EXHIBIT 4.1
$550,000,000
CREDIT AGREEMENT
dated as of
August 2, 1995
among
Equifax Inc.,
Certain Of Its Wholly Owned Subsidiaries,
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS........................ 1
SECTION 1.01. Definitions............................................ 1
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SECTION 1.02. Accounting Terms and Determinations.................... 19
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SECTION 1.03. References............................................. 19
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SECTION 1.04. Use of Defined Terms................................... 19
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SECTION 1.05. Terminology............................................ 20
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ARTICLE II
THE CREDITS........................ 20
SECTION 2.01. Commitments to Lend Syndicated Loans................... 20
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SECTION 2.02. Method of Borrowing.................................... 21
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SECTION 2.03. Money Market Loans..................................... 23
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SECTION 2.04. Notes.................................................. 28
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SECTION 2.05. Maturity of Loans...................................... 29
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SECTION 2.06. Interest Rates......................................... 29
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SECTION 2.07. Fees................................................... 32
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SECTION 2.08. Optional Termination or Reduction of Commitments....... 33
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SECTION 2.09. Mandatory Termination of Commitments................... 33
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SECTION 2.10. Optional Prepayments................................... 33
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SECTION 2.11. Mandatory Prepayments and Repayments................... 34
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SECTION 2.12. General Provisions as to Payments...................... 34
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(i)
SECTION 2.13. Computation of Interest and Fees....................... 36
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SECTION 2.14. Election and Release of Borrowers...................... 37
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ARTICLE III
CONDITIONS TO BORROWINGS.................. 37
SECTION 3.01. Conditions to First Borrowing.......................... 37
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SECTION 3.02. Conditions to All Borrowings........................... 39
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES............... 40
SECTION 4.01. Corporate Existence and Power.......................... 40
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SECTION 4.02. Corporate and Governmental Authorization; No
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Contravention................................................... 40
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SECTION 4.03. Binding Effect......................................... 40
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SECTION 4.04. Financial Information.................................. 41
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SECTION 4.05. No Litigation.......................................... 41
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SECTION 4.06. Compliance with ERISA.................................. 41
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SECTION 4.07. Compliance with Laws; Payment of Taxes................. 41
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SECTION 4.08. Subsidiaries; Identification of Consolidated
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Subsidiaries.................................................... 42
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SECTION 4.09. Investment Company Act................................. 42
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SECTION 4.10. Public Utility Holding Company Act..................... 42
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SECTION 4.11. Ownership of Property; Liens........................... 42
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SECTION 4.12. No Default............................................. 43
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SECTION 4.13. Full Disclosure........................................ 43
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SECTION 4.14. Environmental Matters.................................. 43
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SECTION 4.15. Capital Stock.......................................... 44
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SECTION 4.16. Margin Stock........................................... 44
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(ii)
SECTION 4.17. Insolvency............................................. 44
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SECTION 4.18. Insurance.............................................. 45
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SECTION 4.19. Investments............................................ 45
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ARTICLE V
COVENANTS......................... 45
SECTION 5.01. Information............................................ 45
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SECTION 5.02. Inspection of Property, Books and Records.............. 47
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SECTION 5.03. Maintenance of Existence............................... 48
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SECTION 5.04. Dissolution............................................ 48
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SECTION 5.05. Consolidations, Mergers and Sales of Assets............ 48
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SECTION 5.06. Use of Proceeds........................................ 49
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SECTION 5.07. Compliance with Laws; Payment of Taxes................. 49
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SECTION 5.08. Insurance.............................................. 50
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SECTION 5.09. Change in Fiscal Year.................................. 50
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SECTION 5.10. Maintenance of Property................................ 50
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SECTION 5.11. Environmental Notices.................................. 50
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SECTION 5.12. Environmental Matters.................................. 50
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SECTION 5.13. Environmental Release.................................. 51
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SECTION 5.14. Transactions with Affiliates........................... 51
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SECTION 5.15. Restricted Investments................................. 51
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SECTION 5.16. Loans or Advances...................................... 51
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SECTION 5.17. Debt of Consolidated Subsidiaries...................... 52
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SECTION 5.18. Negative Pledge........................................ 52
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SECTION 5.19. Fixed Charges Coverage................................. 52
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SECTION 5.20. Ratio of Net Funded Debt to Cash Flow.................. 53
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(iii)
ARTICLE VI
DEFAULTS.......................... 53
SECTION 6.01. Events of Default...................................... 53
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SECTION 6.02. Notice of Default...................................... 57
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ARTICLE VII
THE AGENT......................... 57
SECTION 7.01. Appointment; Powers and Immunities..................... 57
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SECTION 7.02. Reliance by Agent...................................... 58
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SECTION 7.03. Defaults............................................... 58
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SECTION 7.04. Rights of Agent as a Bank.............................. 58
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SECTION 7.05. Indemnification........................................ 59
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SECTION 7.06 Consequential Damages.................................. 59
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SECTION 7.07. Payee of Note Treated as Owner......................... 59
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SECTION 7.08. Nonreliance on Agent and Other Banks................... 60
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SECTION 7.09. Failure to Act......................................... 60
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SECTION 7.10. Resignation or Removal of Agent........................ 60
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION........... 61
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
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Unfair.......................................................... 61
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SECTION 8.02. Illegality............................................. 61
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SECTION 8.03. Increased Cost and Reduced Return...................... 62
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SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans Substituted
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for Affected Fixed Rate Loans................................... 64
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SECTION 8.05. Compensation........................................... 65
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SECTION 8.06. Failure to Pay in Foreign Currency..................... 66
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(iv)
SECTION 8.07. Judgment Currency...................................... 66
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ARTICLE IX
MISCELLANEOUS........................67
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SECTION 9.01. Notices................................................ 67
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SECTION 9.02. No Waivers............................................. 67
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SECTION 9.03. Expenses; Documentary Taxes............................ 67
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SECTION 9.04. Indemnification........................................ 68
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SECTION 9.05 Setoff; Sharing of Setoffs............................. 68
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SECTION 9.06. Amendments and Waivers................................. 69
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SECTION 9.07. No Margin Stock Collateral............................. 70
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SECTION 9.08. Successors and Assigns................................. 70
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SECTION 9.09. Confidentiality........................................ 73
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SECTION 9.10. Representation by Banks................................ 73
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SECTION 9.11. Obligations Several.................................... 74
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SECTION 9.12. Georgia Law............................................ 74
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SECTION 9.13. Severability........................................... 74
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SECTION 9.14. Interest............................................... 74
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SECTION 9.15. Interpretation......................................... 75
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SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.......... 75
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SECTION 9.17. Counterparts........................................... 76
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SECTION 9.18. Source of Funds -- ERISA............................... 76
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(v)
EXHIBIT A-1 Form of Syndicated Loan Note
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EXHIBIT A-2 Form of Dollar Money Market Loan Note
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EXHIBIT A-3 Form of Foreign Currency Money Market Loan Note
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EXHIBIT B Form of Opinion of Counsel for the Borrower
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EXHIBIT C Form of Opinion of Special Counsel for the Agent
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EXHIBIT D Form of Assignment and Acceptance
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EXHIBIT E Form of Notice of Borrowing
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EXHIBIT F Form of Compliance Certificate
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EXHIBIT G Form of Closing Certificate
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EXHIBIT H Form of Money Market Quote Request
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EXHIBIT I Form of Money Market Quote
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EXHIBIT J Form of Parent Guaranty
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EXHIBIT K Borrower Acknowledgement and Agreement
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EXHIBIT L Borrower Notice of Withdrawal
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Schedule 4.06 Compliance with ERISA
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Schedule 4.08 Subsidiaries
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Schedule 4.14 Environmental Matters
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Schedule 4.15 Capital Stock
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Schedule 5.12 Hazardous Materials
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(vi)
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 2, 1995 among EQUIFAX INC., its
Wholly Owned Subsidiaries which become a party hereto from time to time, the
BANKS listed on the signature pages hereof and WACHOVIA BANK OF GEORGIA, N.A.,
as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
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shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Accounts Management Assets and Liabilities" has the meaning set forth
in the CSC Agreement.
"Acquisition" means any acquisition of the stock in or a significant
part of the assets of any Person, other than acquisition of supplies and raw
materials in the ordinary course of business.
"Adjusted IBOR Rate" has the meaning set forth in Section 2.06(d).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Affected Bank" has the meaning set forth in Section 8.03(d).
"Affiliate" of any relevant Person means (i) any Person that directly,
or indirectly through one or more intermediaries, controls the relevant Person
(a "Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary
of the relevant Person) of which the relevant Person owns, directly or
indirectly, 20% or more of the common stock or equivalent equity interests. As
used herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia Bank of Georgia, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter agreement, dated
as of May 8, 1995, between the Parent and the Agent relating to the structure of
the Loans and certain fees from time to time payable by the Borrowers to the
Agent, together with all amendments and supplements thereto.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Aggregate Commitments" means the sum of the Commitments of all of the
Banks.
"Aggregate Outstanding Loans" means at any time the sum of (i) the
outstanding principal amount of the Syndicated Loans, plus (ii) the outstanding
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principal amount of the Dollar Money Market Loans, and plus (iii) the Dollar
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Equivalent of the outstanding principal amount of the Foreign Currency Money
Market Loans.
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
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"Authority" has the meaning set forth in Section 8.02.
"Authorized Officer" means (i) any of the following officers of the
Parent: Chairman, President, Executive Vice Presidents, Senior Vice Presidents,
Chief Financial Officer, Treasurer, Assistant Treasurer and Corporate
Controller, and (ii) any other officers of the Parent as the Parent may notify
the Agent in writing from time to time.
"Bank" means each bank listed on the signature pages hereof as having
a Commitment, and its successors and assigns.
2
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, and (ii) one-
half of one percent above the Federal Funds Rate. For purposes of determining
the Base Rate or the Federal Funds Rate for any day, changes in the Prime Rate
shall be effective on the date of each such change.
"Base Rate Loan" means a Loan to be made as a Base Rate Loan pursuant
to the applicable Notice of Borrowing, Section 2.02(f), or Article VIII, as
applicable.
"Borrower" or "Borrowers" means, individually and collectively, as the
context shall require, (i) with respect to Syndicated Loans, (a) Parent, and (b)
domestic Wholly Owned Subsidiaries which are Borrowers as provided in Section
2.14, and (ii) with respect to the Money Market Loans, (a) Parent, and (b)
Wholly Owned Subsidiaries which are Borrowers as provided in Section 2.14, and
their respective successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to
the Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) separately by one or more Banks, in the case of a
Money Market Borrowing, in each case pursuant to Article II. A Borrowing is a
"Domestic Borrowing" if such Loans are Domestic Loans or a "Euro-Dollar
Borrowing" if such Loans are Euro-Dollar Loans. A Borrowing is a "Dollar
Borrowing" if it is a Domestic Borrowing or a Euro-Dollar Borrowing. A
Borrowing is a "Money Market Borrowing" if such Loans are either Dollar Money
Market Loans or Foreign Currency Money Market Loans made pursuant to Section
2.03 or a "Syndicated Borrowing" if such Loans are Syndicated Loans made
pursuant to Section 2.01. A Borrowing is a "Dollar Money Market Borrowing" if
such Loans are Dollar Money Market Loans. A Borrowing is a "Foreign Currency
Money Market Borrowing" if such Loans are Foreign Currency Money Market Loans.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Parent and its Consolidated
Subsidiaries, as determined in accordance with GAAP.
"Capital Stock" means any nonredeemable capital stock of a Person (to
the extent issued to another Person), whether common or preferred.
"Cash Flow" means the sum of the Parent's and its Consolidated
Subsidiaries' (i) Consolidated Net Income, plus (ii) depreciation and
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amortization and plus (iii) other non-cash charges.
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3
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. (S) 9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"CSC" means Computer Sciences Corporation, a Texas corporation.
"CSC Agreement" means the Agreement for Computerized Credit Reporting
Services and Options to Purchase and Sell Assets, dated as of the 1st day of
August, 1988, among The Credit Bureau, Incorporated of Georgia, the Borrower,
CSC, CSC Credit Services, Inc., Credit Bureau of Cincinnati, Inc., Credit Bureau
of Greater Kansas City, Inc., Johns Holding Company, CSC Credit Services of
Minnesota, Inc. and CSC Accounts Management, Inc.
"CSC Put" means either of (i) the giving of any notice to the Borrower
or any Affiliate of the Borrower in accordance with the CSC Agreement which
shall require the Borrower or any Affiliate of the Borrower to purchase or
otherwise acquire the Accounts Management Assets and Liabilities, or the
Subsidiaries' Assets and Liabilities, or both of them; or (ii) the occurrence of
an event or series of events which shall result at any time or times in the
direct or indirect ownership by the Borrower, any one or more Affiliates of the
Borrower, or any combination the Borrower and any one or more of its Affiliates,
of the Accounts Management Assets and Liabilities, or the Subsidiaries Assets
and Liabilities, or both of them.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means August 2, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Sections 2.08 and 2.09, or as set forth
in any Assignment and Acceptance executed pursuant to Section 9.08(c).
4
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Current Assets" and "Consolidated Current Liabilities"
mean, at any time, all assets or liabilities, respectively, of the Parent and
its Consolidated Subsidiaries that, in accordance with GAAP, should be
classified as current assets or current liabilities, respectively, on a
consolidated balance sheet of the Parent and its Consolidated Subsidiaries.
"Consolidated Debt" means at any date the Debt of the Parent and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense for such period, and (ii) all payment obligations
of the Parent and its Consolidated Subsidiaries for such period under all
operating leases and rental agreements.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Parent or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Liabilities" means the sum of (i) all liabilities that,
in accordance with GAAP, should be classified as liabilities on a consolidated
balance sheet of Parent and its Consolidated Subsidiaries, and (ii) to the
extent not included in clause (i) of this definition, all Redeemable Preferred
Stock.
"Consolidated Net Income" means, for any period, the Net Income of the
Parent and its Consolidated Subsidiaries determined on a consolidated basis, but
excluding (i) extraordinary items and (ii) any equity interests of the Parent or
any Subsidiary in the unremitted earnings of any Person that is not a
Subsidiary.
"Consolidated Net Tangible Assets" means, at any time, Consolidated
Total Assets, less the sum of the value, as set forth or reflected on the most
recent consolidated balance sheet of the Parent and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(A) All assets which would be treated as intangible assets for balance
sheet presentation purposes under GAAP, excluding "Purchased Data Files", but
including without limitation goodwill (as determined by the Parent in a manner
consistent with its past accounting practices and in accordance
5
with GAAP), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense;
(B) To the extent not included in (A) of this definition, any amount
at which shares of Capital Stock of the Parent appear as an asset on the balance
sheet of its Consolidated Subsidiaries; and
(C) To the extent not included in (A) of this definition, deferred
expenses.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Parent and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Parent in its consolidated financial statements as of such
date.
"Consolidated Total Assets" means, at any time, the total assets of
the Parent and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance sheet
of the Parent and its Consolidated Subsidiaries, prepared in accordance with
GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Current Maturities of Long Term Debt" means all payments in respect
of Long Term Debt (other than Debt under this Agreement) that are required to be
made within one year from the date of determination, whether or not the
obligation to make such payments would constitute a current liability of the
obligor under GAAP.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business and except for any obligation relating to or arising out of the CSC Put
prior to the actual payment therefor, (iv) all obligations of such Person as
lessee under capital leases, (v) all obligations of such Person to reimburse any
bank or other Person in respect of amounts payable
6
under a banker's acceptance, (vi) all Redeemable Preferred Stock of such Person
(in the event such Person is a corporation), (vii) all obligations of such
Person to reimburse any bank or other Person in respect of amounts paid or to be
paid under a letter of credit or similar instrument, (viii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, and (ix) all Debt and other obligations of others
Guaranteed by such Person (other than the Debt and other obligations of the
Parent or the Consolidated Subsidiaries of the Parent Guaranteed by,
respectively, the Parent or the Consolidated Subsidiaries of the Parent).
"Debt Rating" means at any time whichever is the higher of the rating
of the Parent's senior unsecured, unenhanced debt by Moody's Investor Service or
Standard and Poor's (provided, that in the event of a double or greater split
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rating, the rating immediately above the lowest rating shall apply), or if only
one of them rates the Parent's senior unsecured, unenhanced debt, such rating.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of
2% plus the then highest interest rate (including the Applicable Margin) which
may be applicable to any Loans hereunder (irrespective of whether any such type
of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all depreciation
expenses of the Parent and its Consolidated Subsidiaries for such period, as
determined in accordance with GAAP.
"Dollar Equivalent" means the Dollar equivalent of the amount of a
Foreign Currency Money Market Loan, determined by the Agent on the basis of its
spot rate for the purchase of the appropriate Foreign Currency with Dollars.
"Dollar Money Market Loans" means Money Market Loans made in Dollars.
"Dollar Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-2, evidencing the obligation of
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the Borrower to repay the Dollar Money Market Loans, together with all
amendments, consolidations, modifications, renewals and supplements thereto.
7
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Borrowing" has the meaning set forth in the definition of
"Borrowing."
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia are authorized by law to close.
"Domestic Loans" means Base Rate Loans or Dollar Money Market Loans,
or any or all of them, as the context shall require.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Parent or any Consolidated Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any, violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
8
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Parent, any Consolidated
Subsidiary or the Properties, including but not limited to any such requirement
under CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent on such day on such
transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Parent.
"Fiscal Year" means any fiscal year of the Parent.
9
"Fixed Charge Coverage Ratio" means the ratio of (i) Income Available
for Fixed Charges to (ii) Consolidated Fixed Charges.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a Money Market
Borrowing, or both of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans, Money Market Loans, or any
or all of them, as the context shall require.
"Foreign Currencies" means, individually and collectively, as the
context shall require, each of the following, if offered and subject to
availability: (i) Australian dollars, Austrian schillings, Belgium francs,
British pounds sterling, Canadian dollars, Danish kroner, Dutch guilders,
European Currency Units, Finnish markkas, French francs, German deutche marks,
Greek drachmas, Hong Kong dollars, Irish pounds, Italian lira, Japanese yen, New
Zealand dollars, Norwegian kroner, Portuguese escudos, Singaporean dollars,
Spanish pesetas, Swedish kroner and Swiss francs; and (ii) at the option of the
Banks, any other currency which is freely transferable and convertible into
Dollars; provided, however, that no such other currency under this clause (ii)
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shall be included as a Foreign Currency hereunder, or included in a Notice of
Borrowing, unless (x) a Borrower has first submitted a request to the Agent and
the Banks that it be so included, and (y) the Agent and the Banks, in their sole
discretion, have agreed to such request.
"Foreign Currency Business Day" shall mean any Domestic Business Day,
excluding one on which trading is not carried on by and between banks in
deposits of the applicable Foreign Currency in the applicable interbank market
for such Foreign Currency.
"Foreign Currency Money Market Borrowing" has the meaning set forth in
the definition of "Borrowing."
"Foreign Currency Money Market Loan" means a Money Market Loan made in
a Foreign Currency.
"Foreign Currency Money Market Loan Notes" means the promissory notes
of the Borrower, substantially in the form of Exhibit A-3, evidencing the
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obligation of the Borrower to repay the Foreign Currency Money Market Loans,
together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance
10
with Section 1.02, are to be used in making the calculations for purposes of
determining compliance with the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. (S) 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof
(d) toxic substances, as defined in the Toxic Substances Control Act of 19 in
any applicable state or local law or regulation or (e) insecticides, fungicides,
or rodenticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or regulation,
as each such Act, statute or regulation may be amended from time to time.
"IBOR" has the meaning set forth in Section 2.06(d).
"Income Available for Fixed Charges" for any period means the sum of
(i) Consolidated Net Income, (ii) taxes on income and (iii) Consolidated Fixed
Charges, all determined with respect to the Parent and its Consolidated
Subsidiaries on a consolidated basis for such period and in accordance with
GAAP.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing and Foreign Currency Money Market Borrowing, subject to paragraph (c)
below, the period commencing
11
on the date of such Borrowing and ending on the numerically corresponding day in
the first, second, third or sixth month thereafter, as the Borrower may elect in
the applicable Notice of Borrowing; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day or Foreign Currency Business Day, as the
case may be, shall be extended to the next succeeding Euro-Dollar Business
Day or Foreign Currency Business Day, as the case may be, unless such Euro-
Dollar Business Day or Foreign Currency Business Day, as the case may be,
falls in another calendar month, in which case such Interest Period shall,
subject to paragraph (c) below end on the next preceding Euro-Dollar
Business Day or Foreign Currency Business Day, as the case may be;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day or Foreign Currency Business Day, as the case may be, of a calendar
month (or on a day for which there is no numerically corresponding day in
the appropriate subsequent calendar month) shall end on the last Euro-
Dollar Business Day or Foreign Currency Business Day, as the case may be,
of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) no Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date may be selected.
(3) with respect to each Dollar Money Market Borrowing, the period commencing on
the date of such Borrowing and ending on the Stated Maturity Date or such other
date or dates as may be specified in the applicable Money Market Quote; provided
--------
that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
12
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(4) with respect to each Foreign Currency Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated Maturity Date
or such other date or dates as may be specified in the applicable Money Market
Quote; provided that:
--------
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Foreign Currency Business Day shall
be extended to the next succeeding Foreign Currency Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Investment Guidelines" means the guidelines for investment of funds
of the Parent and the Subsidiaries as approved by the Board of Directors of the
Parent or an authorized executive committee thereof and in effect on the Closing
Date, a copy of which has been furnished to the Banks, as modified from time to
time with the approval of the Board of Directors of the Parent or an authorized
executive committee with notification to the Banks.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent. Each Bank may designate a Lending Office for Syndicated Loans and a
different Lending Office for Foreign Currency Money Market Loans, and the term
"Lending Office" shall in such case mean either such Lending Office, as the
context shall require.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a
13
Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Consolidated
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease under GAAP) relating to such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Money Market Loan,
Dollar Money Market Loan, Foreign Currency Money Market Loan, Domestic Loan or
Syndicated Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Money
Market Loans, Dollar Money Market Loans, Foreign Currency Money Market Loans,
Domestic Loans or Syndicated Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, the Parent Guaranty
any other document evidencing, relating to or securing the Loans, and any other
document or instrument delivered from time to time in connection with this
Agreement, the Notes, the Parent Guaranty or the Loans, as such documents and
instruments may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Long-Term Debt" means at any date any Consolidated Debt which matures
(or the maturity of which may at the option of the Parent or any Consolidated
Subsidiary be extended such that it matures) more than one year after such date.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U
or X.
"Material Adverse Effect" means, 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 upon, any of (a) the
financial condition, operations, business, properties or prospects of the Parent
and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies
of the Agent or the Banks under the Loan Documents, or the ability of the Parent
and its Consolidated Subsidiaries taken as a whole to perform its obligations
under the Loan Documents to
14
which it is a party, as applicable, or (c) the legality, validity or
enforceability of any Loan Document.
"Money Market Borrowing Date" has the meaning specified in Section
2.03.
"Money Market Loans" means Loans made pursuant to the terms and
conditions set forth in Section 2.03.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in Section
2.03(b).
"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Funded Debt" of any Person shall mean the sum of (i) all Debt of
such Person regardless of the maturity thereof, less (ii) cash and cash
----
equivalents.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Notes" means the Syndicated Loan Notes, the Dollar Money Market Loan
Notes, the Foreign Currency Money Market Loan Notes, or any or all of them, as
the context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Operating Profits" means, as applied to any Person for any period,
the operating revenue of such Person for such period, minus its costs of
services for such period, and minus its selling, general and administrative
costs for such period, but excluding therefrom all extraordinary gains or
losses, as determined in accordance with GAAP.
"Parent" means Equifax Inc., a Georgia corporation, and its successors
and permitted assigns.
"Parent Guaranty" means the Guaranty Agreement dated as of even date
herewith substantially in the form of Exhibit J, executed by Parent in favor of
---------
the Agent, for the benefit of the Banks, unconditionally Guaranteeing the
payment of all
15
obligations of the other Borrowers hereunder, under the Notes and under the
other Loan Documents executed by them.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.06(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
"Principal Officer" means any of the Authorized Officers or the
General Counsel of the Parent.
"Properties" means all real property owned, leased or otherwise used
or occupied by any Borrower or any Consolidated Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Termination Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
16
"Refunding Loan" means a new Syndicated Loan made on the day on which
an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is being
converted to a Fixed Rate Borrowing, if and to the extent that the proceeds
thereof are used entirely for the purpose of paying such maturing Loan or Loan
being converted, excluding any difference between the amount of such maturing
Loan or Loan being converted and any greater amount being borrowed on such day
and actually either being made available to the Borrower pursuant to Section
2.02(c) or remitted to the Agent as provided in Section 2.12, in each case as
contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation G" means Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reported Net Income" means, for any period, the Net Income of the
Parent and its Consolidated Subsidiaries determined on a consolidated basis.
"Required Banks" means at any time Banks having at least 66 2/3% of
the Aggregate Commitments or, if the Commitments are no longer in effect, Banks
holding at least 66 2/3% of the Aggregate Outstanding Loans.
"Restricted Investments" means Investments in joint ventures and in
Subsidiaries of the Parent which are not Consolidated Subsidiaries. Restricted
Investments shall not include Investments made in the acquisition of a Person
which
17
becomes a Consolidated Subsidiary upon the closing of such acquisition.
"Reuters Screen" means, when used in connection with any designated
page and the London Interbank Offered Rate, the display page so designated on
the Reuter Monitor Money Rates Service (or such other page as may replace that
page on that service for the purpose of displaying rates comparable to the
London Interbank Offered Rate).
"Stated Maturity Date" means, with respect to any Money Market Loan,
the Stated Maturity Date therefor specified by the Bank in the applicable Money
Market Quote.
"Subsidiaries' Assets and Liabilities" has the meaning set forth in
the CSC Agreement.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Parent.
"Syndicated Borrowing" has the meaning set forth in the definition of
"Borrowing."
"Syndicated Loan Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit "A-1", evidencing the obligation of the
-------------
Borrower to repay the Syndicated Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
"Syndicated Loans" means Loans made pursuant to Section 2.01 in
Dollars, which shall be either a Base Rate Loan or a Euro-Dollar Loan.
"Taxes" has the meaning set forth in Section 2.12(c).
"Telerate" means, when used in connection with any designated page and
IBOR, the display page so designated on the Dow Jones Telerate Service (or such
other page as may replace that page on that service for the purpose of
displaying rates comparable to IBOR).
"Termination Date" means June August 1, 2000.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
18
"Transferee" has the meaning set forth in Section 9.08(d).
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to its Commitment less the aggregate outstanding principal amount
of its Syndicated Loans.
"Wachovia" means Wachovia Bank of Georgia, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Parent.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all terms of an accounting character 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, applied on a basis consistent (except for changes
concurred in by the Parent's and its Consolidated Subsidiaries' independent
public accountants or otherwise required by a change in GAAP) with the most
recent audited consolidated financial statements of the Parent and its
Consolidated Subsidiaries delivered to the Banks, unless with respect to any
such change concurred in by the Parent's independent public accountants or
required by GAAP in determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Parent shall have objected
to determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in
----------
this Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and other
subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
--------------------
Agreement shall have the same defined meanings when used
19
in any of the other Loan Documents, unless otherwise defined therein or unless
the context shall require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this
-----------
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement. As used in this Agreement and in any certificate delivered pursuant
to Sections 3.01, 3.02 and 5.01, "knowledge" and "becomes aware" or words of
similar meaning shall mean, with respect to the Parent, any Borrower or
Subsidiary, that a Principal Officer (i) has actual knowledge of such matters,
or (ii) from all the facts and circumstances actually known to him at the time
in question he has reason to know such matters exist.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend Syndicated Loans. (a) Each Bank
------------------------------------
severally agrees, on the terms and conditions set forth herein, to make Loans
(which may be, at the option of the Borrowers and subject to the terms and
conditions hereof, Syndicated Loans consisting of Base Rate Loans or Euro-Dollar
Loans) to any of the Borrowers described in clause (i) of the definition of
"Borrower" from time to time before the Termination Date; provided that,
--------
(i) immediately after each such Loan is made, the sum of the aggregate
principal amount of the Syndicated Loans by such Bank shall not exceed the
amount of its Commitment, and
(ii) the Aggregate Outstanding Loans shall not exceed the Aggregate
Commitments, as determined pursuant to Section 2.01(b).
Each Syndicated Borrowing under this Section shall be in an aggregate principal
amount of $5,000,000 or any larger multiple of $1,000,000 (except that any such
Syndicated Borrowing may be in the aggregate amount of the Unused Commitments)
and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this Section, repay or, to the extent
20
permitted by Section 2.10, prepay Syndicated Loans and reborrow under this
Section at any time before the Termination Date.
(b) The Dollar Equivalent of each Foreign Currency Money Market Loan on the
date each Foreign Currency Money Market Loan is disbursed pursuant to Section
2.03 shall be deemed to be the amount of such Foreign Currency Money Market Loan
outstanding for the purpose of calculating the aggregate principal amount of the
Foreign Currency Money Market Loans on the date of disbursement for purposes of
clause (ii) of Section 2.01(a) and clause (ii) of Section 2.03(a); provided,
--------
however, that if at the time of receipt of any Notice of Borrowing or Money
- -------
Market Quote Request, the Aggregate Outstanding Loans is equal to or greater
than 50% of the Aggregate Commitments, then the Dollar Equivalent of each
Foreign Currency Money Market Loan shall be calculated as of such date, rather
than as of the date such Foreign Currency Money Market Loans were disbursed, and
in the event that, as a result of such calculation, the Aggregate Outstanding
Loans exceeds the Aggregate Commitments, then (i) no additional Borrowings shall
be permitted and (ii) the Foreign Currency Money Market Loans shall be subject
to mandatory repayment pursuant to the provisions of Section 2.11(b).
SECTION 2.02. Method of Borrowing. (a) The Borrower shall give the
-------------------
Agent notice (a "Notice of Borrowing"), which shall be substantially in the form
of Exhibit E, prior to 10:30 A.M. (Atlanta, Georgia time), on the same Domestic
---------
Business Day as each Base Rate Borrowing and at least 2 Euro-Dollar Business
Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable share of such
Borrowing and such Notice of Borrowing, once received by the Agent, shall not
thereafter be revocable by the Borrower.
21
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) on the date of each
Syndicated Borrowing, each Bank shall (except as provided in paragraph (d) of
this Section) make available its ratable share of such Syndicated Borrowing, in
Federal or other funds immediately available in Atlanta, Georgia, to the Agent
at its address referred to in Section 9.01. Unless the Agent determines that any
applicable condition specified in Article III has not been satisfied, the Agent
will make the funds so received from the Banks available to the Borrower at the
Agent's aforesaid address. Unless the Agent receives notice from a Bank, at the
Agent's address referred to in or specified pursuant to Section 9.01, no later
than 4:00 P.M. (local time at such address) on the Domestic Business Day before
the date of a Syndicated Borrowing stating that such Bank will not make a Loan
in connection with such Syndicated Borrowing, the Agent shall be entitled to
assume that such Bank will make a Loan in connection with such Syndicated
Borrowing and, in reliance on such assumption, the Agent may (but shall not be
obligated to) make available such Bank's ratable share of such Syndicated
Borrowing to the Borrower for the account of such Bank. If the Agent makes such
Bank's ratable share available to the Borrower and such Bank does not in fact
make its ratable share of such Syndicated Borrowing available on such date, the
Agent shall be entitled to recover such Bank's ratable share from such Bank or
the Borrower (and for such purpose shall be entitled to charge such amount to
any account of the Borrower maintained with the Agent), together with interest
thereon for each day during the period from the date of such Syndicated
Borrowing until such sum shall be paid in full at a rate per annum equal to the
rate at which the Agent determines that it obtained (or could have obtained)
overnight Federal funds to cover such amount for each such day during such
period, provided that (i) any such payment by the Borrower of such Bank's
--------
ratable share and interest thereon shall be without prejudice to any rights that
the Borrower may have against such Bank and (ii) until such Bank has paid its
ratable share of such Syndicated Borrowing, together with interest pursuant to
the foregoing, it will have no interest in or rights with respect to such
Syndicated Borrowing for any purpose hereunder. If the Agent does not exercise
its option to advance funds for the account of such Bank, it shall forthwith
notify the Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Syndicated Loan from such
Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make such
repayment as a Refunding Loan and only an amount equal to the difference (if
any) between the amount being borrowed and the amount of such Refunding Loan
shall be made available by such Bank to the Agent as provided in paragraph (c)
of this Section, or remitted by the
22
Borrower to the Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Fixed Rate Borrowing may be made if there shall have occurred a Default or an
Event of Default, which Default or Event of Default shall not have been cured or
waived, and in such case all Refunding Loans shall be made as Base Rate Loans
(but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Borrowing are to be Base Rate Loans or Euro-
Dollar Loans, such Syndicated Loans shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to repay any Syndicated
Loans maturing at the end of an Interest Period applicable thereto with the
proceeds of a new Syndicated Borrowing, and the Borrower fails to repay such
Syndicated Loans using its own moneys and fails to give a Notice of Borrowing in
connection with such new Borrowing, a new Syndicated Borrowing shall be deemed
to be made on the date such Syndicated Loans mature in an amount equal to the
principal amount of the Syndicated Loans so maturing, and the Syndicated Loans
comprising such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, there shall
not be more than 9 interest rates (including the Applicable Margins) applicable
to the Fixed Rate Loans at any given time.
SECTION 2.03. Money Market Loans. (a) In addition to making
------------------
Syndicated Borrowings, a Borrower described in clause (ii) of the definition of
"Borrower" may, through the Parent, as set forth in this Section 2.03, request
the Banks to make offers to make Money Market Borrowings available to such
Borrower, which may be Dollar Money Market Borrowings or Foreign Currency Money
Market Borrowings. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03, provided that:
--------
(i) the number of interest rates applicable to Money Market Loans
which may be outstanding at any given time is subject to the provisions of
Section 2.02(g);
(ii) the Aggregate Outstanding Loans shall not exceed the Aggregate
Commitments at such time, calculated as provided in Section 2.01(b); and
23
(iii) the Money Market Loans of any Bank will be deemed to be usage of
the Commitments for the purpose of calculating availability pursuant to
Section 2.01(a)(ii) and 2.03(a)(ii) and fees pursuant to Section 2.07, but
will not reduce such Bank's obligation to lend its pro rata share of the
remaining Unused Commitment.
(b) When a Borrower wishes to request offers to make Money Market Loans,
the Parent (on behalf of such Borrower) shall give the Agent (which shall
promptly notify the Banks) notice substantially in the form of Exhibit H hereto
---------
(a "Money Market Quote Request") so as to be received no later than 9:30 A.M.
(Atlanta, Georgia time) at least 4 Domestic Business Days (with respect to
Dollar Money Market Borrowings) or 4 Foreign Currency Business Days (with
respect to Foreign Currency Money Market Loans) prior to the date of the Money
Market Borrowing proposed therein (or such other time and date as the Borrower
and the Agent, with the consent of the Required Banks, may agree), specifying:
(i) the identity of the Borrower, whether such Money Market Borrowing
is to be a Dollar Money Market Borrowing or a Foreign Currency Money Market
Borrowing, and if the latter, specifying the Foreign Currency of such
Foreign Currency Money Market Borrowing, together with the proposed date of
such Money Market Borrowing, which shall be (x) with respect to a Dollar
Money Market Borrowing, a Domestic Business Day and (y) with respect to a
Foreign Currency Money Market Borrowing, a Foreign Currency Business Day
(the "Money Market Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated Maturity Date") for
repayment of each Money Market Loan to be made as part of such Money Market
Borrowing (which Stated Maturity Date shall be that date occurring (x) with
respect to a Dollar Money Market Borrowing, not less than 7 days but not
greater than 185 days from the date of such Money Market Borrowing and (y)
with respect to a Foreign Currency Money Market Borrowing, not less than 7
days but not greater than 60 days from the date of such Money Market
Borrowing); provided that the Stated Maturity Date for any Money Market
--------
Loan may not extend beyond the Termination Date (as in effect on the date
of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be requested by the
Borrower as a result of such Money Market Borrowing, which shall be at
least (x) with respect to Dollar Money Market Loans, $5,000,000 (and in
larger integral multiples of $1,000,000 and (y) with respect to Foreign
Currency Money Market Loans, the Dollar Equivalent of $1,000,000 (and in
24
larger integral multiples of the Dollar Equivalent of $500,000), but in
each case shall not cause the limits specified in Section 2.03(a) to be
violated.
The Parent (on behalf of such Borrower) may request offers to make Money Market
Loans having up to 2 different Stated Maturity Dates in a single Money Market
Quote Request; provided that the request for each separate Stated Maturity Date
--------
shall be deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the immediately preceding
sentence, after the first Money Market Quote Request has been given hereunder,
no Money Market Quote Request shall be given until at least 3 Domestic Business
Days after the Agent has notified the applicable Banks pursuant to the first
sentence of Section 2.03(e).
(c) (i) Each Bank may, but shall have no obligation to, submit a response
containing an offer to make a Money Market Loan substantially in the form of
Exhibit I hereto (a "Money Market Quote") in response to any Money Market Quote
- ---------
Request; provided that, if the Borrower's request under Section 2.03(b)
--------
specified more than 1 Stated Maturity Date, such Bank may, but shall have no
obligation to, make a single submission containing a separate offer for each
such Stated Maturity Date and each such separate offer shall be deemed to be a
separate Money Market Quote. Each Money Market Quote must be submitted to the
Agent not later than 9:30 A.M. (Atlanta, Georgia time) 2 Domestic Business Days
prior to the Money Market Borrowing Date; provided that any Money Market Quote
--------
submitted by Wachovia may be submitted, and may only be submitted, if Wachovia
notifies the Borrower of the terms of the offer contained therein not later than
9:15 A.M. (Atlanta, Georgia time) 2 Domestic Business Days prior to the Money
Market Borrowing Date (or 15 minutes prior to the time that the other Banks must
have submitted their respective Money Market Quotes). Subject to Section 6.01,
any Money Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and the Stated
Maturity Date therefor;
(B) the principal amounts of the Money Market Loan which the
quoting Bank is willing to make for the applicable Money Market
Quote, which principal amounts: (x) may be greater than or less
than the Commitment of the quoting Bank; (y) shall be at least
(A) with respect to a Dollar Money Market Borrowing, $5,000,000
or a larger integral
25
multiple of $1,000,000, and (B) with respect to a Foreign Currency
Money Market Borrowing, the Dollar Equivalent of $1,000,000 or a
larger integral multiple of the Dollar Equivalent of $500,000; and (z)
may not exceed the principal amount of the Money Market Borrowing for
which offers were requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) offered for each such Money
Market Loan (which in the case of a Foreign Currency Money Market Loan
shall consist of a margin over the Adjusted IBOR Rate as determined by
the Agent as set forth in Section 2.03(e) (which margin shall include
any applicable withholding taxes), such rate being hereinafter
referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market
Quote shall contain qualifying, conditional or similar language or propose
terms other than or in addition to those set forth in the applicable Money
Market Quote Request (other than setting forth the maximum principal
amounts of the Money Market Loan which the quoting Bank is willing to make
for the applicable Interest Period) and, in particular, no Money Market
Quote may be conditioned upon acceptance by the Borrower of all (or some
specified minimum) of the principal amount of the Money Market Loan for
which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the Money Market
Quote is submitted (but in any event not later than 10:00 A.M. (Atlanta, Georgia
time)) 2 Domestic Business Days prior to the Money Market Borrowing Date, notify
the Parent (on behalf of such Borrower) of the terms (i) of any Money Market
Quote submitted by a Bank that is in accordance with Section 2.03(c) and (ii) of
any Money Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with respect to the same
Money Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Agent's notice to the Parent shall specify (A) the principal amounts of the
Money Market Borrowing for which offers have been received and (B) the
respective principal amounts and Money Market Rates so offered by
26
each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 10:30 A.M. (Atlanta, Georgia time) 2 Domestic
Business Days prior to the Money Market Borrowing Date, the Parent (on behalf of
such Borrower) shall notify the Agent of the Borrower's acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.03(d) and
the Agent shall promptly notify each affected Bank. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers (for each
Stated Maturity Date) that are accepted and the Adjusted IBOR Rate determined by
the Agent for the purposes thereof. The Parent (on behalf of such Borrower) may
accept any Money Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least (x) with respect to a
Dollar Money Market Borrowing, 5,000,000 (and in larger multiples of
$1,000,000) and (y) with respect to a Foreign Currency Money Market
Borrowing, the Dollar Equivalent of $1,000,000 (and in larger multiples of
the Dollar Equivalent of $500,000), but in each case shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Parent (on behalf of such Borrower) may not accept any offer
where the Agent has advised the Borrower that such offer fails to comply
with Section 2.03(c)(ii) or otherwise fails to comply with the requirements
of this Agreement (including without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Parent (on behalf of such Borrower) among such Banks as nearly as possible
in proportion to the aggregate principal amount of such offers. Determinations
by the Parent (on behalf of such Borrower) of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
27
(f) Any Bank whose offer to make any Money Market Loan has been
accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the Money
Market Borrowing Date, make the appropriate amount of such Money Market Loan
available to the Agent at its address referred to in Section 9.01 in immediately
available funds. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Borrower on
such date by depositing the same, in immediately available funds, not later than
4:00 P.M. (Atlanta, Georgia time), in an account of such Borrower maintained
with Wachovia.
(g) After any Money Market Loan has been funded, the Agent shall
notify the Banks of the aggregate principal amount of the Money Market Quotes
received and the highest and lowest rates included in such Money Market Quotes.
SECTION 2.04. Notes. (a) The Syndicated Loans of each Bank shall be
-----
evidenced by a single Syndicated Loan Note from each Borrower described in
clause (i) of the definition of "Borrower" payable to the order of such Bank for
the account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank shall be evidenced by a
single Dollar Money Market Loan Note from each Borrower and a single Foreign
Currency Money Market Loan Note from each Borrower, as each is described in
clause (ii) of the definition of "Borrower", each payable to the order of such
Bank for the account of its Lending Office.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Agent shall deliver such Notes to such Bank. Each Bank shall record, and prior
to any transfer of its Notes shall endorse on the schedules forming a part
thereof appropriate notations to evidence, where applicable, the date, amount
and maturity of, and effective interest rate for, each Loan made by it, the date
and amount of each payment of principal made by the Borrower with respect
thereto, whether such Loan is a Base Rate Loan, Euro-Dollar Loan or Foreign
Currency Money Market Loan, and if a Foreign Currency Money Market Loan, a
specification of the Foreign Currency, and such schedules of each such Bank's
Notes shall constitute rebuttable presumptive evidence of the principal amounts
owing and unpaid on such Bank's Notes; provided that the failure of any Bank to
--------
make any such recordation or endorsement shall not affect the obligation of the
Borrower hereunder or under the Notes or the ability of any Bank to assign its
Notes. Each Bank is hereby irrevocably authorized by the Borrower so to endorse
its Notes and to attach to and make a part of any Note a continuation of any
such schedule as and when required.
28
SECTION 2.05. Maturity of Loans. (a) Each Loan included in any
-----------------
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of the
Loans, if any, together with all accrued but unpaid interest thereon, if any,
shall be due and payable on the Termination Date.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" means:
--------------
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (x) for any Base Rate Loan, 0%
and (y) for any Euro-Dollar Loan, 0.20%; and
(ii) from and after the first Performance Pricing Determination Date, (x)
for any Base Rate Loan, 0%, and (y) for any Euro-Dollar Loan, the percentage
determined on each Performance Pricing Determination Date by reference to the
table set forth below and the Debt Rating (or if there is no Debt Rating, the
Fixed Charge Coverage Ratio) for the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date.
================================================================================================================================
Debt Rating more than A-/A3 BBB+/ BBB/ BBB-/ less than BBB-/
or equal to A/A2
Baa1 Baa2 Baa3 Baa3
-------------------------------------------------------------------------------------------------------------------------------
Fixed Charge more than less than 4.00 less than 3.50 less than 3.00 less than 2.50 N/A
Coverage Ratio or equal to 4.00 and and and and
more than more than more than more than
or equal to 3.50 or equal to 3.00 or equal to 2.50 or equal to 2.00
-------------------------------------------------------------------------------------------------------------------------------
Applicable 0.17 0.20 0.21 0.275 0.35 0.50
Margin
================================================================================================================================
In determining interest for purposes of this Section 2.06 and fees for
purposes of Section 2.07, the Borrower and the Banks shall refer to the
Borrower's most recent consolidated quarterly and annual (as the case may be)
financial statements delivered pursuant to Section 5.01(a) or (b), as the case
may be. If such financial statements require a change in interest pursuant to
this Section 2.06 or fees pursuant to Section 2.07, the Borrower shall deliver
to the Agent, along with such financial statements, a notice to that effect,
which notice shall set forth in reasonable detail the calculations establishing
the required change. The "Performance Pricing Determination Date" means the
earlier of the date of any change in the Debt Rating or the date which is the
last date on which such financial statements are
29
permitted to be delivered pursuant to Section 5.01(a) or (b), as applicable. Any
such required change in interest and fees shall become effective on such
Performance Pricing Determination Date, and shall be in effect until the next
Performance Pricing Determination Date, provided that: (i) for Fixed Rate Loans,
--------
changes in interest shall only be effective for Interest Periods commencing on
or after the Performance Pricing Determination Date; and (ii) no fees or
interest shall be decreased pursuant to this Section 2.06 or Section 2.07 if a
Default is in existence on the Performance Pricing Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the Applicable
Margin. Such interest shall be payable for each Interest Period on the last day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rates appear on the Reuters
Screen LIBO Page effective as of 11:00 A.M., London time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, provided that (i) if more
than one such offered rate appears on the Reuters Screen LIBO Page,
30
the "London Interbank Offered Rate" will be the arithmetic average (rounded
upward, if necessary, to the next higher 1/100th of 1%) of such offered rates;
(ii) if no such offered rates appear on such page, the "London Interbank Offered
Rate" for such Interest Period will be the arithmetic average (rounded upward,
if necessary, to the next higher 1/100th of 1%) of rates quoted by not less than
2 major banks in New York City, selected by the Agent, at approximately 10:00
A.M., New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period, for deposits in Dollars offered to leading European banks
for a period comparable to such Interest Period in an amount comparable to the
principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for the Agent (as the same may be
adjusted for any other Bank in accordance with Section 8.03) in respect of
"Eurocurrency liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Euro-Dollar
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Money Market Loan is made until
it becomes due, at a rate per annum equal to the applicable Money Market Rate
set forth in the relevant Money Market Quote, which, if such Money Market Loan
is a Foreign Currency Money Market Loan, shall be the Adjusted IBOR Rate plus
the margin determined by each Bank in connection with its Money Market Quote.
Such interest shall be payable on the Stated Maturity Date thereof, and, if the
Stated Maturity Date occurs more than 90 days after the date of the relevant
Money Market Loan, at intervals of 90 days after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Money Market Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
"Adjusted IBOR Rate" means, with respect to each Foreign Currency Money
Market Loan, the sum of (i) the rate obtained by dividing (A) IBOR for such
Interest Period by (B) a percentage equal to 1 minus the then stated maximum
-----
rate (stated as a decimal) of all reserves requirements (including, without
limitation, any marginal, emergency, supplemental, special or
31
other reserves) applicable to the Bank providing the Money Market Quote of the
Federal Reserve System as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D), plus (ii) if the relevant
----
Foreign Currency Money Market Loan is in British pounds sterling, a percentage
sufficient to compensate the Bank providing the Money Market Quote for the cost
of complying with any reserves, liquidity and/or special deposit requirements of
the Bank of England directly or indirectly affecting the maintenance or funding
of such Foreign Currency Money Market Loan.
"IBOR" means, with respect to each Foreign Currency Money Market Loan, the
offered rate for deposits in the applicable Foreign Currency, for a period
comparable to the Interest Period and in an amount comparable to the amount of
such Foreign Currency Money Market Loan appearing on Telerate Page 3750 (or, if
it is unavailable from Telerate for any reason, by reference to the Reuters
Screen CHFF) as of 11:00 A.M. (London, England time) on the day that is two
Foreign Currency Business Days prior to the date such Foreign Currency Money
Market Loan is made.
(e) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks by
telecopier of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) may, at the election of the Required Banks, bear
interest at the Default Rate.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent, for the
----
ratable account of each Bank, a facility fee, calculated in the manner provided
in the last paragraph of Section 2.06(a), on the aggregate amount of such Bank's
Commitment (without taking into account the amount of the outstanding Loans made
by such Bank), at a rate per annum equal to: (i) for the period commencing on
the Closing Date to and including the first Performance Pricing Determination
Date, 0.09%; and (ii) from and after the first Performance Pricing Determination
Date, the percentage determined on each Performance Pricing Determination Date
by reference to the table set forth below and the Debt Rating (or if there is no
Debt Rating, the Fixed Charge Coverage Ratio) for the quarterly or annual period
ending immediately prior to such Performance Pricing Determination Date:
32
================================================================================================================================
more than
Debt Rating or equal to A/A2 A-/A3 BBB+/ BBB/ BBB-/ less than BBB-/
Baa1 Baa2 Baa3 Baa3
-------------------------------------------------------------------------------------------------------------------------------
Fixed Charge more than 4.00 less than 4.00 less than 3.50 less than 3.00 less than 2.50 N/A
Coverage Ratio or equal to and and and and
more than more than more than more than
or equal to 3.50 or equal to 3.00 or equal to 2.50 or equal to 2.00
-------------------------------------------------------------------------------------------------------------------------------
Facility Fee 0.08 0.09 0.11 0.125 0.175 0.25
================================================================================================================================
Such facility fees shall accrue from and including the Closing Date to (but
excluding the Termination Date) and shall be payable on each March 31, June 30,
September 30 and December 31 and on the Termination Date.
(c) The Borrower shall pay to the Agent, for the account and sole
benefit of the Agent, such fees and other amounts at such times as set forth in
the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of Commitments. The
------------------------------------------------
Borrowers may, upon at least 3 Domestic Business Days' notice to the Agent,
terminate at any time, or proportionately reduce the Unused Commitments from
time to time by an aggregate amount of at least $5,000,000 or any larger
multiple of $1,000,000. If the Commitments are terminated in their entirety,
all accrued fees (as provided under Section 2.07) shall be due and payable on
the effective date of such termination.
SECTION 2.09. Mandatory Termination of Commitments. The Commitments
------------------------------------
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrowers may, upon at
--------------------
least 1 Domestic Business Days' notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $5,000,000 or any larger multiple of $1,000,000 by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Banks included in such Base Rate
Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay all or
any portion of the principal amount of any Fixed Rate Loan prior to the end of
the applicable Interest Period thereof.
33
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.10,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice, once received by the
Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments and Repayments. (a) On each date
------------------------------------
on which the Commitments are reduced pursuant to Section 2.08, 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 prepayment the Aggregate Outstanding Loans do not exceed the
Aggregate Commitments as then reduced.
(b) If the Agent determines at any time (whether as a result of the
provisions of Section 2.01(b) or otherwise on its own initiative or at the
instance of any Bank) that the Aggregate Outstanding Loans (after converting
each Foreign Currency Money Market Loan to its Dollar Equivalent on the date of
calculation) at any time exceeds the Aggregate Commitments, then upon written
notice from the Agent, the Borrower shall repay an aggregate principal amount of
Foreign Currency Money Market Loans by at least the amount of such excess, which
repayments shall be made at the end of the current Interest Periods for the
outstanding Foreign Currency Money Market Loans, as necessary, until the full
amount of such excess has been paid. Nothing in the foregoing shall require the
Agent to make any such calculation unless expressly requested to do so by the
Required Banks, or unless required pursuant to Section 2.01(b).
(c) Each such repayment or prepayment under paragraph (a) or (b) above
shall be applied ratably to the Loans of the Banks outstanding on the date of
repayment or prepayment in the following order of priority: (i) first, to Base
Rate Loans; (ii) secondly, to Euro-Dollar Loans; and (iii) lastly, to Money
Market Loans, (and if such repayment is made under paragraph (b) above, it shall
be applied first to Foreign Currency Loans, and if such repayment or prepayment
is made under paragraph (a) above, it may be applied first to either Dollar
Money Market Loans or Foreign Currency Money Market Loans, at the option of the
Borrower.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower
---------------------------------
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 11:00 A.M. (Atlanta, Georgia time) on the date when
due, in Federal or other funds (subject to paragraph (c) below with respect to
Foreign Currency Money Market Loans) immediately available in Atlanta, Georgia,
to the Agent at its address referred to in Section 9.01. The Agent will
promptly distribute
34
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Domestic
Loans or of fees hereunder shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans or the Foreign Currency Money Market Loans
shall be due on a day which is not a Euro-Dollar Business Day or Foreign
Currency Business Day, as the case may be, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day or Foreign Currency
Business Day, as the case may be, unless such Euro-Dollar Business Day or
Foreign Currency Business Day, as the case may be, falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day or Foreign Currency Business Day, as the case may be.
(c) All payments of principal and interest with respect to Foreign Currency
Money Market Loans shall be made in the Foreign Currency in which the related
Foreign Currency Money Market Loan was made.
(d) All payments of principal, interest and fees and all other amounts to
be made by a Borrower pursuant to this Agreement with respect to any Loan or fee
relating thereto shall be paid without deduction for, and free from, any tax,
imposts, levies, duties, deductions, or withholdings of any nature now or at
anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding (i) in the case of each Bank, taxes
imposed on or measured by its net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank (as the case may be) is
organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof, and (ii) in the case of Foreign Currency Money Market
Loans, any applicable withholding taxes pertaining thereto (all such non-
excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that any Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan
or fee or other amount, such Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in respect
of which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other
35
payment shall equal the amount such Bank would have received had no such
withholding or other payment been made. If no withholding or deduction of Taxes
are payable in respect to any Loan or fee relating thereto, the Borrowers shall
furnish any Bank, at such Bank's request, a certificate from each applicable
taxing authority or an opinion of counsel reasonably acceptable to such Bank, in
either case stating that such payments are exempt from or not subject to
withholding or deduction of Taxes. If the Borrowers fail to provide such
original or certified copy of a receipt evidencing payment of Taxes or
certificate(s) or opinion of counsel of exemption, the Borrowers agree to
compensate such Bank for, and indemnify them with respect to, the tax
consequences of the Borrowers' failure to provide evidence of tax payments or
tax exemption.
Each Bank which is not organized under the laws of the United States or any
state thereof agrees, as soon as practicable after receipt by it of a request by
the Borrower to do so, to file all appropriate forms and take other appropriate
action to obtain a certificate or other appropriate document from the
appropriate governmental authority in the jurisdiction imposing the relevant
Taxes, establishing that it is entitled to receive payments of principal and
interest under this Agreement and the Notes without deduction and free from
withholding of any Taxes imposed by such jurisdiction; provided, that, if it is
-------- ----
unable, for any reason, to establish such exemption, or to file such forms and,
in any event, during such period of time as such request for exemption is
pending, the Borrower shall nonetheless remain obligated under the terms of the
immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by any Borrower
pursuant to this Section 2.12(d), it will pay to such Borrower the amount of
such refund promptly upon receipt thereof; provided, however, if at any time
-------- -------
thereafter it is required to return such refund, such Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers and the Banks
contained in this Section 2.12(d) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on Base Rate
--------------------------------
Loans shall be computed on the basis of a year of 360
36
days and paid for the actual number of days elapsed (including the first day but
excluding the last day). Interest on Euro-Dollar Loans and on Foreign Currency
Money Market Loans shall be computed on the basis of a year of 360 days (except
for any Foreign Currency Money Market Loans outstanding in British pounds
sterling, Australian dollars, Belgian francs, Canadian dollars, Irish pounds or
New Zealand dollars, which shall be computed on the basis of a year of 365 or
366 days, as the case may be) and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the first day thereof
to but excluding the last day thereof. Facility fees and any other fees payable
hereunder 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).
SECTION 2.14. Election and Release of Borrowers. Any Wholly Owned
---------------------------------
Subsidiary (whether existing on the Closing Date or acquired or created
thereafter) may elect to become a Borrower hereunder at any time by executing
and delivering to the Agent for delivery to each of the Banks (i) an original
Borrower Acknowledgement And Agreement in the form of Exhibit K, thereby
---------
becoming a party to this Agreement, and (ii) the other items described in such
Acknowledgement and Agreement, including, without limitation, the Notes
described therein. Any Borrower, other than the Parent, may elect to be released
as a Borrower hereunder at any time upon (i) payment in full of all Loans
outstanding to such Borrower in immediately available funds (including any
amounts owed in connection therewith under Article VIII) and (ii) execution and
delivery by such Borrower to the Agent of an original Borrower Notice of
Withdrawal in the form of Exhibit L.
---------
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of each
-----------------------------
Bank to make a Loan on the occasion of the first Borrowing (or in the event no
Borrowing is made on the Closing Date, on the Closing Date) is subject to the
satisfaction of the conditions set forth in Section 3.02 and receipt by the
Agent of the following (as to the documents described in paragraphs (a),(c), (d)
and (e) below (in sufficient number of counterparts for delivery of a
counterpart to each Bank and retention of one counterpart by the Agent):
(a) from each of the parties hereto either (i) a duly executed
counterpart of this Agreement signed by such party
37
or (ii) a facsimile transmission stating that such party has duly executed
a counterpart of this Agreement and sent such counterpart to the Agent;
(b) from each Borrower described in clause (ii) of the definition of
"Borrower", a duly executed Dollar Money Market Loan Note and a duly
executed Foreign Currency Money Market Loan Note, and from each Borrower
described in clause (i) of the definition of "Borrower", a duly executed
Syndicated Loan Note, in each case for the account of each Bank complying
with the provisions of Section 2.04;
(c) an opinion letter of Hunton & Williams, counsel for the Borrower,
together with an opinion of the Parent's General Counsel, both dated as of
the Closing Date, which taken together cover substantially the opinions set
forth in the form of opinion attached as Exhibit B and covering such
---------
additional matters relating to the transactions contemplated hereby as the
Agent or any Bank may reasonably request;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel for the
Agent, dated as of the Closing Date, substantially in the form of Exhibit C
---------
and covering such additional matters relating to the transactions
contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the
form of Exhibit G), dated as of the Closing Date, signed by an Authorized
---------
Officer of the Parent, to the effect that (i) no Default has occurred and
is continuing on the Closing Date and (ii) the representations and
warranties of the Borrowers contained in Article IV are true on and as of
the Closing Date;
(f) a certificate of incumbency of the Borrower, signed by the
Secretary or an Assistant Secretary of each Borrower, certifying as to the
names, true signatures and incumbency of the officer or officers of the
Borrower authorized to execute and deliver the Loan Documents, and
certified copies of the following items: (i) each Borrower's Certificate of
Incorporation or equivalent organic document, (ii) each Borrower's Bylaws,
(iii) a certificate of the Secretary of State of each state of
incorporation of Parent and each domestic Borrower as to the corporate good
standing, respectively, of Parent and each Borrower, and, if available, a
comparable certificate from the appropriate governing authorities of each
foreign Borrower and (iv) the action taken by the Board of Directors of
each Borrower authorizing such Borrower's execution, delivery and
38
performance of this Agreement, the Notes and the other Loan Documents to
which such Borrower is a party;
(g) in the event of a Borrowing on the Closing Date, a Notice of
Borrowing or notification pursuant to Section 2.03(e) of acceptance of one
or more Money Market Quotes, as applicable;
(h) evidence satisfactory to the Agent of termination of the Loan
Agreement by and among the Parent, the Banks parties thereto, Wachovia Bank
of Georgia, N.A. (f/k/a The First National Bank of Atlanta) as
Administrative Agent, Wachovia Bank of Georgia, N.A. and Bank of America
National Trust and Savings Association, as Co-Agents dated September 28,
1990, as amended as of the Closing Date; and
(i) the fees payable pursuant to the Agent's Letter Agreement.
In addition, if the Borrower desires funding of a Fixed Rate Loan on the Closing
Date, the Agent shall have received, the requisite number of days prior to the
Closing Date, a funding indemnification letter satisfactory to it, pursuant to
which (i) the Agent and the relevant Borrowers shall have agreed upon the
interest rate, amount of Borrowing and Interest Period for such Fixed Rate Loan,
and (ii) such Borrowers shall indemnify the Banks from any loss or expense
arising from the failure to close on the anticipated Closing Date identified in
such letter or the failure to borrow such Fixed Rate Loan on such date.
SECTION 3.02. Conditions to All Borrowings. The obligation of each
----------------------------
Bank to make a Syndicated Loan, other than a Refunding Loan, on the occasion of
each Borrowing is subject to the satisfaction of the following conditions except
as expressly provided in the last sentence of this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing.
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement (other than the representation
and warranty contained in Section 4.04(b), which is made only on and as of
the Closing Date) shall be true on and as of the date of such Borrowing;
and
39
(d) the fact that, immediately after such Borrowing, the conditions
set forth in clauses (i) and (ii) of Section 2.01(a) shall have been
satisfied.
Each Borrowing (both Syndicated and Money Market), other than of a Refunding
Loan, hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the truth and accuracy of the facts
specified in paragraphs (b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Parent represents and warrants, as to itself and the Subsidiaries,
and each of the Borrowers represents and warrants, as to itself, that:
SECTION 4.01. Corporate Existence and Power. Each Borrower is a
-----------------------------
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where the failure to qualify would have a Material Adverse
Effect, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by each Borrower and the
- -------------
Parent of this Agreement, the Notes, the Parent Guaranty and the other Loan
Documents (i) are within such Borrower's corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) require no action by or in
respect of or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of such Borrower
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon such Borrower or any of the Subsidiaries, and (v) do not result in
the creation or imposition of any Lien on any asset of such Borrower or any of
the Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement and the Parent Guaranty
--------------
each constitute a valid and binding agreement of each Borrower and the Parent,
respectively, enforceable in accordance with its terms, and the Notes, and the
other Loan Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of the Borrowers
parties thereto, enforceable in accordance with their
40
respective terms, provided that the enforceability hereof and thereof is subject
--------
in each case to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated balance
---------------------
sheet of the Parent and its Consolidated Subsidiaries as of December 31, 1994
and the related consolidated statements of income, shareholders' equity and cash
flows for the Fiscal Year then ended, reported on by Arthur Andersen & Co.,
copies of which have been delivered to each of the Banks, and the unaudited
consolidated financial statements of the Parent for the interim period ended
March 31, 1995, copies of which have been delivered to each of the Banks, fairly
present, in conformity with GAAP, the consolidated financial position of the
Parent and its Consolidated Subsidiaries as of such dates and their consolidated
results of operations and cash flows for such periods stated.
(b) Since December 31, 1994 there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or proceeding
-------------
pending against or affecting the Parent or any of the Subsidiaries before any
court or arbitrator or any governmental body, agency or official which could
have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA. Except as set forth in Schedule
---------------------
4.06, as the same may be revised from time to time, (i) the Parent and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA; and (ii) neither the Parent nor any
member of the Controlled Group is or ever has been obligated to contribute to
any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. Each Borrower
--------------------------------------
and Consolidated Subsidiary is in compliance with all applicable laws,
regulations and similar requirements of governmental authorities the failure to
comply with which would result in a Material Adverse Effect, except where such
compliance is being contested in good faith through appropriate proceedings.
There have been filed on behalf of each Borrower and Consolidated Subsidiary all
Federal, state and local income, excise, property and other material tax returns
which are required to be filed by them (or appropriate extensions of such
filings have been obtained) and all taxes due pursuant to such returns or
pursuant
41
to any assessment received by or on behalf of each Borrower or any Consolidated
Subsidiary (which are not being contested in good faith by such Person) have
been paid. The charges, accruals and reserves on the books of each Borrower and
Consolidated Subsidiary in respect of taxes or other governmental charges are,
in the opinion of Parent and each Borrower, adequate. United States income tax
returns of each Borrower and Consolidated Subsidiary have been examined and
closed through the Fiscal Year ended December 31, 1991.
SECTION 4.08. Subsidiaries; Identification of Consolidated
--------------------------------------------
Subsidiaries. Each of the Consolidated Subsidiaries which is not a Borrower is
- ------------
a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to transact
business in every jurisdiction where the failure to so qualify would have a
Material Adverse Effect, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted in each case where the failure to have the same would
have a Material Adverse Effect. As of the Closing Date, the Parent has no
Subsidiaries except for those Subsidiaries listed on Schedule 4.08 which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation, and which identifies Consolidated Subsidiaries as being such.
After the Closing Date, in the event that Parent's Subsidiaries are no longer
published in the Parent's annual reports filed with the Securities and Exchange
Commission, Schedule 4.08 shall be supplemented from time to time by the Parent,
with copies to the Agent and the Banks, to identify any additional Subsidiary
and any Subsidiary which has become a Consolidated Subsidiary and which has not
previously been shown as such on such annual reports or on Schedule 4.08 as
previously supplemented.
SECTION 4.09. Investment Company Act. Neither any Borrower nor any
----------------------
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither any
----------------------------------
Borrower nor any Subsidiary is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each Borrower and each
----------------------------
Consolidated Subsidiary has title to its properties sufficient for the conduct
of its business, and none of such property is subject to any Lien except as
permitted in Section 5.18.
42
SECTION 4.12. No Default. Neither any Borrower nor any Consolidated
----------
Subsidiary is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore furnished
---------------
by the Borrowers to the Agent or any Bank (including, without limitation,
information contained in the Parent's form 10-K annual report for Fiscal Year
1994 and form 10-Q quarterly report for the first Fiscal Quarter of 1995) for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Borrowers to the
Agent or any Bank will be, true, accurate and complete in every material respect
or based on reasonable estimates on the date as of which such information is
stated or certified.
SECTION 4.14. Environmental Matters. (a) Neither any Borrower nor any
---------------------
Consolidated Subsidiary is subject to any Environmental Liability which could
have or cause a Material Adverse Effect and neither any Borrower nor any
Consolidated Subsidiary has been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA where the probable
resulting liability would have a Material Adverse Effect. Except as disclosed
on Schedule 4.14, as revised from time to time, to the knowledge of the Parent,
none of the Properties has been identified on any current or proposed (i)
National Priorities List under 40 C.F.R. (S) 300, (ii) CERCLIS list or (iii) any
list arising from a state statute similar to CERCLA.
(b) Except as disclosed on Schedule 4.14, as revised from time to
time, to the knowledge of the Parent, no Hazardous Materials have been or are
being used, produced, manufactured, processed, treated, recycled, generated,
stored, disposed of, managed or otherwise handled at, or shipped or transported
to or from the Properties or are otherwise present at, on, in or under the
Properties, except for Hazardous Materials, such as cleaning solvents,
pesticides and other materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, managed, or otherwise handled in
minimal amounts in the ordinary course of business in compliance with all
applicable Environmental Requirements, except in such instances where such
failure of compliance would not have a Material Adverse Effect.
(c) Except as disclosed on Schedule 4.14, as revised from time to
time, each Borrower, and each of the Subsidiaries has procured all Environmental
Authorizations necessary for the conduct of its business, and is in compliance
with all
43
Environmental Requirements in connection with the operation of the Properties
and each Borrower's and each Consolidated Subsidiary's respective businesses,
except in such instances where such failure of compliance would not have a
Material Adverse Effect.
SECTION 4.15. Capital Stock. All Capital Stock, debentures, bonds,
-------------
notes and all other securities of each Borrower and each Consolidated Subsidiary
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. Except as set forth in
Schedule 4.15, as revised from time to time, the issued shares of Capital Stock
of the Parent's Wholly Owned Subsidiaries are owned by the Parent free and clear
of any Lien or adverse claim and at least a majority of the issued shares of
capital stock of each of the Parent's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Parent free and clear of any Lien or adverse
claim.
SECTION 4.16. Margin Stock. Neither any Borrower nor any Subsidiary
------------
is engaged principally, or as one of its important activities, in the business
of purchasing or carrying any Margin Stock, and no part of the proceeds of any
Loan will be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation U or Regulation X.
SECTION 4.17. Insolvency. After giving effect to the execution and
----------
delivery of the Loan Documents and the making of the Loans under this Agreement:
(i) no Borrower will (x) be "insolvent," within the meaning of such term as used
in O.C.G.A. (S) 18-2-22 or as defined in (S) 101 of the "Bankruptcy Code", or
Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the
obligations of each Borrower under the Loan Documents and with respect to the
Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable state law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
44
SECTION 4.18. Insurance. Each Borrower and each Consolidated
---------
Subsidiary has (either in the name of such Borrower or in such Consolidated
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in comparable amounts and against
comparable risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
SECTION 4.19. Investments. There are no Investments which are not
-----------
Restricted Investments and which are in excess of an aggregate amount of
$25,000,000, which are not within the Investment Guidelines.
ARTICLE V
COVENANTS
The Borrowers agree that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Parent will deliver to each of the
-----------
Banks:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, a consolidated balance sheet of the Parent and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, shareholders' equity and cash flows for
such Fiscal Year, setting forth in each case in comparative form the
figures for the previous fiscal year, all certified by Arthur Andersen &
Co. or other independent public accountants of nationally recognized
standing, with such certification to be free of exceptions and
qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 60 days after the end
of each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated
balance sheet of the Parent and its Consolidated Subsidiaries as of the end
of such Fiscal Quarter and the related statement of income and statement of
cash flows for such Fiscal Quarter and for the portion of the Fiscal Year
ended at the end of such Fiscal Quarter, setting forth in each case in
comparative form the figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject
to normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by an
45
Authorized Officer or the chief accounting officer of the Parent;
(c) within 10 Domestic Business Days after the delivery of each set of
financial statements referred to in paragraph (a) above and simultaneously
with the delivery of each set of financial statements referred to in
paragraph (b) above, a certificate, substantially in the form of Exhibit F
---------
(a "Compliance Certificate"), of an Authorized Officer or the chief
accounting officer of the Parent (i) setting forth in reasonable detail the
calculations required to establish whether the Parent was in compliance
with the requirements of Sections 5.15 through 5.20, inclusive, on the date
of such financial statements and (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth
the details thereof and the action which the Parent is taking or proposes
to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe
that any Default existed on the date of such financial statements;
(e) within 5 Domestic Business Days after a Principal Officer becomes
aware of the occurrence of any Default, a certificate of an Authorized
Officer or the chief accounting officer of the Parent setting forth the
details thereof and the action which the Parent is taking or proposes to
take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Parent generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Parent shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for
46
a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice; and
(i) from time to time such additional information regarding the
financial position or business of the Borrowers and the Subsidiaries as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records.
-----------------------------------------
(a) Each Borrower will keep, and the Parent will cause each
Consolidated Subsidiary to keep, proper books of record and account in
which full, true and correct entries in conformity with GAAP shall be made
of all dealings and transactions in relation to its business and
activities.
(b) Prior to the occurrence of a Default, each Borrower will, and the
Parent will cause each Consolidated Subsidiary to, permit representatives
of any Bank at such Bank's expense after reasonable notice during regular
business hours (which date of visit shall be mutually agreed upon but shall
not be later than 2 weeks after the date requested by such Bank) to visit
and inspect, in the company of any of the Principal Officers or their
designees and their independent public accountants, any of their respective
properties, and to examine and make abstracts from any of their respective
books and records and to discuss with any of the Principal Officers the
respective affairs, finances and accounts of the Parent and its
Subsidiaries.
(c) After the occurrence of a Default, each Borrower will permit, and
the Parent will cause each Consolidated Subsidiary to permit, at the
Borrower's expense, representatives of any Bank to visit and inspect any of
their respective properties, to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and
independent public accountants.
Each Borrower agrees to cooperate and assist in such visits and inspections set
forth in paragraphs (b) and (c) above in this
47
Section, in each case at such reasonable times and as often as may reasonably be
desired. Provided, however, (i) in no event shall any Bank have access to
information prohibited by law, and (ii) in the event any Bank desires to inspect
confidential matters (which matters shall in no event include financial
information and data of the Parent or its Subsidiaries or other information the
Banks may require in order to determine compliance with this Agreement) under
this Section, such Bank shall execute a confidentiality agreement relating to
such matters, which agreement shall contain reasonable terms acceptable to such
Bank and its counsel.
SECTION 5.03. Maintenance of Existence. The Parent shall cause each
------------------------
Consolidated Subsidiary to maintain its corporate existence and not engage in
any substantial businesses outside of the information services industry.
SECTION 5.04. Dissolution. Neither any Borrower nor any Consolidated
-----------
Subsidiaries shall (a) suffer or permit dissolution or liquidation either in
whole or in part (except as may be permitted under Section 5.05), or (b) redeem
or retire any shares of its own stock or that of any Consolidated Subsidiary,
except (i) through corporate reorganization to the extent permitted by Section
5.05, or (ii) solely in accordance with its policies and programs approved by
the Parent's Board of Directors from time to time, but in no event during an
uncured Event of Default.
SECTION 5.05. Consolidations, Mergers and Sales of Assets. No
-------------------------------------------
Borrower will, nor will the Parent permit any Consolidated Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of its assets to, any other Person, or discontinue or
eliminate any Subsidiary or division, provided that (a) any Borrower may merge
--------
with another Person (provided that in the event of such merger involving the
Parent, the Parent is the surviving Person) if (i) such Person was organized
under the laws of the United States of America or one of its states, (ii) a
Borrower is the corporation surviving such merger and (iii) immediately after
giving effect to such merger, no Default shall have occurred and be continuing,
(b) Subsidiaries may merge with one another, and (c) the foregoing limitation on
the sale, lease or other transfer of assets and on the discontinuation or
elimination of a Subsidiary or division shall not prohibit, during any Fiscal
Quarter, a transfer of assets or the discontinuance or elimination of a
Subsidiary or division (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred or utilized in a
Subsidiary or division to be so discontinued, when combined with all other
assets transferred, and all other assets utilized in all other Subsidiaries or
48
divisions discontinued, in any Fiscal Year, either (x) constituted more than 20%
of Consolidated Total Assets measured as of the end of the immediately preceding
Fiscal Year, or (y) contributed more than 20% of Consolidated Operating Profits
for the immediately preceding Fiscal Year. Notwithstanding the foregoing, in no
event shall any disposition of assets permitted in this Section 5.05 be
permitted in the event that after such disposition (x) Consolidated Total Assets
shall be less than $817,000,000 (which amount equals 80% of Consolidated Total
Assets as of December 31, 1994), or (y) assets not so disposed of shall have
contributed less than $171,286,000 (which amount equals 80% of Consolidated
Operating Profits for the Fiscal Year ending December 31, 1994) to Consolidated
Operating Profits as of the end of the immediately preceding Fiscal Year.
SECTION 5.06. Use of Proceeds. The Borrowers will use the proceeds of
---------------
the Loans hereunder for general corporate purposes (in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations U and X and the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations thereunder);
provided, that in the event the Parent or any Borrower intends to use the
- --------
proceeds of any of the Loans hereunder to finance or refinance, directly or
indirectly, an Acquisition of any Person (or the acquisition of (i) more than
50% of the publicly traded stock (of any class) of any Person or (ii) any of the
publicly traded stock (of any class) of any Person after the Parent, such
Borrower or any of the Subsidiaries shall have been required to file a Schedule
13D under the Securities Exchange Act of 1934, as amended, with respect to such
stock), then unless such Acquisition (or such other acquisition) has been
approved by the board of directors of such Person or officers thereof duly
authorized to do so, then (A) the Parent or such Borrower shall give the Agent
and the Banks written notice, not less than 10 days prior to the earlier of (x)
the public announcement or other commencement of a tender offer or (y) the
commencement of solicitation of proxies in the opposition to the Board of
Directors of the Person proposed to be acquired, of such intent (which notice
shall describe the proposed Acquisition or such other acquisition in reasonable
detail), and (B) notwithstanding any other provision of the Credit Agreement,
each Bank shall have the right to assign all of its interest in its Loans and
Commitments under the Facility, after first offering such assignment of its
interest to each of the other Banks, without the consent of the Parent or the
Agent.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The Parent
--------------------------------------
will, and will cause each of the Subsidiaries and each member of the Controlled
Group to, comply with applicable laws (including but not limited to ERISA),
regulations and similar
49
requirements of governmental authorities (including but not limited to PBGC),
except (i) where the necessity of such compliance is being contested in good
faith through appropriate proceedings, or (ii) where the failure to do so would
not have a Material Adverse Effect. The Parent will, and will cause each of the
Subsidiaries to, pay prior to the time the same become delinquent all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Parent or any Consolidated Subsidiary, except (i) liabilities being contested in
good faith and against which, if requested by the Agent, the Parent will set up
reserves in accordance with GAAP, or (ii) where the failure to do so would not
have a Material Adverse Effect.
SECTION 5.08. Insurance. Each Borrower will maintain, and the Parent
---------
will cause each of the Subsidiaries to maintain (either in the name of such
Borrower or in such Consolidated Subsidiary's own name), with financially sound
and reputable insurance companies, insurance on all its property material to
its business in comparable amounts and against such risks as are usually insured
against in the same general area by companies of established repute engaged in
the same or similar business.
SECTION 5.09. Change in Fiscal Year. No Borrower will change its
---------------------
Fiscal Year without the consent of the Required Banks.
SECTION 5.10. Maintenance of Property. Each Borrower shall, and the
-----------------------
Parent shall cause each Consolidated Subsidiary to, maintain all of its
properties and assets in good condition, repair and working order, ordinary wear
and tear excepted, except where the failure to do so would not have a Material
Adverse Effect.
SECTION 5.11. Environmental Notices. Upon becoming aware of such
---------------------
matters, the Parent shall furnish to the Banks and the Agent prompt written
notice of all Environmental Liabilities, pending or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing, in each case if the same would have a Material Adverse
Effect.
SECTION 5.12. Environmental Matters. Except as set forth in Schedule
---------------------
5.12, as revised from time to time, neither any Borrower nor any Consolidated
Subsidiary will, and the Parent will not permit any Third Party to, use,
produce, manufacture, process, treat, recycle, generate, store, dispose of,
manage at, or otherwise handle, or ship or transport to or from the
50
Properties any Hazardous Materials, except for Hazardous Materials such as
cleaning solvents, pesticides and other similar materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed,
managed, or otherwise handled in minimal amounts in the ordinary course of
business in compliance with all applicable Environmental Requirements in each
case where the failure to comply would not have a Material Adverse Effect.
SECTION 5.13. Environmental Release. Each Borrower (and the Parent,
---------------------
with respect to the Subsidiaries) agrees that upon the occurrence of an
Environmental Release at or on any of the Properties owned by it or any
Consolidated Subsidiary, it will take appropriate action required by applicable
law, except in such cases where the failure to take such action would not have a
Material Adverse Effect.
SECTION 5.14. Transactions with Affiliates. Neither any Borrower nor
----------------------------
any of its Consolidated Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of such Borrower or such Subsidiary (which
Affiliate is not a Borrower or a Wholly Owned Subsidiary), except as permitted
by law and in the ordinary course of business and pursuant to reasonable terms
which are no less favorable to such Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.15. Restricted Investments. The Parent will not, and will
----------------------
not permit any of its Subsidiaries to, make any Restricted Investments unless,
after giving effect thereto, the aggregate amount of all such Investments made,
together with the aggregate of all loans and advances permitted by clause (iv)
of Section 5.16, does not exceed the sum of (A) $130,000,000, plus (B) 25% of
----
Consolidated Net Income during each Fiscal Quarter commencing after March 31,
1995 in which there was a net profit on a consolidated basis and less (C) 100%
----
of Consolidated Net Income during each Fiscal Quarter commencing after March 31,
1995 in which there was a net loss on a consolidated basis; provided that after
--------
giving effect to the making of any Restricted Investments permitted by this
Section, the Borrowers will be in full compliance with all the provisions of
this Agreement.
SECTION 5.16. Loans or Advances. Neither the Parent nor any of its
-----------------
Consolidated Subsidiaries shall make loans or advances to any Person except: (i)
loans or advances to and guaranties in favor of employees in the ordinary course
of business; (ii) deposits required by government agencies or public utilities;
(iii) intercompany loans or advances between the Parent and the Consolidated
Subsidiaries and vice versa; and (iv) loans or advances in an aggregate amount
which, together with
51
Restricted Investments permitted by Section 5.15, do not exceed the sum of (A)
$130,000,000, plus (B) 25% of Consolidated Net Income during each Fiscal Quarter
----
commencing after March 31, 1995 in which there was a net profit on a
consolidated basis and less (C) 100% of Consolidated Net Income during each
----
Fiscal Quarter commencing after March 31, 1995 in which there was a net loss on
a consolidated basis; provided that after giving effect to the making of any
--------
loans, advances or deposits permitted by this Section, the Borrowers will be in
full compliance with all the provisions of this Agreement.
SECTION 5.17. Debt of Consolidated Subsidiaries. The Borrowers (other
---------------------------------
than the Parent) shall not, and the Parent shall not permit any other
Consolidated Subsidiary to, incur or permit to exist any Debt not in existence
on the Closing Date, and extensions or renewals thereof, other than (i) the
obligations to the Banks under this Agreement; (ii) Debt of the types described
in clause (vii) of the definition of Debt which is incurred in the ordinary
course of business in connection with (1) the sale or purchase of goods, or (2)
to assure performance of any Subsidiaries' service contracts, operating leases,
obligations to a utility or a governmental entity, or worker's compensation
obligations; and (iii) Debt (including Debt secured by Liens permitted by
Section 5.18) not exceeding an aggregate amount outstanding at any time equal to
20% of Consolidated Net Tangible Assets.
Any corporation which becomes a Consolidated Subsidiary after the date hereof
shall for all purposes of this Section be deemed to have created, assumed or
incurred at the time it becomes a Consolidated Subsidiary all Debt of such
corporation existing immediately after it becomes a Consolidated Subsidiary.
SECTION 5.18. Negative Pledge. The Borrowers shall not, and the
---------------
Parent shall not permit any Consolidated Subsidiary to, create, assume or suffer
to exist any Lien on any asset now owned or hereafter acquired by it, except (i)
purchase money security interests in goods purchased in the ordinary course of
business and for which the purchase price therefor is paid within 120 days of
such purchase, and (ii) Liens securing Debt (other than indebtedness represented
by the Notes) in an aggregate principal amount at any time outstanding which
does not exceed 20% of Consolidated Net Tangible Assets.
SECTION 5.19. Fixed Charges Coverage. At the end of each Fiscal
----------------------
Quarter, commencing with the Fiscal Quarter ending March 31, 1995, the ratio of
Income Available for Fixed Charges to Consolidated Fixed Charges for the Fiscal
Quarter just ended and the immediately preceding 3 Fiscal Quarters shall not
have been less than 2.5 to 1.0; provided, however, that if the CSC Put
--------
52
is funded, such ratio shall be greater than 2.0 to 1.0 at the end of the Fiscal
Quarter in which the CSC Put is funded and at the end of each of the immediately
succeeding 3 Fiscal Quarters.
SECTION 5.20. Ratio of Net Funded Debt to Cash Flow. At the end of
-------------------------------------
each Fiscal Quarter, the ratio of Net Funded Debt to Cash Flow for the Fiscal
Quarter just ended shall be less than 4.0 to 1.0; provided, however, that if the
--------
CSC Put is funded, such ratio shall be less than 4.5 to 1.0 at the end of the
Fiscal Quarter in which the CSC Put is funded and at the end of the immediately
succeeding 3 Fiscal Quarters.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
-----------------
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay (i) when due any principal of any
Loan or (ii) any interest on any Loan within 5 Domestic Business Days after
such interest shall become due, or (iii) any fee or other amount payable
hereunder within 5 Domestic Business Days after such fee or other amount
becomes due; or
(b) the Borrowers shall fail to observe or perform any covenant (i)
contained in Sections 5.17 or 5.18 and such failure shall not have been
cured within 15 days after the earlier to occur of (1) written notice
thereof has been given to the Parent by the Agent at the request of any
Bank or (2) the Parent otherwise becomes aware of any such failure, or (ii)
contained in Sections 5.01(e), 5.02(b), 5.02(c), 5.03 to 5.06, inclusive,
5.15, 5.16, 5.19 or 5.20; or
(c) the Borrowers shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by
paragraph (a) or (b) above) and such failure shall not have been cured
within 30 days after the earlier to occur of (i) written notice thereof has
been given to the Parent by the Agent at the request of any Bank or (ii)
the Parent otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by
the Borrower in Article IV of this Agreement or in any certificate,
financial statement or
53
other document delivered pursuant to this Agreement shall prove to have
been incorrect or misleading in any material respect when made (or deemed
made); or
(e) the Borrower or any Consolidated Subsidiary shall fail to make any
payment in respect of Debt in an aggregate amount in excess of $10,000,000
outstanding (other than the Notes) when due or within any applicable grace
period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt of the Borrower or any Consolidated
Subsidiary in an aggregate amount outstanding equal to or in excess of
$20,000,000 (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Consolidated
Subsidiary which can be effected by the holder of such Debt upon the
occurrence of an event in the nature of a default) or enables the holders
of such Debt or any Person acting on such holders' behalf to accelerate the
maturity thereof (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Consolidated
Subsidiary which can be effected by the holder of such Debt upon the
occurrence of an event in the nature of a default), excluding, however,
from the foregoing paragraph (f), (i) any "put" of Debt to a Borrower or
any Consolidated Subsidiary pursuant to the CSC Put, and (ii) any "put" to
a Borrower or any Consolidated Subsidiary of Debt evidenced by the Parent's
6 1/2% Senior Notes due 2003 pursuant to the Indenture relating thereto,
unless the event resulting in such "put" under this clause (ii) shall have
a Material Adverse Effect; or
(g) the Borrower or any Consolidated Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Consolidated Subsidiary seeking liquidation,
reorganization or other
54
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Borrower or any
Consolidated Subsidiary under the federal bankruptcy laws as now or
hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay
to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing which results in an obligation which would
have a Material Adverse Effect; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be appointed
to administer any such Plan or Plans or a proceeding shall be instituted by
a fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5)
of ERISA and such proceeding shall not have been dismissed within 30 days
thereafter which results in an obligation which would have a Material
Adverse Effect; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any such Plan or
Plans must be terminated which results in an obligation which would have a
Material Adverse Effect; or the Borrower or any other member of the
Controlled Group shall enter into, contribute or be obligated to contribute
to, terminate or incur any withdrawal liability with respect to, a
Multiemployer Plan which results in an obligation which would have a
Material Adverse Effect; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $10,000,000 (exclusive of the portion of the
judgment amount fully covered by insurance where the insurer has admitted
liability in respect of such judgment in writing) shall be rendered against
the Borrower or any Consolidated Subsidiary and (i) such judgment or order
shall not be discharged within or shall continue unsatisfied and unstayed
for a period of 30 days after the entry thereof, or (ii) such Borrower or
the applicable Consolidated Subsidiary shall not appeal such judgment
within such 30 day period and the execution of such judgment shall not be
stayed during such appeal; or
55
(k) a federal tax lien shall be filed against the Borrower or any
Consolidated Subsidiary under Section 6323 of the Code or a lien of the
PBGC shall be filed against the Borrower or any Consolidated Subsidiary
under Section 4068 of ERISA and in either case the amount of such lien
shall exceed $5,000,000 and shall remain undischarged for a period of 25
days after the date of filing; or
(l) (i) any Person or two or more Persons acting in concert shall,
after the Closing Date, have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 25% or more of the outstanding shares
of the voting stock of the Borrower; or (ii) as of any date a majority of
the Board of Directors of the Borrower consists of individuals who were not
either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board
of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors
by the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause
(B); or
(m) any breach or default occurs under the Parent Guaranty
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrowers terminate the Commitments and they shall
thereupon terminate, (ii) any Bank may terminate its obligation to fund a Money
Market Loan in connection with any relevant Money Market Quote, and (iii) if
requested by the Required Banks, by notice to the Borrowers declare the Notes
(together with accrued interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers
together with interest at the Default Rate accruing on the principal amount
thereof from and after the date of such Event of Default; provided that if any
--------
Event of Default specified in paragraph (g) or (h) above occurs with respect to
any Borrower, without any notice to such Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon terminate and the Notes (together
with accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default. Notwithstanding the foregoing, the
56
Agent shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
-----------------
Borrower of any Default under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. Each Bank hereby
----------------------------------
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement or
any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by any Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other Loan Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or wilful
misconduct. The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-
in-fact selected by it with reasonable care. The provisions of this Article VII
are solely for the benefit of the Agent and the Banks, and the Borrower shall
not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement and under
the other Loan Documents, the Agent shall act solely as agent of the Banks and
does not
57
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Borrower. The duties of the
Agent shall be ministerial and administrative in nature, and the Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely
-----------------
upon any certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have
--------
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a Default or an Event
of Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent as a Bank. With respect to the Loans
-------------------------
made by it, Wachovia in its capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include Wachovia in its individual
capacity. The Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally
58
engage in any kind of banking, trust or other business with the Borrowers (and
any of their Affiliates) as if it were not acting as the Agent, and the Agent
may accept fees and other consideration from the Borrowers (in addition to any
agency fees and arrangement fees heretofore agreed to between the Borrowers and
the Agent) for services in connection with this Agreement or any other Loan
Document or otherwise without having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to
---------------
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrowers, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however that no Bank shall be
-------- -------
liable for any of the foregoing to the extent they arise from the gross
negligence or wilful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06 Consequential Damages. THE AGENT SHALL NOT BE
---------------------
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may deem and
------------------------------
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have been
filed with the Agent and the provisions of Section 9.08(c) have been satisfied.
Any requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
59
Note or of any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank agrees
------------------------------------
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself informed as to the
performance or observance by the Borrowers of this Agreement or any of the other
Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of the Borrowers or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly required of
--------------
the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
-------------------------------
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrowers and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment
60
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest
Period, or
(b) the Required Banks advise the Agent that the London Interbank
Offered Rate or IBOR, as the case may be, as determined by the Agent will
not adequately and fairly reflect the cost to such Banks of funding the
relevant type of Fixed Rate Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the type of Fixed Rate Loans specified in such notice shall be suspended.
Unless the relevant Borrower notifies the Agent at least 2 Domestic Business
Days before the date of any Borrowing of such type of Fixed Rate Loans for which
a Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the adoption of
----------
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such agency being referred to as an "Authority" and
any such event being referred to as a "Change of Law"), or compliance by any
Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of any Authority shall make it unlawful or impossible
for any Bank
61
(or its Lending Office) to make, maintain or fund its Euro-Dollar Loans or
Foreign Currency Money Market Loans and such Bank shall so notify the Agent, the
Agent shall forthwith give notice thereof to the other Banks and the Borrowers,
whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans or Foreign Currency Money Market Loans, as
the case may be, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Lending Office
if such designation will avoid the need for giving such notice and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund any
of its outstanding Euro-Dollar Loans or Foreign Currency Money Market Loans, as
the case may be, to maturity and shall so specify in such notice, the relevant
Borrower shall immediately prepay in full the then outstanding principal amount
of each Euro-Dollar Loan or Foreign Currency Money Market Loans, as the case may
be, of such Bank, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan or Foreign Currency Money Market Loans, as
the case may be, the relevant Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans or Foreign Currency
Money Market Loans, as the case may be, of the other Banks), and such Bank shall
make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the
---------------------------------
date hereof, a Change of Law or compliance by any Bank (or its Lending Office)
with any request or directive (whether or not having the force of law) of any
Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, (1) any such
requirement imposed by the Board of Governors of the Federal Reserve
System, and (2) with respect to any Euro-Dollar Loan, any reserve
requirement described in the definition of Euro-Dollar Reserve Percentage
in excess of the reserve requirement of the Agent, but excluding, with
respect to any Foreign Currency Money Market Loan, any such requirement
described in the definition of Adjusted IBOR Rate) against assets of,
deposits with or for the account of, or credit extended by, any Bank (or
its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on the United
States market for certificates of deposit or the London interbank market
any other condition affecting
62
its Fixed Rate Loans, its Notes or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the relevant Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligations hereunder to a level
below that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then within
15 days after demand by such Bank (with a copy to the Agent), the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such reduction, but in no event shall the Borrower be liable for amounts
incurred more than 90 days prior to receipt of such demand.
(c) Each Bank will promptly notify the Borrowers and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) Notwithstanding the foregoing, in the event the Borrowers are
required to pay any Bank amounts pursuant to Section 2.12 or this Section 8.03
and the designation of a different Lending Office pursuant to Section 2.12 or
Section
63
8.03(c) will not avoid the need for compensation to such Bank (an "Affected
Bank"), the Borrower may give notice to such Affected Bank (with copies to the
Agent) that it wishes to seek one or more assignees (which may be one or more of
the Banks) to assume the Commitment of such Affected Bank and to purchase its
outstanding Loans and Notes; provided, that if there is more than one Affected
--------
Bank which has requested substantially and proportionally equal compensation
hereunder, the Borrower shall elect to seek an assignee to assume the
Commitments of all such Affected Banks. Each Affected Bank agrees to sell its
Commitment, Loans, Notes and interest in this Agreement in accordance with
Section 9.08(c) to any such assignee for an amount equal to the sum of the
outstanding unpaid principal of and accrued interest on such Loans and Notes,
plus all other fees and amounts (including, without limitation, any compensation
due to such Affected Banks under Section 2.12 or this Section 8.03) due to such
Affected Bank hereunder calculated, in each case, to the date such Loans, Notes
and interest are purchased. Upon such sale or prepayment, each such Affected
Bank shall have no further commitment or other obligation to the Borrower
hereunder or under any Note.
(e) The provisions of this Section 8.03 (i) shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee and (ii) shall constitute a continuing
agreement and shall survive the termination of this Agreement and the payment in
full or cancellation of the Notes.
SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans Substituted
-----------------------------------------------------
for Affected Fixed Rate Loans. If (i) the obligation of any Bank to make or
- -----------------------------
maintain any type of Fixed Rate Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section 8.03, and the
Borrower shall, by at least 5 Euro-Dollar Business Days' or Foreign Currency
Business Days, as applicable, prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-
Dollar Loans or Foreign Currency Money Market Loans, as the case may be,
shall be made instead as Base Rate Loans, except that if such demand for
compensation relates to Foreign Currency Money Market Loans, but not Euro-
Dollar Loans, as either Base Rate Loans or Euro-Dollar Loans, as the
relevant Borrower may elect in the notice to such Bank through the Agent
referred to hereinabove (in all
64
cases interest and principal on such Loans shall be payable
contemporaneously with the related Fixed Rate Loans of the other Banks),
and
(b) after each of its Euro-Dollar Loans or Foreign Currency Money
Market Loans, as the case may be, has been repaid, all payments of
principal which would otherwise be applied to repay such Fixed Rate Loans
shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the request of any Bank, delivered
------------
to the Borrower and the Agent, the Borrowers shall pay to such Bank such amount
or amounts as shall compensate such Bank for any loss, cost or expense incurred
by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, 2.11, 6.01,
8.02 or otherwise) of a Fixed Rate Loan on a date other than the last day of an
Interest Period for such Fixed Rate Loan; or
(b) if the Banks have permitted prepayment of any Fixed Rate Loan, any
failure by the relevant Borrower to prepay such Fixed Rate Loan on the date for
such prepayment specified in the relevant notice of prepayment hereunder; or
(c) any failure by a Borrower to borrow a Fixed Rate Loan on the date
for the Fixed Rate Borrowing of which such Fixed Rate Loan is a part specified
in the applicable Notice of Borrowing delivered pursuant to Section 2.02 or
notification of acceptance of Money Market Quotes pursuant to Section 2.03(e);
or
(d) any failure by a Borrower to pay a Foreign Currency Money Market
Loan in the applicable Foreign Currency;
such compensation to include, without limitation, as applicable: (A) an amount
equal to the excess, if any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not prepaid or borrowed for the
period from the date of such payment, prepayment or failure to prepay or borrow
to the last day of the then current Interest Period for such Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for such
Fixed Rate Loan which would have commenced on the date of such failure to prepay
or borrow) at the applicable rate of interest for such Fixed Rate Loan provided
for herein over (y) the amount of interest (as reasonably determined by such
Bank) such Bank would have paid on (i) deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading banks in the
London interbank market (if such Fixed Rate Loan is a Euro-Dollar Loan), or (ii)
65
any deposit in a Foreign Currency of comparable amounts having terms comparable
to such period placed with it by lending banks in the applicable interbank
market for such Foreign Currency (if such Fixed Rate Loan is a Foreign Currency
Money Market Loan); or (B) any such loss, cost or expense incurred by such Bank
in liquidating or closing out any foreign currency contract undertaken by such
Bank in funding or maintaining such Fixed Rate Loan (if such Fixed Rate Loan is
a Foreign Currency Money Market Loan).
SECTION 8.06. Failure to Pay in Foreign Currency. If any Borrower is
----------------------------------
unable for any reason to effect payment in a Foreign Currency as required by
this Agreement or if any Borrower shall default in the Foreign Currency, each
Bank may, through the Agent, require such payment to be made in Dollars in the
Dollar Equivalent amount of such payment. In any case in which any Borrower
shall make such payment in Dollars, such Borrower agrees to hold the Banks
harmless from any loss incurred by the Banks arising from any change in the
value of Dollars in relation to such Foreign Currency between the date such
payment became due and the date of payment thereof.
SECTION 8.07. Judgment Currency. If for the purpose of obtaining
-----------------
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
exchange used shall be the Agent's spot rate of exchange for the purchase of the
Foreign Currency with such other currency at the close of business on the
Foreign Currency Business Day preceding the date on which judgment is given or
any order for payment is made. The obligation of the relevant Borrower in
respect of any amount due from it hereunder shall, notwithstanding any judgment
or order for a liquidated sum or sums in respect of amounts due hereunder or
under any judgment or order in any other currency or otherwise be discharged
only to the extent that on the Foreign Currency Business Day following receipt
by the Agent of any payment in a currency other than the relevant Foreign
Currency the Agent is able (in accordance with normal banking procedures) to
purchase an amount of the relevant Foreign Currency with such other currency
equal to the amount owed. If the amount of the relevant Foreign Currency that
the Agent is able to purchase with such other currency is less than the amount
due in the relevant Foreign Currency, notwithstanding any judgment or order,
such Borrower shall indemnify the Banks for the shortfall.
66
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01. Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth on the signature pages hereof or such other address or
telecopier number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the appropriate confirmation is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
--------
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
----------
Bank in exercising any right, power or privilege hereunder or under any Note or
other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrowers shall pay
---------------------------
(i) all reasonable out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Banks and the Agent, in connection with
the preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all actual out-of-pocket expenses incurred by the Agent and the Banks, including
reasonable fees and the actual disbursements of outside counsel or the
equivalent allocated costs of in-house counsel, in connection with such Default
and collection and other enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents. The Borrowers shall indemnify the Agent and each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any Authority
by reason of the execution and delivery of this Agreement or the other Loan
Documents.
67
SECTION 9.04. Indemnification. The Borrowers shall indemnify the
---------------
Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all actual losses, liabilities, claims or damages to which any of them may
become subject, insofar as such losses, liabilities, claims or damages arise out
of or result from any actual or proposed use by the Borrowers of the proceeds of
any extension of credit by any Bank hereunder or breach by the Borrowers of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Banks to enforce this Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and the Borrowers shall reimburse the
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or wilful misconduct of the
Person to be indemnified; provided, however, that a Borrower shall not be liable
-----------------
under this Section 9.04 in connection with any claim under any cause of action
by or against any Person indemnified under this Section 9.04 with respect to
which and solely to the extent to which such Borrower or an Affiliate of such
Borrower is both (i) adverse to the Person being indemnified with respect to
such claim under such cause of action, and (ii) the prevailing party with
respect to such claim under such cause of action.
SECTION 9.05 Setoff; Sharing of Setoffs. (a) Each Borrower agrees
--------------------------
that the Agent and each Bank shall have a lien for all indebtedness and
obligations owing to them from such Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts
thereof, now or hereafter pledged, mortgaged, transferred or assigned to the
Agent or any such Bank or otherwise in the possession or control of the Agent or
any such Bank for any purpose for the account or benefit of such Borrower and
including any balance of any deposit account or of any credit of such Borrower
with the Agent or any such Bank, whether now existing or hereafter established
hereby authorizing the Agent and each Bank at any time or times with or without
prior notice to apply such balances or any part thereof to such of the
indebtedness and obligations owing by such Borrower to the Banks and/or the
Agent then past due and in such amounts as they may elect, and whether or not
the collateral, if any, or the responsibility of other Persons primarily,
secondarily or otherwise liable may be deemed adequate. For the purposes of
this paragraph, all remittances and property shall be
68
deemed to be in the possession of the Agent or any such Bank as soon as the same
may be put in transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
--------
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of this
----------------------
Agreement, the Notes, the Parent Guaranty or any other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrowers or the Parent (with respect to the Parent Guaranty) and
the Required Banks (and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that, no such amendment or waiver shall, unless
--------
signed by all Banks, (i) change the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) change the principal of or rate of interest
on
69
any Loan or any fees (other than fees payable to the Agent) hereunder, (iii)
change the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) change the amount of principal, interest or fees due on
any date fixed for the payment thereof, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Notes, or (vii) release any Guarantee given to support payment of the
Loans.
(b) The Borrowers will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Bank shall be informed thereof by the Borrowers and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be delivered
by the Borrowers to each Bank forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks.
The Borrowers will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
--------------------------
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. 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; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
70
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the
change of any date fixed for the payment of principal of or interest on the
related loan or loans, (ii) the change of the amount of any principal, interest
or fees due on any date fixed for the payment thereof with respect to the
related loan or loans, (iii) the change of the principal of the related loan or
loans, (iv) any change in the rate at which either interest is payable thereon
or (if the Participant is entitled to any part thereof) fee is payable hereunder
from the rate at which the Participant is entitled to receive interest or fee
(as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Loans, or (vi) the release of any Guarantee given to support
payment of the Loans. Each Bank selling a participating interest in any Loan,
Note, Commitment or other interest under this Agreement, other than a Money
Market Loan or Money Market Loan Note or participating interest therein, shall,
within 10 Domestic Business Days of such sale, provide the Borrowers and the
Agent with written notification stating that such sale has occurred and
identifying the Participant and the interest purchased by such Participant. The
Borrowers agree that each Participant shall be entitled to the benefits of
Article VIII with respect to its participation in Loans outstanding from time to
time.
(c) Subject to the proviso set forth below, any Bank may at any time
assign to one or more banks or financial institutions (each an "Assignee") all,
or in the case of its Syndicated Loans and Commitments, a proportionate part of
all its Syndicated Loans and Commitments, of its rights and obligations under
this Agreement, the Notes and the other Loan Documents, and such Assignee shall
assume all such rights and obligations, pursuant to an Assignment and
Acceptance, executed by such Assignee, such transferor Bank and the Agent (and,
in the case of an Assignee that is not then a Bank, subject to clause (iii)
below, by the Parent); provided that (i) no interest may be sold by a Bank
-------------
pursuant to this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank's Commitment, (ii) if a Bank is
assigning only a
71
portion of its Commitment, then, the amount of the Commitment being assigned
(determined as of the effective date of the assignment) shall be in an amount
not less than $10,000,000, and (iii) except during the continuance of a Default,
no interest may be sold by a Bank pursuant to this paragraph (c) to any Assignee
without the prior written consent of the Parent and the Agent, which consent
shall not be unreasonably withheld in connection with a transfer to any Assignee
which is then a Bank. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Agent and (if applicable) the Parent,
(B) delivery of an executed copy of the Assignment and Acceptance to the Parent
and the Agent, (C) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, and (D) payment of a processing and recordation fee of $2,500 to the
Agent, such Assignee shall for all purposes be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank under this Agreement to
the same extent as if it were an original party hereto with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by the Parent, the Banks or the Agent shall be
required. Upon the consummation of any transfer to an Assignee pursuant to this
paragraph (c), the transferor Bank, the Agent and the Borrowers shall make
appropriate arrangements so that, if required, new Notes are issued to such
Assignee.
(d) Subject to the provisions of Section 9.09, the Borrowers
authorize each Bank to disclose to any Participant, Assignee or other transferee
(each a "Transferee") and any prospective Transferee any and all financial
information in such Bank's possession concerning the Borrowers which has been
delivered to such Bank by the Borrowers pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 2.12(d), Section 8.03, or Section 8.05 than the transferor Bank
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding,
any Bank may assign and pledge all or any portion of the Loans and/or
obligations owing to it to any
72
Federal Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank, provided that
any payment in respect of such assigned Loans and/or obligations made by the
Borrower to the assigning and/or pledging Bank in accordance with the terms of
this Agreement shall satisfy the Borrowers' obligations hereunder in respect of
such assigned Loans and/or obligations to the extent of such payment. No such
assignment shall release the assigning and/or pledging Bank from its obligations
hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
---------------
commercially reasonable efforts to keep any information delivered or made
available by the Borrowers to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided, however that nothing herein
-------- -------
shall prevent any Bank from disclosing such information (i) to any other Bank,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having jurisdiction over
such Bank, (iv) which has been publicly disclosed, (v) to the extent reasonably
required in connection with any litigation to which the Agent, any Bank or their
respective Affiliates may be a party, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors and (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights hereunder
which has agreed in writing to be bound by the provisions of this Section 9.09;
provided that should disclosure of any such confidential information be required
- --------
by virtue of clause (ii) of the immediately preceding sentence, any relevant
Bank shall promptly notify the Borrowers of same (unless prohibited by such
order in clause (ii)) so as to allow the Borrower to seek a protective order or
to take any other appropriate action; provided, further, that, no Bank shall be
-------- ------- ----
required to delay compliance with any directive to disclose any such information
so as to allow the Borrowers to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby represents
-----------------------
that it is a commercial lender or financial institution which makes Loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however that,
-----------------
subject to Section 9.08, the disposition of the Note or Notes held by that Bank
shall at all times be within its exclusive control.
73
SECTION 9.11. Obligations Several. The obligations of each Bank
-------------------
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each Note shall be
-----------
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more of the provisions
------------
contained in this Agreement, the Notes, the Parent Guaranty or any of the other
Loan Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of interest, and
--------
all charges, amounts or fees contracted for, charged or collected pursuant to
this Agreement, the Notes or the other Loan Documents and deemed to be interest
under applicable law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless a Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrowers not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the Agent or
the Banks hereunder or under any of the Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate of unearned
interest as and to the extent required by applicable law. By the execution of
this Agreement, each Borrower covenants that (i) the credit or return of any
Excess shall constitute the acceptance by such Borrower of such Excess, and (ii)
such
74
Borrower shall not seek or pursue any other remedy, legal or equitable , against
the Agent or any Bank, based in whole or in part upon contracting for charging
or receiving any Interest in excess of the Maximum Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by the Agent or any Bank, all interest at any time contracted for,
charged or received from the Borrower in connection with this Agreement, the
Notes or any of the other Loan Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Commitments. The Borrowers, the Agent and each
Bank shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee or premium rather than
as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section shall be deemed to be incorporated into each Note and
each of the other Loan Documents (whether or not any provision of this Section
is referred to therein). All such Loan Documents and communications relating to
any Interest owed by the Borrowers and all figures set forth therein shall, for
the sole purpose of computing the extent of obligations hereunder and under the
Notes and the other Loan Documents be automatically recomputed by the Borrowers,
and by any court considering the same, to give effect to the adjustments or
credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement or any
--------------
of the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. Each
---------------------------------------------
Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (d) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrowers. Nothing herein contained,
75
however, shall prevent the Agent from bringing any action or exercising any
rights against any security and against the Borrower personally, and against any
assets of the Borrowers, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in any
------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks hereby
------------------------
severally (and not jointly) represents to the Borrowers that no part of the
funds to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section,
the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
76
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, under seal, by their respective authorized officers as of the
day and year first above written.
EQUIFAX INC.
By:________________________________________
Title:
1600 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Assistant Treasurer
Telecopier number: (404) 888-3528
Confirmation number: (404) 885-8059
77
COMMITMENTS WACHOVIA BANK OF GEORGIA, N.A.,
- -----------
as Agent and as a Bank (SEAL)
$100,000,000
- ------------
By:___________________________________
Title:
Lending Office
--------------
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Telecopier number: 404-332-4005
Confirmation number: 404-332-6971
78
THE FIRST NATIONAL BANK
OF CHICAGO (SEAL)
$75,000,000
----------
By:___________________________________
Title:
Lending Office
--------------
One First National Plaza
Suite 0374
Chicago, Illinois 60670
Attention: Mr. Steven B. Farley
Telecopier number: (312) 732-3885
Confirmation number: (312) 732-5995
79
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (SEAL)
$75,000,000
----------
By:___________________________________
Title:
Lending Office
--------------
1230 Peachtree Street
Suite 3600
Atlanta, Georgia 30309
Attention: Mr. Randall Portwood
Telecopier number: (404) 249-6938
Confirmation number: (404) 249-6946
80
TRUST COMPANY BANK
(SEAL)
$75,000,000
----------
By:____________________________________
Title:
Lending Office
--------------
25 Park Place
23rd Floor
Atlanta, Georgia 30302
Attention: Ms. Julia Taylor
Telecopier number: (404) 588-8833
Confirmation number: (404) 588-8398
81
NATIONSBANK OF GEORGIA, N.A. (SEAL)
$50,000,000
----------
By:__________________________________
Title:
Lending Office
--------------
600 Peachtree Street, N.E.
21st Floor
Atlanta, Georgia 30308
Attention: Mr. James S. Scully
Telecopier number: (404) 607-5524
Confirmation number: (404) 607-5524
82
CIBC INC. (SEAL)
$75,000,000
----------
By:___________________________________
Title:
Lending Office
--------------
2727 Paces Ferry Road
Two Paces West, Suite 1200
Atlanta, Georgia 30339
Attention: Mr. Roger Colden
Telecopier number: (404) 319-4954
Confirmation number: (404) 319-4902
83
MELLON BANK (SEAL)
$50,000,000
----------
By:___________________________________
Title:
Lending Office
--------------
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258
Attention: Mr. Clifford A. Mull
Telecopier number: (412) 236-1914
Confirmation number: (412) 236-1196
84
FIRST UNION NATIONAL BANK OF
GEORGIA (SEAL)
$50,000,000
----------
By:_________________________________
Title:
Lending Office
--------------
999 Peachtree Street, N.E.
11th Floor
Atlanta, Georgia 30309
Attention: Mr. Tom Hackett
Telecopier number: (404) 225-4066
Confirmation number: (404) 827-7229
__________________
TOTAL COMMITMENTS:
$550,000,000
85
EXHIBIT A-1
-----------
FORM OF SYNDICATED LOAN NOTE
Atlanta, Georgia
August 2, 1995
For value received, ________________, a ___________ corporation (the
"Borrower"), promises to pay to the order of
__________________________________________________, a ____________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($____________), or such
lesser amount as shall equal the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below, on
the dates and in the amounts provided in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of this Syndicated Loan
Note on the dates and at the rate or rates provided for Syndicated Loans in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank of Georgia, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757,
or such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Loans made by the Bank, the respective maturities thereof, the
interest rates from time to time applicable thereto, and all repayments of the
principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
--------
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes referred
to in the Credit Agreement dated as of August 2, 1995 among the Equifax Inc.,
its Wholly Owned Subsidiaries parties thereto, the Banks listed on the signature
pages thereof and Wachovia Bank of Georgia, N.A., as Agent (as the same may be
amended and modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for
86
provisions for the optional and mandatory prepayment and the repayment hereof
and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated Loan Note
to be duly executed, under seal, by its duly authorized officer as of the day
and year first above written.
[BORROWER] (SEAL)
By: __________________________
Title:
87
Syndicated Dollar Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Base Rate, Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
88
EXHIBIT A-2
-----------
DOLLAR MONEY MARKET LOAN NOTE
As of August 2, 1995
For value received, ____________________________, a
___________________________________ (the "Borrower"), promises to pay to the
order of ___________________________________________, a _______________ (the
"Bank"), for the account of its Lending Office, the outstanding principal amount
of each Dollar Money Market Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below, on the dates and in the amounts provided
in the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each Dollar Money Market Loan on the dates and at the rate
or rates provided for in the Credit Agreement referred to below. Interest on
any overdue principal of and, to the extent permitted by law, overdue interest
on the principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank of Georgia, N.A., 191
Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such other address as
may be specified from time to time pursuant to the Credit Agreement.
All Dollar Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
--------
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Dollar Money Market Loan Note is one of the Dollar Money Market
Loan Notes referred to in the Credit Agreement dated as of August 2, 1995 among
Equifax Inc., its Wholly Owned Subsidiaries parties thereto, the Banks listed on
the signature pages thereof, Wachovia Bank of Georgia, N.A., as Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
89
IN WITNESS WHEREOF, the Borrower has caused this Dollar Money Market
Loan Note to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
[BORROWER] (SEAL)
By:__________________________________
Title:
90
Dollar Money Market Loan Note (cont'd)
DOLLAR MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
- -------------------------------------------------------------------------------
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
91
EXHIBIT A-3
-----------
FOREIGN CURRENCY MONEY MARKET LOAN NOTE
As of August 2, 1995
For value received, ____________________________, a
___________________________________ (the "Borrower"), promises to pay to the
order of ___________________________________________, a _______________ (the
"Bank"), for the account of its Lending Office, the outstanding principal amount
of each Foreign Currency Money Market Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below, on the dates and in the
amounts provided in the Credit Agreement. The Borrower promises to pay interest
on the unpaid principal amount of each Money Market Loan Note on the dates and
at the rate or rates provided for in the Credit Agreement referred to below.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the applicable Foreign
Currency for each such Foreign Currency Money Market Loan in immediately
available funds at the office of Wachovia Bank of Georgia, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303-1757, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Foreign Currency Money Market Loans made by the Bank, the
respective maturities thereof, Foreign Currency in which made, the interest
rates from time to time applicable thereto, and all repayments of the principal
thereof shall be recorded by the Bank and, prior to any transfer hereof,
endorsed by the Bank on the schedule attached hereto, or on a continuation of
such schedule attached to and made a part hereof; provided that the failure of
--------
the Bank to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Foreign Currency Money Market Loan Note is one of the Foreign
Currency Money Market Loan Notes referred to in the Credit Agreement dated as of
August 2, 1995 among Equifax Inc., its Wholly Owned Subsidiaries parties
thereto, the Banks listed on the signature pages thereof, Wachovia Bank of
Georgia, N.A., as Agent (as the same may be amended and modified from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory
92
prepayment and the repayment hereof and the acceleration of the maturity hereof.
IN WITNESS WHEREOF, the Borrower has caused this Foreign Currency
Money Market Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
[BORROWER] (SEAL)
By:_____________________________________
Title:
93
Foreign Currency Money Market Loan Note (cont'd)
FOREIGN CURRENCY MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
- ------------------------------------------------------------------------------
Principal
Amount
of Loan
and Amount of Stated
Interest Foreign Principal Maturity Notation
Date Rate Currency Repaid Date Made By
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
94
EXHIBIT B
---------
OPINION OF
COUNSEL FOR THE BORROWER
------------------------
[Dated as provided in Section 3.01 of the Credit
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: Syndications Group
Dear Sirs:
We have acted as counsel for Equifax Inc., a Georgia corporation (the
"Parent") and its Wholly Owned Subsidiaries (together with the Parent, in its
capacity as a borrower, the "Borrowers") in connection with the Credit Agreement
(the "Credit Agreement") dated as of August 2, 1995, among the Borrowers, the
banks listed on the signature pages thereof and Wachovia Bank of Georgia, N.A.,
as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Parent is a corporation duly incorporated, validly existing
and in good standing under the laws of Georgia, each other Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, as set forth on Schedule 4.08 to the
Credit Agreement, and each Borrower and has all corporate powers required to
carry on its business as now conducted.
95
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes and, with respect to the Parent, of the Parent
Guaranty (i) are within the Borrowers' or the Parent's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or by-
laws of the Borrowers or the Parent or of any agreement, judgment, injunction,
order, decree or other instrument which to our knowledge is binding upon the
Borrowers or the Parent and (v) to our knowledge, except as provided in the
Credit Agreement, do not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
3. The Credit Agreement and, with respect to the Parent, the Parent
Guaranty, constitutes a valid and binding agreement of the Borrowers or the
Parent, enforceable against the Borrowers or the Parent in accordance with its
terms, and the Notes constitute valid and binding obligations of the Borrowers,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
4. To our knowledge, there is no action, suit or proceeding pending,
or threatened, against or affecting the Borrowers or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official in
which there is a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of the Parent and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement or any Note.
5. Each of the Parent's Subsidiaries which is not a Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
6. Neither the Borrowers nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. Neither the Borrowers nor any of the Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a
96
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of Georgia and do not purport to
be experts on any laws other than the laws of the United States and the State of
Georgia and this opinion is rendered only with respect to such laws. We have
made no independent investigation of the laws of any other jurisdiction.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and Jones, Day, Reavis & Pogue
without our prior written consent.
Very truly yours,
97
EXHIBIT C
---------
OPINION OF
JONES, DAY, REAVIS & POGUE, SPECIAL COUNSEL
FOR THE AGENT
---------------
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of August 2, 1995, among Equifax Inc., a Georgia
corporation (the "Parent"), its Wholly Owned Subsidiaries parties thereto
(together with the Parent, in its capacity as a borrower, the "Borrowers"), the
banks listed on the signature pages thereof (the "Banks") and Wachovia Bank of
Georgia, N.A., as Agent (the "Agent"), and have acted as special counsel for the
Agent for the purpose of rendering this opinion pursuant to Section 3.01(d) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, and the Parent Guaranty by the Parent, we are of the
opinion that the Credit
98
Agreement constitutes a valid and binding agreement of the Borrower each Note
constitutes a valid and binding obligations of the Borrower, and the Parent
Guaranty constitutes a valid and binding obligations of the Parent, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement
and the Notes may be further limited by the laws of the State of Georgia;
provided, however, such additional laws do not, in our opinion, substantially
interfere with the practical realization of the benefits expressed in the Credit
Agreement, the Notes and the Parent Guaranty, except for the economic
consequences of any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia. We express no
opinion as to the effect of the compliance or noncompliance of the Agent or any
of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
99
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated __________ __, ____
Reference is made to the Credit Agreement dated as of August 2, 1995
(together with all amendments and modifications thereto, the "Credit Agreement")
among Equifax Inc., its Wholly Owned Subsidiaries parties thereto (the
"Borrowers"), the Banks from time to time parties thereto and Wachovia Bank of
Georgia, N.A., as Agent (the "Agent"). Terms defined in the Credit Agreement
are used herein with the same meaning.
________________________________________ (the "Assignor") and
_______________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a _____% interest (which on the Effective
Date hereof is $__________) in the Assignor's Commitment and a ______ interest
(which on the Effective Date hereof is $_______________) in the Syndicated Loans
and Money Market Loans owing to the Assignor and a ___% interest in the Notes
held by the Assignor (which on the Effective Date hereof is in the amount and
the Dollar Equivalent of $__________).
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder, that such interest is free and clear of any adverse claim and that
as of the date hereof its Commitment (without giving effect to assignments
thereof which have not yet become effective) is $__________ and the aggregate
outstanding principal amount of Syndicated Loans owing to it is
$______________[the aggregate principal amount of Dollar Money Market Loans
owing to it is $_________________ and the aggregate principal amount of Foreign
Currency Money Market Loans owing to it is the Dollar Equivalent of $________]
(without giving effect to assignments thereof which have not yet become
effective); (ii) makes no representation or warranty and assumes no
100
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iii) attaches the Note[s] referred to in paragraph 1 above and requests
that the Agent exchange such Note[s] for [(x)] a new Syndicated Loan Note dated
________________, ____ in the principal amount of $__________ , a new Dollar
Money Market Loan Note dated _________,_____, and a new Foreign Currency Money
Market Loan Note dated __________, ____, each payable to the order of the
Assignee [and (y) a new Syndicated Loan Note dated ________________, ____ in the
principal amount of $_____________ , a new Dollar Money Market Loan Note dated
_________________, ____ and a new Money Market Loan Note dated ______________,
____, each payable to the order of the Assignor].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are within
its corporate powers and have been duly authorized by all necessary corporate
action (viii) makes the representation and warranty contained in Section 9.18 of
the Credit Agreement [, and (ix) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all such
payments are subject to such taxes at a rate reduced by an applicable tax
treaty].
101
4. The Effective Date for this Assignment and Acceptance shall be
__________, ____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and execution by
the Parent] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent rights and obligations have been transferred to it by this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and (ii) the
Assignor shall, to the extent its rights and obligations have been transferred
to the Assignee by this Assignment and Acceptance, relinquish its rights (other
than under Sections 8.03, 9.03 and 9.04 of the Credit Agreement) and be released
from its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and execution by
the Parent] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the Effective
Date, the Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by the Agent
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:___________________________
Title:
[NAME OF ASSIGNEE]
By:___________________________
Title:
Lending Office:
[Address]
102
WACHOVIA BANK OF GEORGIA, N.A.,
As Agent
By:__________________________
Title:
[EQUIFAX INC.]
IF REQUIRED BY THE CREDIT AGREEMENT.
By:__________________________
Title:
103
EXHIBIT E
---------
NOTICE OF BORROWING
-------------------
_______________, 199____
Wachovia Bank of Georgia, N.A., as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of August 2, 1995 by and among Equifax
Inc., its Wholly Owned Subsidiaries parties thereto, the Banks from
time to time parties thereto, and Wachovia Bank of Georgia, N.A., as
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] in the aggregate principal amount of $_______________ to be made on
______________, _____, and for interest to accrue thereon at the rate
established by the Credit Agreement for [Euro- Dollar Loans] [Base Rate Loans].
The duration of the Interest Period with respect thereto shall be [1 month] [2
months] [3 months] [6 months] [30 days].
The Aggregate Outstanding Loans on the date hereof, without giving effect
to the Borrowing requested hereby, is [less than] [equal to or greater than] 50%
of the Aggregate Commitments.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ______ day of ___________, ______.
[INSERT NAME OF BORROWER]
By:_____________________________________
Title:
104
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Credit Agreement dated as of August 2, 1995
(as modified and supplemented and in effect from time to time, the "Credit
Agreement") among Equifax Inc., its Wholly Owned Subsidiaries parties thereto,
the Banks from time to time parties thereto, Wachovia Bank of Georgia, N.A., as
Agent. Capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement, (i) __________,
the duly authorized ____________________ of Equifax Inc. hereby certifies to the
Agent and the Banks as required by Section 5.01(c) that the information
contained in the Compliance Check List attached hereto is true, accurate and
complete as of __________, ____, and (ii) ____________________, the duly
authorized ________________________________ of Equifax Inc. hereby (A) certifies
to the Agent and the Banks as required by Section 5.01(c) that to the knowledge
of such officer, no Default is in existence on and as of the date hereof and (B)
restates and reaffirms as required by Section 5.01(c) that to the knowledge of
such officer, the representations and warranties contained in Article IV of the
Credit Agreement are true on and as of the date hereof as though restated on and
as of this date.
EQUIFAX INC.
By:____________________________________
Title:
105
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
1. Restricted Investments (Section 5.15)
The Parent will not, and will not permit any of its Subsidiaries to, make
any Restricted Investments unless, after giving effect thereto, the
aggregate amount of all such Investments made, together with the aggregate
of all loans and advances permitted by clause (iv) of Section 5.16, does
not exceed the sum of (A) $130,000,000, plus (B) 25% of Consolidated Net
----
Income during each Fiscal Quarter commencing after March 31, 1995 in which
there was a net profit on a consolidated basis and less (C) 100% of
----
Consolidated Net Income during each Fiscal Quarter commencing after March
31, 1995 in which there was a net loss on a consolidated basis; provided
--------
that after giving effect to the making of any Restricted Investments
permitted by this Section, the Borrowers will be in full compliance with
all the provisions of this Agreement.
Loans or Advances (Section 5.16)
Neither the Parent nor any of its Consolidated Subsidiaries shall make
loans or advances to any Person except: (i) loans or advances to and
guaranties in favor of employees in the ordinary course of business; (ii)
deposits required by government agencies or public utilities; (iii)
intercompany loans or advances between the Parent and the Consolidated
Subsidiaries and vice versa; and (iv) loans or advances in an aggregate
amount which, together with Restricted Investments permitted by Section
5.15, do not exceed the sum of (A) $130,000,000, plus (B) 25% of
----
Consolidated Net Income during each Fiscal Quarter commencing after March
31, 1995 in which there was a net profit on a consolidated basis and less
----
(C) 100% of Consolidated Net Income during each Fiscal Quarter commencing
after March 31, 1995 in which there was a net loss on a consolidated basis;
provided that after giving effect to the making of any loans, advances or
--------
deposits permitted by this Section, the Borrowers will be in full
compliance with all the provisions of this Agreement.
(a) Restricted Investments during
current Fiscal Year $_________
(b) Loans and Advances $_________
106
COMPLIANCE CHECK LIST
Equifax Inc.
_____________________________
________________, _____
(c) sum of (a) and (b) $_________
(d) Aggregate Consolidated Net Income for
each Fiscal Quarter commencing after
March 31, 1995 in which there was a net
profit $_________
(e) 25% of (d) $_________
(f) Aggregate Consolidated Net Income for
each Fiscal Quarter commencing after
March 31, 1995 in which there was a net
loss $_________
(g) sum of (e) less (f)
plus $130,000,000 $_________
Limitation (c) not to
exceed (g)
2. Debt of Consolidated Subsidiaries (Section 5.17)
The Borrowers (other than the Parent) shall not, and the Parent shall not
permit any other Consolidated Subsidiary to, incur or permit to exist any
Debt not in existence on the Closing Date, and extensions or renewals
thereof, other than (i) the obligations to the Banks under this Agreement;
(ii) Debt of the types described in clause (vii) of the definition of Debt
which is incurred in the ordinary course of business in connection with (1)
the sale or purchase of goods, or (2) to assure performance of any
Subsidiaries' service contracts, operating leases, obligations to a utility
or a governmental entity, or worker's compensation obligations; and (iii)
Debt (including Debt secured by Liens permitted by Section 5.18) not
exceeding an aggregate amount outstanding at any time equal to 20% of
Consolidated Net Tangible Assets.
(a) Other Debt (described in
clause (iii) above) $_________
(b) Consolidated Net Tangible
107
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
Assets - Schedule 1 $_________
(c) 20% of (b) $_________
Limitation (a) not to
exceed (c)
3. Negative Pledge (Section 5.18)
The Borrowers shall not, and the Parent shall not permit any Consolidated
Subsidiary to, create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except (i) purchase money security
interests in goods purchased in the ordinary course of business and for
which the purchase price therefor is paid within 120 days of such purchase,
and (ii) Liens securing Debt (other than indebtedness represented by the
Notes) in an aggregate principal amount at any time outstanding which does
not exceed 20% of Consolidated Net Tangible Assets.
(a) Aggregate amount of Debt secured
by Liens $_________
(b) Consolidated Net Tangible Assets
Schedule 1 $_________
(c) 20% of (b) $_________
Limitation (a) not to
exceed (c)
4. Fixed Charge Coverage Ratio (Section 5.19)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending March 31, 1995, the ratio of Income Available for Fixed Charges to
Consolidated Fixed Charges for the Fiscal Quarter just ended and the
immediately preceding 3 Fiscal Quarters shall not have been less than 2.5
to 1.0; provided, however, that if the CSC Put is funded, such ratio shall
--------
be greater than 2.0 to 1.0 at the end of the Fiscal Quarter in
108
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
which the CSC Put is funded and at the end of each of the immediately
succeeding 3 Fiscal Quarters.
(a) Consolidated Net Income - Schedule 2 $_________
(b) interest expense - Schedule 2 $_________
(c) operating leases and rentals - Schedule 2 $_________
(d) taxes - Schedule 2 $_________
(e) sum of (a) plus (b)
plus (c) plus (d) $_________
(f) sum of (b) plus (c) $_________
Ratio of (e) to (f) _________
Requirement more than [2.5 to 1.0]
[2.0 to 1.0]
5. Cash Flow Coverage Ratio (Section 5.20)
At the end of each Fiscal Quarter, the ratio of Net Funded Debt to Cash
Flow for the Fiscal Quarter just ended shall be less than 4.0 to 1.0;
provided, however, that if the CSC Put is funded, such ratio shall be less
--------
than 4.5 to 1.0 at the end of the Fiscal Quarter in which the CSC Put is
funded and at the end of the immediately succeeding 3 Fiscal Quarters.
(a) All Debt $_________
(b) cash and cash equivalents $_________
(c) (a) minus (b) $_________
(d) Consolidated Net Income
Schedule 3 (if CSC Put funded) $_________
(e) depreciation and amortization
109
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
Schedule 3 (if CSC Put funded) $_________
(f) other non-cash charges
Schedule 3 (if CSC Put funded) $_________
(g) sum of (d) plus (e)
plus (f) $_________
Ratio of (c) to (g) __________
Requirement less than [4.0 to 1.0]
less than [4.5 to 1.0]
110
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
Schedule 1
----------
Consolidated Net Tangible Assets
--------------------------------
(a) Consolidated Total Assets $_________
(b) all intangible assets
under GAAP (other than
"Purchase Date Files") $_________
(c) Capital Stock shown as assets $_________
(d) deferred expenses $_________
(e) sum of (a) less (b)
less (c) less (d) $_________
111
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
Schedule - 2
------------
Fixed Charge Coverage
---------------------
Consolidated Net Income for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Interest Expense for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Operating Leases and Rentals for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Taxes for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
112
COMPLIANCE CHECK LIST
Equifax Inc.
___________________________
_________________, ____
Schedule 3
----------
Cash Flow Coverage
------------------
Consolidated Net Income for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Depreciation and Amortization for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Other Non-cash Charges for:
_____ quarter 199__ $_________
_____ quarter 199__ $_________
Total $_________
Total $_________
113
EXHIBIT G
---------
CLOSING CERTIFICATE
-------------------
Reference is made to the Credit Agreement (the "Credit Agreement") dated as
of August 2, 1995, among Equifax Inc., its Wholly Owned Subsidiaries parties
thereto, the Banks listed therein, and Wachovia Bank of Georgia, N.A., as Agent.
Capitalized terms used herein have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement, ______________________
______, the duly authorized ____________________ of Equifax Inc. hereby
certifies to the Agent and the Banks as required by Section 3.01(e) that (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
Certified as of this 2nd day of August, 1995.
EQUIFAX, INC.
By:________________________________
Printed Name:___________________
Title:__________________________
114
EXHIBIT H
---------
MONEY MARKET QUOTE REQUEST
--------------------------
Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Money Market Quote Request
--------------------------
This Money Market Quote Request is given in accordance with Section 2.03 of
the Credit Agreement (as amended or modified from time to time, the "Credit
Agreement") dated as of August 2, 1995, among EQUIFAX INC, its Wholly Owned
Subsidiaries parties thereto, the Banks from time to time parties thereto, and
WACHOVIA BANK OF GEORGIA, N.A., as Agent. Terms defined in the Credit Agreement
are used herein as defined therein.
The Parent, on behalf of the Borrower listed below, hereby requests that
the Agent obtain quotes for a Money Market Borrowing based upon the following:
1. The Borrower for the requested Money Market Borrowing is
_______________________, a __________________ corporation, and the
proposed date of the Money Market Borrowing shall be ______________,
____ (the "Money Market Borrowing Date")./1/*
2. The Money Market Borrowing shall be [a Dollar Money Market Borrowing]
[a Foreign Currency Money Market Borrowing to be made in the following
Foreign Currency: ______________].
3. The aggregate amount of the [Dollar Money Market Borrowing] [Foreign
Currency Money Market Borrowing] shall be [[__]______________________,
being the Dollar Equivalent of] $________________./2/
4. The Stated Maturity Date(s) applicable to the Money Market Borrowing
shall be ______ days./3/
__________________________
* All numbered footnotes appear on the last page of this Exhibit H.
---------
115
Very truly yours,
EQUIFAX INC., on behalf of the
above named Borrower.
By:_________________________________
Title:
__________________________
/1/ The date must be a Euro-Dollar Business Day, with respect to a Dollar Money
Market Borrowing, or a Foreign Currency Business Day, with respect to a
Foreign Currency Money Market Borrowing.
/2/ The amount of the Money Market Borrowing is subject to Section 2.03(a) and
(b).
/3/ The Stated Maturity Dates are subject to Section 2.03(b)(ii). The Borrower
may request that up to 2 different Stated Maturity Dates be applicable to
any Money Market Borrowing, provided that (i) each such Stated Maturity
--------
Date shall be deemed to be a separate Money Market Quote Request and (ii)
the Borrower shall specify the amounts of such Money Market Borrowing to be
subject to each such different Stated Maturity Date.
116
EXHIBIT I
---------
MONEY MARKET QUOTE
------------------
Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Money Market Quote to [name of requesting Borrower]
---------------------------------------------------
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of August 2, 1995, among EQUIFAX INC. and its
Wholly Owned Subsidiaries parties thereto (the "Borrowers"), the Banks from time
to time parties thereto, and WACHOVIA BANK OF GEORGIA, N.A., as Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Money Market Quote Request of Equifax Inc. on
behalf of [name of requesting Borrower] dated ____________, ____, we hereby make
the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Money Market Borrowing:/1/*
4. We hereby offer to make Money Market Loan(s) in the following maximum
principal amounts for the following Interest Periods and at the following rates:
Maximum Stated
Principal Maturity
Amount /2/ Date /3/ Rate Per Annum /4/
-------- -------- ---- --- -----
5. Applicable withholding taxes, if any:
6. Total "all-in" rate (excluding the Adjusted IBOR Rate if a Foreign
Currency Money Market Borrowing):
__________________________
* All numbered footnotes appear on the last page of this Exhibit I.
---------
117
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the last sentence
of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By: ______________________________
Authorized Officer
______________________________
______________________________
/1/ As specified in the related Money Market Quote Request.
/2/ The principal amount bid for each Stated Maturity Date may not exceed the
principal amount requested. Money Market Quotes must be made for at least
(x) with respect to a Dollar Money Market Borrowing, $5,000,000 or a larger
multiple of $1.000,000 and (y) with respect to a Foreign Currency Money
Market Borrowing, the Dollar Equivalent of $1,000,000 or a larger multiple
of the Dollar Equivalent of $500,000.
/3/ The Stated Maturity Dates are subject to Section 2.03(b)(iii).
/4/ Subject to Section 2.03(c)(ii)(C).
118
EXHIBIT J
---------
FORM OF PARENT GUARANTY
-----------------------
THIS GUARANTY (this "Guaranty") is made as of the 2nd day of August,
1995, by EQUIFAX INC., a Georgia corporation (the "Guarantor") in favor of the
Agent, for the ratable benefit of the Banks, under the Credit Agreement referred
to below;
W I T N E S S E T H
WHEREAS, pursuant to a Credit Agreement dated as of even date herewith
(as amended or modified from time to time, the "Credit Agreement", the
Guarantor, as a Borrower, its Wholly Owned Subsidiaries parties thereto, as
Borrowers thereunder from time to time, (all such Borrowers, other than the
Guarantor, being collectively or individually, as the context shall require,
referred to as the "Principal" or the "Principals"), the Banks parties thereto
from time to time, and WACHOVIA BANK OF GEORGIA, N.A., as Agent (the "Agent"),
the Banks have provided, subject to the terms and conditions thereof, for
extensions of credit to be made by the Banks to the Principals and the Guarantor
for the benefit of the Principals and of the Guarantor;
WHEREAS, it is a condition precedent to the Agent and the Banks
executing the Credit Agreement that the Guarantor execute and deliver this
Guaranty whereby the Guarantor shall guarantee the payment when due of all
principal, interest and other amounts that shall be at any time payable by the
Principals under the Credit Agreement, the Notes and the other Loan Documents;
and
WHEREAS, in consideration of the financial and other support that the
Principals have provided, and such financial and other support as the Principals
may in the future provide, to Guarantor, and in order to induce the Banks and
the Agent to enter into the Credit Agreement, the Guarantor is willing to
guarantee the obligations of the Principals under the Credit Agreement, the
Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
119
SECTION 1. Definitions. Terms defined in the Credit Agreement and
-----------
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantor
------------------------------
incorporates herein by reference as fully as if set forth herein all of its
representations and warranties contained in Article V of the Credit Agreement
(which representations and warranties shall be deemed to have been renewed by
the Guarantor upon each Borrowing under the Credit Agreement).
SECTION 3. The Guaranty. The Guarantor hereby unconditionally
------------
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Note issued
by the Principals pursuant to the Credit Agreement, and the full and punctual
payment of all other amounts payable by the Principals under the Credit
Agreement and the other Loan Documents, including without limitation, all fees,
costs, expenses, compensation amounts and indemnification amounts (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Principals to pay punctually any such amount,
the Guarantor agrees that it shall forthwith on demand pay the amount not so
paid at the relevant place and in the manner and relevant currency specified in
the Credit Agreement, the relevant Note or the relevant Loan Document, as the
case may be, together with interest on amounts recoverable under this Guaranty
from the time such amounts become due until payment, at the Default Rate.
SECTION 4. Guaranty Unconditional. The obligations of the Guarantor
----------------------
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Principals under the Credit
Agreement, any Note, or any other Loan Document, by operation of law or
otherwise or any obligation of any other guarantor of any of the
Obligations;
(ii) any modification or amendment of or supplement to the
Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Principals under the Credit
Agreement, any Note, any Loan Document, or any obligations of any other
guarantor of any of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure or
ownership of the Principals or any other guarantor of any of the Guaranteed
Obligations, or any
120
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Principals, or any other guarantor of the Guaranteed
Obligations, or its assets or any resulting release or discharge of any
obligation of the Principals, or any other guarantor of any of the
Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantor may have at any time against the Principals, any other guarantor
of any of the Guaranteed Obligations, the Agent, any Bank or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Principals, or any other guarantor of any of the Guaranteed
Obligations, for any reason related to the Credit Agreement, any other Loan
Document, or any other Guaranty, or the lack of legal existence of any
Principal, or any provision of applicable law or regulation purporting to
prohibit or make illegal the payment by the Principals, or any other
guarantor of the Guaranteed Obligations, of the principal of or interest on
any Note or any other amount payable by the Principals under the Credit
Agreement, the Notes, or any other Loan Document, or the performance of any
other obligation or undertaking of any of the Principals under the Credit
Agreement, any other Loan Document, or any other Guaranty or otherwise
making any of the Guaranteed Obligations irrecoverable from any of the
Principals for any reason;
(vii) any law, regulation, order, decree or directive (whether
or not having the force of law) or any interpretation thereof, now or
hereafter in effect in any jurisdiction, that purports to modify any of the
terms of or rights of any Bank with respect to any Guaranteed Obligation or
under the Credit Agreement or any other Loan Document or this Guaranty,
including without limitation any law, regulation, order, decree or
directive or interpretation thereof that purports to require or permit the
satisfaction of any Guaranteed Obligation other than strictly in accordance
with the terms of the Credit Agreement or any other Loan Document (such as
by the tender of a currency other than the relevant Foreign Currency) or
that restricts the procurement of the Foreign Currency by any Borrower or
the Guarantor, or any agreement, whether or not signed by or on behalf of
any Bank, in connection with the restructuring or rescheduling of public or
private obligations in any Borrower's country, whether or not such
agreement is stated to cause or permit the
121
discharge of the Guaranteed Obligations prior to the final payment in full
of the Guaranteed Obligations in the relevant Foreign Currency in strict
accordance with the Credit Agreement or other Loan Documents; or
(viii) any other act or omission to act or delay of any kind by
the Principals, any other guarantor of the Guaranteed Obligations, the
Agent, any Bank or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph, constitute a legal
or equitable discharge of the Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full; Reinstatement In
-----------------------------------------------------
Certain Circumstances. The Guarantor's obligations hereunder shall remain in
- ---------------------
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Principals under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Principals or otherwise, the
Guarantor's obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 6. Waiver of Notice by the Guarantor. The Guarantor
---------------------------------
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Principals, any other guarantor of the Guaranteed Obligations, or any other
Person.
SECTION 7. Stay of Acceleration. If acceleration of the time for
--------------------
payment of any amount payable by the Principals under the Credit Agreement, any
Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Principals, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other Loan
Document shall nonetheless be payable by the Guarantor hereunder forthwith on
demand by the Agent made at the request of the Required Banks.
SECTION 8. Notices. All notices, requests and other communications
-------
to any party hereunder shall be given or made by telecopier or other writing and
telecopied or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Agent in
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accordance with the provisions of Section 10.01 of the Credit Agreement. Except
as otherwise provided in this Guaranty, all such communications shall be deemed
to have been duly given when transmitted by telecopier, or personally delivered
or, in the case of a mailed notice, 72 hours after such communication is
deposited in the mails with first class postage prepaid, in each case given or
addressed as aforesaid.
SECTION 9. No Waivers. No failure or delay by either Agent or any
----------
Banks in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes, and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 10. Successors and Assigns. This Guaranty is for the benefit
----------------------
of the Agent and the Banks and their respective successors and assigns and in
the event of an assignment of any amounts payable under the Credit Agreement,
the Notes, or the other Loan Documents, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantor without the
prior written consent of the Agent and the Required Banks, and shall be binding
upon the Guarantor and its successors and permitted assigns.
SECTION 11. Changes in Writing. Neither this Guaranty nor any
------------------
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantor and the Agent with the consent of the
Required Banks.
SECTION 12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
---------------------------------------------------------
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
- -----
LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE AGENT HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE STATE OF GEORGIA, THE COURTS THEREOF AND
THE UNITED STATES DISTRICT COURTS SITTING THEREIN, AND FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE GUARANTOR AND THE AGENT HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
123
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 13. Taxes, etc. All payments required to be made by the
----------
Guarantor hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political or taxing authority as required
pursuant to Sections 2.12(d) and 3.11(d) of the Credit Agreement.
SECTION 14. Failure to Pay in Foreign Currency. If the Guarantor is
----------------------------------
unable for any reason to effect payment in a relevant Foreign Currency as
required by this Guaranty or if the Guarantor shall default in the Foreign
Currency, each Bank may, through the Agent, require such payment to be made in
Dollars in the Dollar Equivalent amount of such payment. In any case in which
the Guarantor shall make such payment in Dollars, the Guarantor agrees to hold
the Banks harmless from any loss incurred by the Banks arising from any change
in the value of Dollars in relation to such Foreign Currency between the date
such payment became due and the date of payment thereof.
SECTION 15. Judgment Currency. If for the purpose of obtaining
-----------------
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
exchange used shall be the Agent's spot rate of exchange for the purchase of the
Foreign Currency with such other currency at the close of business on the
Foreign Currency Business Day preceding the date on which judgment is given or
any order for payment is made. The obligation of the Guarantor in respect of any
amount due from it hereunder shall, notwithstanding any judgment or order for a
liquidated sum or sums in respect of amounts due hereunder or under any judgment
or order in any other currency or otherwise be discharged only to the extent
that on the Foreign Currency Business Day following receipt by the Agent of any
payment in a currency other than the relevant Foreign Currency the Agent is able
(in accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Agent is able to purchase with such other currency is less
than the amount due in the relevant Foreign Currency, notwithstanding any
judgment or order, the Guarantor shall indemnify the Banks for the shortfall.
SECTION 16. Subrogation. The Guarantor hereby agrees that it will
-----------
not exercise any rights which it may acquire by way of subrogation under this
Guaranty, by any payment made hereunder or otherwise, unless and until all of
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the Guaranteed Obligations shall have been paid in full. If any amount shall be
paid to the Guarantor on account of such subrogation rights at any time when all
of the Guaranteed Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Agent and the Banks and shall
forthwith be paid to the Agent to be credited and applied upon the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed by its authorized officer as of the date first above written.
EQUIFAX INC.
By:_____________________________________
Title:
________________________________________
________________________________________
Attention: _____________________________
Telecopier number: _____________________
Confirmation number: ___________________
125
EXHIBIT K
---------
BORROWER ACKNOWLEDGEMENT AND AGREEMENT
--------------------------------------
As of the _____ day of ________________________, the undersigned (the
"Additional Borrower"), a wholly-owned subsidiary of Equifax Inc. (the
"Parent"), hereby elects, under Section 2.14 of that certain $550,000,000 Credit
Agreement dated as of ______________, 1995, by and among the Parent, certain of
the Parent's other subsidiaries, the Banks listed therein, and Wachovia Bank of
Georgia, N.A. (the "Agent"; as amended or otherwise modified from time to time,
the "Credit Agreement") to become a "Borrower" as defined in clause [(i) or
(ii)] of the definition of "Borrower" under Section 1.01 of the Credit Agreement
and agrees as such to become hereby subject to all obligations, liabilities,
representations, warranties, covenants, terms, conditions, and other provisions
applicable to a Borrower under the Credit Agreement. The Additional Borrower
delivers this Acknowledgement and Agreement along with: (i) original
counterparts hereof to the Agent to be delivered to the Banks, (ii) an original
of each of the Notes issued by the Additional Borrower as set forth in Section
3.01(b) of the Credit Agreement, and (iii) other items required by a Borrower to
be delivered under Section 3.01 of the Credit Agreement, as the same may be
required by the Agent.
IN WITNESS WHEREOF, the Additional Borrower has caused this
Acknowledgment and Agreement to be duly executed, under seal, by its authorized
officer as of the day and year first above written.
[Additional Borrower]
By:_____________________________________
Title:
________________________________________
________________________________________
Attention: _____________________________
Telecopier number: _____________________
Confirmation number: ___________________
126
EXHIBIT L
---------
BORROWER NOTICE OF WITHDRAWAL
-----------------------------
As of the _____ day of ________________________, the undersigned (the
"Withdrawing Borrower"), a wholly-owned subsidiary of Equifax Inc. (the
"Parent"), hereby gives notice to the Agent, under Section 2.14 of that certain
$550,000,000 Credit Agreement dated as of ______________, 1995, by and among the
Parent, certain of the Parent's other subsidiaries, the Banks listed therein,
and Wachovia Bank of Georgia, N.A. (the "Agent"; as amended or otherwise
modified from time to time, the "Credit Agreement") of its intention to withdraw
as a "Borrower" as defined in clause [(i) or (ii)] of the definition of
"Borrower" under Section 1.01 of the Credit Agreement and that it has made
payment in full of all Loans outstanding to the Withdrawing Borrower in
immediately available funds (including any amounts owed in connection therewith
under Article VIII of the Credit Agreement).
IN WITNESS WHEREOF, the Withdrawing Borrower has caused this Notice of
Withdrawal to be duly executed, under seal, by its authorized officer as of the
day and year first above written.
[Withdrawing Borrower]
By:_____________________________________
Title:
________________________________________
________________________________________
________________________________________
Attention: _____________________________
Telecopier number: _____________________
Confirmation number: ___________________
127
Schedule 4.08
-------------
Compliance with ERISA
---------------------
[TO BE COMPLETED BY THE PARENT]
128
Schedule 4.08
-------------
Consolidated Subsidiaries
-------------------------
Name
- ----
Jurisdiction of Incorporation
- -----------------------------
[TO BE COMPLETED BY THE PARENT]
Subsidiaries Which Are Not Consolidated Subsidiaries
----------------------------------------------------
Name
- ----
Jurisdiction of Incorporation
- -----------------------------
[TO BE COMPLETED BY THE PARENT]
129
Schedule 4.14
-------------
Environmental Matters
[TO BE COMPLETED BY THE PARENT]
130
Schedule 4.15
-------------
Capital Stock
[TO BE COMPLETED BY THE PARENT]
131
Schedule 5.12
-------------
Hazardous Materials
[TO BE COMPLETED BY THE PARENT]
132