99% England Public Company
(f/k/a Equifax Australia Limited by Shares
Plc)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Card Services, Inc. Certegy Payment 100% Florida Corporation
(f/k/a Equifax Card Services, Inc.
Services, Inc.)* (f/k/a Equifax
Payment Services,
Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Card Services Certegy Asia 100% Australia Corporation
Australia Pty Ltd. (f/k/a Pacific Holdings,
Equifax Card Solutions Inc. (f/k/a Equifax
Australia Pty Ltd.) Asia Pacific
Holdings, Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Card Services Ltd. Payment U.K. Ltd. 100% England Private Company
(f/k/a Equifax Card Limited by Shares
Solutions Ltd.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Card Services S.A. Certegy Europe LLC 99.92% France Corporation
(f/k/a Equifax Card
Solutions S.A.)
- ----------------------------------------------------------------------------------------------------------------------
Schedule 4.5
======================================================================================================================
COMPANY NAME PARENT % JURISDICTION OF TYPE OF
COMPANY OWNERSHIP INCORPORATION/ ENTITY
OF PARENT ORGANIZATION
======================================================================================================================
Equifax (Cayman Islands) Payment Brasil 100% Cayman Islands Company Limited by
Ltd. Holdings Ltda. Shares
- ----------------------------------------------------------------------------------------------------------------------
Certegy Check Services, Certegy Payment 100% Delaware Corporation
Inc. (f/k/a Equifax Check Services, Inc.
Services, Inc.)* (f/k/a Equifax
Payment Services,
Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy E-Banking Services, Certegy Payment 100% Georgia Corporation
Inc. (f/k/a Equifax Services (f/k/a
E-Banking Solutions, Inc.)* Equifax Payment
Services, Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy New Zealand Ltd. Transax Plc 100% New Zealand Corporation
(f/k/a Equifax Ltd.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Payment Recovery Certegy Check 100% Georgia Corporation
Services, Inc. (f/k/a Services, Inc.
Equifax Payment Recovery (f/k/a Equifax
Services, Inc.)* Check Services,
Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy Payment Services, Certegy Inc. 100% Delaware Corporation
Inc. (f/k/a Equifax Payment
Services, Inc.)*
- ----------------------------------------------------------------------------------------------------------------------
Certegy Pty Ltd. (f/k/a Transax Plc 100% Australia Corporation
Equifax Pty Ltd.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy SNC (f/k/a Equifax Transax France Plc 99.5% France Corporation
SNC)
Central Credit
Services, Ltd. .5%
- ----------------------------------------------------------------------------------------------------------------------
Financial Insurance Certegy Payment 100% District of Columbia Corporation
Marketing Group, Inc.* Services, Inc.
(f/k/a Equifax
Payment Services,
Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Certegy First Bankcard Certegy Inc. 100% Georgia Corporation
Systems, Inc. (f/k/a First
Bankcard Systems, Inc.)*
- ----------------------------------------------------------------------------------------------------------------------
Partech Ltda. Payment Brasil 51% Brazil Limited Liability
Holdings Ltda. Company
- ----------------------------------------------------------------------------------------------------------------------
Payment Brasil Holdings Payment South 99.99% Brazil Limited Liability
Ltda. America Holdings, Company
Inc.
Payment South .01%
America LLC
- ----------------------------------------------------------------------------------------------------------------------
Schedule 4.5
======================================================================================================================
COMPANY NAME PARENT % JURISDICTION OF TYPE OF
COMPANY OWNERSHIP INCORPORATION/ ENTITY
OF PARENT ORGANIZATION
======================================================================================================================
Payment Chile, S.A. Payment South 99.99% Chile Corporation
America Holdings,
Inc.
- ----------------------------------------------------------------------------------------------------------------------
Certegy Europe LLC* Certegy Inc. 100% Georgia Limited Liability
Company
- ----------------------------------------------------------------------------------------------------------------------
Payment South America Certegy Card 100% Georgia Corporation
Holdings, Inc.* Services, Inc.
(f/k/a Equifax Card
Services, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Payment South America LLC* Payment South 100% Georgia Limited Liability
America Holdings, Company
Inc.
- ----------------------------------------------------------------------------------------------------------------------
Certegy Ltd. (f/k/a Payment Certegy Europe LLC 100% England Private Company
U.K. Ltd.) Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Certegy S.A. (f/k/a Procard Payment Chile, S.A. 99.99% Chile Corporation
S.A.)
- ----------------------------------------------------------------------------------------------------------------------
Retail Credit Management Transax Plc 100% England Private Company
Ltd. Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Certegy Canada, Inc. (f/k/a Certegy Inc. 100% Canada Corporation
Telecredit Canada Inc.)
- ----------------------------------------------------------------------------------------------------------------------
Transax France Plc Transax Plc 99.99% England Public Company
Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Transax Ireland Ltd. Transax Plc 100% Ireland Private Company
Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Transax Plc Payment U.K. Ltd. 100% England Public Company
Limited by Shares
- ----------------------------------------------------------------------------------------------------------------------
Certegy Ltda. (f/k/a Payment Brasil 59.332% Brazil Limited Liability
Unnisa-Solucoes em Meios de Holdings Ltda. Company
Pagamento Ltda.)
Card Brasil 40.668%
Holdings Ltda.
- ----------------------------------------------------------------------------------------------------------------------
VIV Plc Transax Plc 99.25% England Public Company
Limited by Shares
======================================================================================================================
Schedule 4.5
SCHEDULE 4.16
FUNDING DATE INDEBTEDNESS
-------------------------
1. See Indebtedness listed on Schedule 7.1.
2. Intercompany receivables and payables between the Borrower and its
Subsidiaries, on the one hand, and Equifax and its Subsidiaries (other
than the Borrower and its Subsidiaries) on the other hand, to be
reconciled after the Spin-off in an amount that would not exceed the
level of Indebtedness that would otherwise be permitted to exist after
the Funding Date pursuant to Section 7.1. Neither the Borrower nor its
Subsidiaries will pay any such intercompany payables constituting
Indebtedness to Equifax or its Subsidiaries from the Funding Date
through the Spin-off Date.
3. Intercompany payables of the Borrower and/or its Subsidiaries to
Equifax for amounts advanced after June 30, 2001 and prior to the
Spin-off by Equifax for use by the Borrower and/or its Subsidiaries to
fund their settlement obligations for credit card transactions, such
advances being obtained by Equifax for the benefit of the Borrower
and/or its Subsidiaries under that certain Credit Agreement dated as of
December 22, 1997 between Equifax and First Union National Bank and/or
from other Equifax lenders, and being repayable to Equifax out of funds
received from the customers of the Borrower and/or its Subsidiaries.
4. Various other Indebtedness of the Borrower and its Consolidated
Subsidiaries in an aggregate amount up to $5,000,000.
Schedule 4.14
SCHEDULE 7.1
OUTSTANDING SPIN-OFF CLOSING DATE INDEBTEDNESS
----------------------------------------------
1. Certegy Ltda. (f/k/a Unnisa-Solucoes em Meios de Pagamento Ltda.) has
loans outstanding in an amount equal to approximately U.S. $190,000.
2. Letters of Credit now or hereafter existing:
(a) $1,000,000 letter of credit issued by Wachovia Bank on behalf
of Certegy Payment Services, Inc. for the benefit of Florida
Department of Environmental Protection.
(b) $595,000 letter of credit issued by Wachovia Bank on behalf of
Certegy Card Services, Inc. for the benefit of VISA USA, Inc.
3. $130,000,000 settlement line of credit with First Union National Bank
(or such other lender(s) as may be selected by Borrower)
4. $50,000,000 discretionary credit facility with First Union National
Bank (or such other lender(s) as may be selected by Borrower), which
may be put in place on or after the Funding Date
5. Interest rate swap contract with Bank of America, N.A. with a notional
amount of $10,100,000.
6. Synthetic lease with SunTrust Bank and Atlantic Financial Group Ltd.
relating to Borrower's St. Petersburg, Florida facility (the "St.
Petersburg Facility"), with a financed amount not to exceed (when
aggregated with the financed amount in item 7) $34,000,000.
7. Synthetic lease with SunTrust Bank relating to Borrower's Madison,
Wisconsin facility, with a financed amount not to exceed (when
aggregated with the financed amount in item 6) $34,000,000.
8. Guaranty of Borrower in favor of Honeywell Inc., as sublandlord, of all
of the obligations of Certegy Payment Services, Inc. (f/k/a Equifax
Payment Services, Inc.), as subtenant, under the Agreement of Sublease,
dated November 30, 1995, of the St. Petersburg Facility.
9. $300,000,000 Credit Agreement with SunTrust Bank, as agent for the
lenders party thereto.
Schedule 7.2
SCHEDULE 7.2
EXISTING LIENS
--------------
1. Liens on Borrower's St. Petersburg, Florida and Madison, Wisconsin
facilities securing the synthetic lease transactions disclosed in
Schedule 7.1.
2. Liens revealed in UCC searches delivered to Administrative Agent on or
prior to the Funding Date.
Schedule 7.2
SCHEDULE 7.4
EXISTING INVESTMENTS
--------------------
1. Certegy Ltda. (f/k/a Unnisa-Solucoes em Meios de
Pagamento Ltda.): $192,449,000
2. Certegy S.A. (f/k/a Procard S.A.): $ 11,386,000
3. Certegy Asia Pacific Holdings, Inc. (f/k/a Equifax Asia
Pacific Holdings, Inc.) $ 4,000,000
4. Certegy Card Services Ltd. (f/k/a Equifax Card Solutions
Ltd.) and Certegy Ltd. (f/k/a Payment U.K. Ltd.) $ 60,000,000
5. Certegy Canada, Inc. (f/k/a Telecredit Canada Inc.) $ 1,065,000
Schedule 7.2