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EXHIBIT 10.17
CREDIT AGREEMENT
DATED AS OF JUNE 30, 1999
AMONG
THE BISYS GROUP, INC.,
AS BORROWER
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
THE FIRST NATIONAL BANK OF CHICAGO,
FIRST UNION NATIONAL BANK,
AND
FLEET BANK, NATIONAL ASSOCIATION,
AS CO-AGENTS
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
---------------------------
BNY CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.................................................................................1
Section 1.1 Defined Terms..........................................................................1
Section 1.2 Classification of Loans and Borrowings................................................20
Section 1.3 Terms Generally.......................................................................20
Section 1.4 Accounting Terms; GAAP................................................................21
ARTICLE 2. THE CREDITS................................................................................21
Section 2.1 Commitments...........................................................................21
Section 2.2 Loans and Borrowings..................................................................22
Section 2.3 Requests for Revolving Borrowings.....................................................23
Section 2.4 Competitive Bid Loans.................................................................23
Section 2.5 Swingline Loans.......................................................................26
Section 2.6 Funding of Borrowings.................................................................28
Section 2.7 Termination and Reduction of Commitments..............................................28
Section 2.8 Repayment of Loans; Evidence of Debt..................................................29
Section 2.9 Prepayment of Loans...................................................................30
Section 2.10 Letters of Credit....................................................................31
Section 2.11 Payments Generally; Pro Rata Treatment; Sharing of Setoffs...........................36
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC......................................................38
Section 3.1 Interest..............................................................................38
Section 3.2 Interest Elections....................................................................39
Section 3.3 Fees..................................................................................40
Section 3.4 Alternate Rate of Interest............................................................41
Section 3.5 Increased Costs; Illegality...........................................................42
Section 3.6 Break Funding Payments................................................................44
Section 3.7 Taxes.................................................................................45
Section 3.8 Mitigation Obligations; Replacement of Lenders........................................46
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.............................................................47
Section 4.1 Organization; Powers..................................................................47
Section 4.2 Authorization; Enforceability.........................................................47
Section 4.3 Governmental Approvals; No Conflicts..................................................48
Section 4.4 Financial Condition; No Material Adverse Change.......................................48
Section 4.5 Properties............................................................................48
Section 4.6 Litigation and Environmental Matters..................................................49
Section 4.7 Compliance with Laws and Agreements...................................................49
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Section 4.8 Investment and Holding Company Status.................................................49
Section 4.9 Taxes.................................................................................50
Section 4.10 ERISA................................................................................50
Section 4.11 Disclosure...........................................................................50
Section 4.12 Subsidiaries.........................................................................51
Section 4.13 Insurance............................................................................51
Section 4.14 Labor Matters........................................................................51
Section 4.15 Solvency.............................................................................51
Section 4.16 Federal Reserve Regulations..........................................................52
Section 4.17 Year 2000............................................................................52
ARTICLE 5. CONDITIONS.................................................................................52
Section 5.1 Effective Date........................................................................52
Section 5.2 Conditions to Extensions of Credit in Connection with
Acquisitions Permitted under Section 7.4(l) of this Credit Agreement..................55
Section 5.3 Each Credit Event.....................................................................56
ARTICLE 6. AFFIRMATIVE COVENANTS......................................................................56
Section 6.1 Financial Statements and Other Information............................................56
Section 6.2 Notices of Material Events............................................................58
Section 6.3 Existence; Conduct of Business........................................................58
Section 6.4 Payment of Obligations................................................................58
Section 6.5 Maintenance of Properties.............................................................59
Section 6.6 Books and Records; Inspection Rights..................................................59
Section 6.7 Compliance with Laws..................................................................59
Section 6.8 Use of Proceeds.......................................................................59
Section 6.9 Insurance.............................................................................59
Section 6.10 Additional Subsidiaries..............................................................60
Section 6.11 Environmental Compliance.............................................................60
Section 6.12 Subsidiary Guarantors................................................................60
Section 6.13 Year 2000 Compliance.................................................................61
ARTICLE 7. NEGATIVE COVENANTS.........................................................................61
Section 7.1 Indebtedness..........................................................................61
Section 7.2 Liens.................................................................................64
Section 7.3 Fundamental Changes...................................................................65
Section 7.4 Investments, Loans, Advances, Guarantees and Acquisitions.............................66
Section 7.5 Asset Sales...........................................................................68
Section 7.6 Sale and Lease-Back Transactions......................................................69
Section 7.7 Hedging Agreements....................................................................69
Section 7.8 Restricted Payments...................................................................70
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Section 7.9 Transactions with Affiliates..........................................................70
Section 7.10 Restrictive Agreements...............................................................71
Section 7.11 Amendment of Material Documents......................................................71
Section 7.12 Fixed Charge Coverage Ratio..........................................................71
Section 7.13 Leverage Ratio.......................................................................71
Section 7.14 Consolidated Net Worth...............................................................71
Section 7.15 Ratio of Funded Indebtedness to Capitalization.......................................72
ARTICLE 8. EVENTS OF DEFAULT..........................................................................72
ARTICLE 9. THE ADMINISTRATIVE AGENT...................................................................75
ARTICLE 10. MISCELLANEOUS.............................................................................77
Section 10.1 Notices..............................................................................77
Section 10.2 Waivers; Amendments..................................................................78
Section 10.3 Expenses; Indemnity; Damage Waiver...................................................79
Section 10.4 Successors and Assigns...............................................................80
Section 10.5 Survival.............................................................................83
Section 10.6 Counterparts; Integration; Effectiveness.............................................83
Section 10.7 Severability.........................................................................84
Section 10.8 Right of Setoff......................................................................84
Section 10.9 Governing Law; Jurisdiction; Consent to Service of Process...........................84
Section 10.10 WAIVER OF JURY TRIAL................................................................85
Section 10.11 Headings............................................................................85
Section 10.12 Interest Rate Limitation............................................................85
Section 10.13 Treatment of Certain Information....................................................86
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SCHEDULES:
Schedule 1.1 Existing Letters of Credit
Schedule 2.1 Commitments; Addresses for Notices
Schedule 4.6 Disclosed Matters
Schedule 4.12 Subsidiaries
Schedule 4.13 Insurance
Schedule 7.1 Existing Indebtedness
Schedule 7.2 Existing Liens
Schedule 7.4 Existing Investments
Schedule 7.10 Existing Restrictions
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Opinion of Borrower's Counsel
Exhibit C Form of Note
Exhibit D Form of Guarantee Agreement
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CREDIT AGREEMENT, dated as of June 30, 1999, among THE BISYS GROUP,
INC., the LENDERS party hereto, THE CHASE MANHATTAN BANK, THE FIRST NATIONAL
BANK OF CHICAGO, FIRST UNION NATIONAL BANK and FLEET BANK, NATIONAL ASSOCIATION,
as co-agents hereunder, and THE BANK OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1 Defined Terms
As used in this Credit Agreement, the following terms have the
meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition Related Contingent Payment" means a payment
constituting all or a portion of the purchase price payable in connection with
an acquisition permitted by Section 7.4(l), the maximum aggregate potential
amount of which payments cannot be determined in advance of the occurrence or
non-occurrence after the closing date of such acquisition of certain
contingencies.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means BNY, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a
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change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Margin" means, at all times during the applicable
periods set forth below: (a) with respect to ABR Borrowings, the percentage set
forth below under the heading "ABR Margin" and adjacent to such period and (b)
with respect to Eurodollar Borrowings and fees payable under Section 3.3(b), the
percentage set forth below under the heading "Eurodollar and LC Margin" and
adjacent to such period and (c) with respect to the fees payable under Section
3.3(a), the percentage set forth below under the heading "Fee Margin" and
adjacent to such period:
When the
Leverage Ratio is Eurodollar and
greater than or equal to and less than ABR Margin LC Margin Fee Margin
- -------------------------- -------------------- ------------------ ----------------- ------------------
1.00:1.00 0.00% 0.55% 0.200%
1.00:1.00 2.00:1.00 0.00% 0.650% 0.225%
2.00:1.00 3.00:1.00 0.00% 0.875% 0.250%
3.00:1.00 0.00% 1.325% 0.300%
Changes in the Applicable Margin resulting from a change in
the Leverage Ratio shall be based upon the certificate most recently delivered
under Section 6.1(c) and shall become effective on the date such certificate is
delivered to the Administrative Agent. Notwithstanding anything to the contrary
in this definition, (i) if the Borrower shall fail to deliver to the
Administrative Agent such a certificate on or prior to any date required hereby,
the Leverage Ratio shall be deemed to be 3.00:1.00 from and including such date
to the date of delivery to the Administrative Agent of such certificate, and
(ii) during the period commencing on the Effective Date and ending on the date
of delivery of the first such certificate, the Leverage Ratio shall be deemed to
be the Leverage Ratio set forth in the certificate delivered under Section
5.1(l).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in commercial
loans and is
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managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"BNY" means The Bank of New York.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means The BISYS Group, Inc., a Delaware
corporation.
"Borrowing" means (a) Revolving Loans of the same Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or a
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.3.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" of any Person means expenditures
(whether paid in cash or other consideration or accrued as a liability) for
fixed or capital assets (excluding any capitalized interest and any such asset
acquired in connection with normal replacement and maintenance programs properly
charged to current operations and excluding any replacement assets acquired with
the proceeds of insurance) made by such Person.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are
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required to be classified and accounted for as capital leases on a balance sheet
of such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing 25% or more of the aggregate ordinary voting power or
economic interests represented by the issued and outstanding equity securities
of the Borrower on a fully diluted basis, or (b) the occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Credit Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Credit Agreement or (c) compliance
by any Credit Party (or, for purposes of Section 3.5(b), by any lending office
of such Credit Party or by such Credit Party's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Credit Agreement.
"Class" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be reduced or increased from time to
time pursuant to Section 2.7 or pursuant to assignments by or to such Lender
pursuant to Section 10.4. The initial amount of each Lender's Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Commitments is $200,000,000.
"Compensation Financing" means, as to any Subsidiary which is
a principal underwriter or distributor of shares of an Investment Company and is
so designated in such Investment Company's then effective registration
statement, either
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(i) the incurrence by such Subsidiary, as such principal underwriter or
distributor, of Indebtedness, the proceeds of which are loaned by it to a broker
or dealer entitled to compensation in connection with the sale of shares of such
Investment Company, which loan is to be repaid by such broker or dealer at the
time of its receipt of Contingent Deferred Sales Commissions or 12b-1 Fees to
which such broker or dealer is entitled as a result of such sale or (ii) the
sale by such Subsidiary as such principal underwriter or distributor of
Contingent Deferred Sales Commissions or 12b-1 Fees to which such principal
underwriter or distributor is entitled in connection with the sale of shares of
such Investment Company.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.4.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.4.
"Competitive Loan" means a Loan in dollars made pursuant to
Section 2.4.
"Consolidated Adjusted EBITDA" means for any period,
Consolidated EBITDA for such period plus the sum of, without duplication, to the
extent deducted in determining Consolidated EBITDA, (i) an amount equal to
transaction-related charges related to acquisitions permitted by Section 7.4(l)
made under the "pooling method" permitted by GAAP after the Effective Date (not
in excess of 20% of the total consideration in respect of any such acquisition
and $50,000,000 in the aggregate for all such acquisitions), and (ii) an amount
equal to (x) the total fees paid to Persons in connection with the acquisition
of rights permitted by Section 7.4(k) made after the Effective Date (not in
excess of $50,000,000 in the aggregate for all such fees for all such
acquisitions), minus (y) the amount thereof which would be amortized during such
period if such fees were amortizable and assuming a five year useful life
thereof.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus the sum of, without duplication, (i) Consolidated
Interest Expense, (ii) provision for income taxes and (iii) depreciation,
amortization and all other non-cash charges for such period of the Borrower and
the Subsidiaries determined on a consolidated basis in accordance with GAAP,
each to the extent deducted in determining Consolidated Net Income for such
period and minus the sum of non-cash gains for such period to the extent
included in determining Consolidated Net Income for such period. For purposes of
this definition, "Consolidated Net Income" and "Consolidated Interest
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Expense" shall not include any amounts earned by the Borrower or any of the
Subsidiaries in connection with Compensation Financings permitted pursuant to
Section 7.1(a)(xi).
"Consolidated Fixed Charges" means, for any period, the sum
for such period of, without duplication, the following items, each for the
Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP:
(i) all scheduled payments of principal of Indebtedness, (ii) all payments in
respect of Capitalized Lease obligations, (iii) Consolidated Interest Expense,
(iv) Acquisition Related Contingent Payments (whether paid or accrued), and (iv)
regularly scheduled principal payments on subordinated Indebtedness of the
Borrower or any of the Subsidiaries permitted pursuant to Section 7.1(a)(xvi) to
the extent the same is permitted to be paid pursuant to the subordination
provisions thereof.
"Consolidated Interest Expense" means, for any period, the sum
of, without duplication, all interest (adjusted to give effect to all interest
rate swap, cap, collar or other interest rate hedging arrangements and non-cash
amortization of fees in connection therewith, all as determined on a
consolidated basis in accordance with GAAP), paid or accrued in respect of
Indebtedness of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP during such period.
"Consolidated Net Income" means, for any period, the sum of,
without duplication, net income of the Borrower and the Subsidiaries, determined
on a consolidated basis in accordance with GAAP for such period.
"Consolidated Net Worth" means, at any date of determination,
the sum of all amounts which would be included under shareholders' equity on a
consolidated balance sheet of the Borrower and the Subsidiaries determined on a
consolidated basis in accordance with GAAP as at such date.
"Consolidated Total Assets" means, at any date of
determination, the total assets of the Borrower and the Subsidiaries determined
on a consolidated basis in accordance with GAAP as at such date.
"Consolidated Total Debt" means, at any date of determination,
the aggregate funded Indebtedness (including Capital Lease Obligations) on such
date of the Borrower and the Subsidiaries on a consolidated basis in accordance
with GAAP.
"Contingent Deferred Sales Commissions" means amounts owed by
an Investment Company to the principal underwriter or distributor thereof (as
designated in such Investment Company's then effective registration statement
under the 1940 Act) as repayment for expenses incurred by such principal
underwriter or distributor pursuant to a written plan adopted by the
shareholders of such Investment Company.
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"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling" and "Controlled" have meanings correlative
thereto.
"Credit Parties" means the Administrative Agent, the Issuing
Bank and the Lenders.
"Domestic Subsidiary" means each Subsidiary that is organized
under the laws of the United States or any State thereof.
"Default" means any event or condition which constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 4.6.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 5.1 are satisfied (or waived in accordance with Section
10.2).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Loan Party directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302
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of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the Borrower or any ERISA Affiliate of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article 8.
"Excluded Taxes" means, with respect to any Credit Party or
any other recipient of any payment to be made by or on account of any obligation
of any Loan Party under any Loan Document, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Credit Party, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Loan Party is located and (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Credit
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 3.7(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from such Loan Party with respect to such withholding tax pursuant to
Section 3.7(a).
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"Exempt Subsidiary" means each Subsidiary for so long as it is
(i) a registered broker-dealer, (ii) engaged in the insurance business and
subject to net capital rules or regulations of any Governmental Authority which
would treat the Guarantee under the Guarantee Agreement as a liability for
purposes thereof if such Subsidiary was a Subsidiary Guarantor, or (iii) holding
no assets and conducting no business.
"Existing Letter of Credit" means any Letter of Credit set
forth in Schedule 1.1, but not any renewal or extension thereof.
"Federal Funds Effective Rate" means, for any day, a rate per
annum (expressed as a decimal, rounded upwards, if necessary, to the next higher
1/100 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 Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Effective Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds
Effective Rate for such day shall be the average of the quotations for such day
on such transactions received by BNY as determined by BNY and reported to the
Administrative Agent.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (i) an amount equal to Consolidated Adjusted EBITDA
for the four fiscal quarter period ending on such date or, if such date is not
the last day of a fiscal quarter, for the immediately preceding four fiscal
quarter period minus Capital Expenditures made during such period by the
Borrower and the Subsidiaries minus income taxes paid during such period to (ii)
Consolidated Fixed Charges for such period.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the applicable Loan Party is
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
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"Foreign Subsidiary" means each Subsidiary that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor as to enable the primary obligor
to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guaranteed" has a meaning correlative thereto.
"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit D, among the Subsidiary Guarantors and the
Administrative Agent.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of
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16
any kind, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding accounts payable,
obligations under equipment servicing agreements and license, royalty and
similar fees, in each case incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section
10.3(b).
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 3.2.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b) with respect
to any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan
with an Interest Period of more than three months' duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period, (c) with respect to any
Fixed Rate Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Fixed Rate Loan with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing and (d) with respect to any Swingline Loan, the day that such
Swingline Loan is required to be repaid.
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17
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day, unless, in the
case of a Eurodollar Borrowing only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made, and,
in the case of Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means BNY, in its capacity as issuer of Letters
of Credit.
"Investment Company" means an investment company registered
under the 1940 Act.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.1 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any Existing Letter of Credit and any
New Letter of Credit.
"Leverage Ratio" means, at any date of determination, the
ratio of (i) Consolidated Total Debt on such date to (ii) Consolidated Adjusted
EBITDA for the
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18
four fiscal quarter period ending on such date or, if such date is not the last
day of a fiscal quarter, for the immediately preceding four fiscal quarter
period. For purposes of this definition, "Consolidated Total Debt" shall not
include any Indebtedness incurred by the Borrower or any of the Subsidiaries in
connection with Compensation Financings to the extent permitted by Section
7.1(a)(xi).
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate of interest per annum as determined by the
Administrative Agent, equal to the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the London interbank
market as the rate at which BNY is offering dollar deposits in an amount
approximately equal to its ratable share of such Eurodollar Borrowing for dollar
deposits with a maturity comparable to such Interest Period at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means this Credit Agreement, the promissory
notes delivered pursuant to this Credit Agreement and the Guarantee Agreement.
"Loan Parties" means the Borrower and the Subsidiary
Guarantors.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Credit Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the Adjusted LIBO Rate, the marginal rate of
interest, if any, to be added to or subtracted from the Adjusted LIBO Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"Margin Stock" has the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, (b) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to any Credit Party under
any Loan Document.
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19
"Material Indebtedness" means Indebtedness (other than
Indebtedness under the Loan Documents) or obligations in respect of one or more
Hedging Agreements, of any one or more of the Borrower and the Subsidiaries in
an aggregate principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary, as applicable, would be required to pay if such
Hedging Agreement were terminated at such time.
"Maturity Date" means June 30, 2004.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"1940 Act" means the Investment Company Act of 1940, as
amended, and the Rules promulgated thereunder, as amended.
"New Letter of Credit" means any letter of credit issued
pursuant to this Credit Agreement and any successive renewals or extensions
thereof.
"Obligations" means (a) the due and punctual payment of (i)
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations, including fees, commissions, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parties to the
Credit Parties, or that are otherwise payable to any Credit Party, under the
Credit Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents and (c) unless otherwise agreed upon in writing by the applicable
Lender party thereto, all obligations of the Borrower, monetary or otherwise,
under each interest rate protection agreement entered into with a counterparty
and that was a Lender (or an Affiliate thereof) at the time such interest rate
protection agreement was entered into.
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20
"Other Taxes" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"Participant" has the meaning assigned to such term in Section
10.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 6.4;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising
in the ordinary course of business and securing obligations that are
not overdue by more than 30 days or are being contested in compliance
with Section 6.4;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do
not constitute an Event of Default under clause (k) of Article 8; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or
any Subsidiary.
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
the United States of America (or by any agency thereof to the extent
that such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within six months from
the date of acquisition thereof;
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21
(b) dollar denominated investments in certificates of
deposit, banker's acceptances and time deposits maturing within 180
days from the date of acquisition thereof issued or guaranteed by or
placed with any Lender or any other bank whose (or whose parent
company's) unsecured non-credit supported short-term commercial paper
rating is (i) at least A-1 or the equivalent thereof from Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, or
any successor thereto, or (ii) at least P-1 or the equivalent thereof
from Moody's Investors Service, Inc. or any successor thereto;
(c) investments in commercial paper maturing within
six months from the date of acquisition thereof (i) issued by any
Lender or any other bank satisfying the criteria described in clause
(b) of this definition (or by the parent company thereof), (ii) issued
by, or guaranteed by, any industrial or financial company whose
unsecured non-credit supported commercial paper rating is (A) at least
A-1 or the equivalent thereof from Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, or any successor thereto, or
(B) at least P-1 or the equivalent thereof from Moody's Investors
Service, Inc. or any successor thereto or (iii) guaranteed by any
industrial or financial company with a long term unsecured non-credit
supported senior debt rating of at least A or A-2, or the equivalent
thereof, from Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, or any successor thereto or Moody's Investors
Service, Inc. or any successor thereto;
(d) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by,
any State of the United States of America or any political subdivision
of any State or any public instrumentality thereof, in each case
maturing within six months from the date of acquisition thereof and, at
the time of acquisition thereof, having one of the two highest ratings
obtainable from Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, or any successor thereto or Moody's Investors
Service, Inc. or any successor thereto;
(e) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (a) of
this definition and entered into with any Lender or any other bank
satisfying the criteria described in clause (b) of this definition; and
(f) investments in money market funds substantially
all the assets of which are comprised of securities of the types
described in clauses (a) through (e) of this definition.
"Permitted Notes" means general, unsecured obligations of the
Borrower, with a maturity date later than the Maturity Date, with covenants no
more restrictive to
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22
the Borrower and the Subsidiaries than the covenants under this Credit
Agreement, and with events of default no more extensive than the Events of
Default.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower,
any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by BNY as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective. The
Prime Rate is not intended to be lowest rate of interest charged by BNY in
connection with extensions of credit to borrowers.
"Prior Agreement" means Credit Agreement, dated as of March 5,
1997, as amended, by and among the Borrower, the lenders party hereto and The
Bank of New York, as agent.
"Register" has the meaning assigned to such term in Section
10.4(c).
"Regulation T" means Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" means Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" means Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 66-2/3%
of the sum of the total Revolving Credit Exposures and unused Commitments at
such time provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article 8, and for all purposes after the Loans become due
and payable pursuant to Article 8 or the
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Commitments expire or terminate, the outstanding Competitive Loans of the
Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
"Responsible Officer" means as to any Person, its President,
Chief Financial Officer, Treasurer, General Counsel, Secretary, any Vice
President, Assistant Secretary, Assistant Treasurer, or any other individual
responsible for (i) the management of the Borrower or any of the Subsidiaries or
(ii) monitoring or ensuring compliance with the Loan Documents.
"Restricted Payment" means, as to any Person, any dividend or
other distribution by such Person (whether in cash, securities or other
property) with respect to any shares of any class of equity securities of such
Person, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
shares or any option, warrant or other right to acquire any such shares.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the aggregate outstanding principal amount of such
Lender's Revolving Loans, LC Exposure and its Swingline Exposure at such time.
"Revolving Loan" means a Loan referred to in Section 2.1 and
made pursuant to Section 2.3.
"Rule 12b-1" means Rule 12b-1 promulgated under the 1940 Act.
"Securitization" means the transfer or pledge of assets or
interests in assets to a trust, partnership, corporation or other entity, which
transfer or pledge is funded by such entity in whole or in part by the issuance
of instruments or securities that are paid principally from the cash flow
derived from such assets or interests in assets.
"Significant Subsidiary" means any Subsidiary which, as of the
last day of the most recently completed fiscal quarter, satisfies any one or
more of the following three tests: (i) the Borrower and the other Subsidiaries'
investments in and advances to such Subsidiary exceed 10% of Consolidated Total
Assets, (ii) the Borrower and the other Subsidiaries' proportionate share of
Consolidated Total Assets (after intercompany eliminations) consisting of the
property of such Subsidiary exceeds 10% of Consolidated Total Assets or (iii)
the Borrower and the other Subsidiaries' equity in the income (not to include
losses) from continuing operations before income taxes, extraordinary items and
the cumulative effect of a change in accounting principle of such Subsidiary
exceeds 10% of the income (to include losses) from continuing operations before
income taxes, extraordinary items and the cumulative effect of a change in
accounting principle of the
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Borrower and the Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held by the parent or one
or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantor" means any Domestic Subsidiary (other
than an Exempt Subsidiary) that executes and delivers the Guarantee Agreement,
in each case in accordance with Sections 5.1(g) and 6.10.
"Swingline Commitment" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
hereunder. The initial amount of the Swingline Lender's Swingline Commitment is
$10,000,000.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its pro rata percentage based on the
unused Commitments of the total Swingline Loans at such time.
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"Swingline Lender" means BNY in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan in dollars made pursuant to
Section 2.5.
"Swingline Rate" means, with respect to each Swingline Loan,
the rate per annum agreed to by the Borrower and the Swingline Lender in
accordance with Section 2.5(b) as the interest rate that such Swingline Loan
shall bear.
"Taxes" means any and all current or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means (a) the execution, delivery and
performance by each Loan Party of each Loan Document to which it is a party, (b)
the borrowing of the Loans and the issuance of the Letters of Credit and (c) the
use of the proceeds of the Loans and the Letters of Credit.
"12b-1 Fees" means all fees and distribution or other expenses
incurred under a plan adopted pursuant to Rule 12b-1 under the 1940 Act.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to (i) in the case of a Revolving
Loan or Borrowing, the Adjusted LIBO Rate or the Alternate Base Rate, (ii) in
the case of a Swingline Loan, the Swingline Rate or (iii) in the case of a
Competitive Loan or Borrowing, the Adjusted LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classification of Loans and Borrowings
For purposes of this Credit Agreement, Loans may be classified
and referred to by Class (e.g., a "Revolving Loan") or by Type (e.g., a
"Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan").
Borrowings may also be classified and referred to by Class (e.g., a "Revolving
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing")
Section 1.3 Terms Generally
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall
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26
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise,
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Credit Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Credit Agreement and (e) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.4 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Unless the context otherwise requires, any reference to a
fiscal period shall refer to the relevant fiscal period of the Borrower.
ARTICLE 2. THE CREDITS
Section 2.1 Commitments
Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower from time to time during
the Availability Period in an aggregate principal amount that will not result in
(i) such Lender's Revolving Credit Exposure exceeding such Lender's Commitment
or (ii) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans
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27
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
Section 2.2 Loans and Borrowings
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.4. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder, provided that the Commitments and Competitive Bids of the
Lenders are several, and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 3.4, each (i) Revolving Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans,
in each case as the Borrower may request in accordance herewith. Each Swingline
Borrowing shall be a Swingline Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $3,000,000. At the
time that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.10(e). Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline
Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000 and not less than $500,000. Borrowings of more than one Type may be
outstanding at the same time, provided that there shall not at any time be more
than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit
Agreement, the Borrower shall not be entitled to request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date.
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Section 2.3 Requests for Revolving Borrowings
To request a Revolving Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Revolving Borrowing;
(iv) in the case of a Eurodollar Revolving Borrowing,
the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.6.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request for a Revolving
Borrowing in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Revolving
Loan to be made as part of the requested Borrowing.
Section 2.4 Competitive Bid Loans
(a) Subject to the terms and conditions set forth herein, from
time to time during the Availability Period, the Borrower may request
Competitive Bids for Competitive Loans denominated in dollars and may (but shall
not have any obligation to) accept Competitive Bids and borrow Competitive
Loans; provided that the aggregate principal amount of outstanding Competitive
Loans at any time shall not exceed an
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amount equal to 50% of the total Commitments as of the date of such Borrowing.
To request Competitive Bids, the Borrower shall notify the Administrative Agent
of such request by telephone, in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, five Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit in the aggregate up to (but not
more than) four Competitive Bid Requests on the same day, but a Competitive Bid
Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request, unless any and all such previous Competitive
Bid Requests shall have been withdrawn or all Competitive Bids received in
response thereto rejected. Each such telephonic delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be a Eurodollar
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such
Borrowing, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.2.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case
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of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (which shall be a minimum of $5,000,000 and an
integral multiple of $1,000,000 and which may equal the entire principal amount
of the Competitive Borrowing requested by the Borrower) of the Competitive Loan
or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may in its sole and absolute discretion accept or reject any
Competitive Bid. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Eurodollar Competitive Borrowing, not later than 10:30
a.m., New York City time, three Business Days before the date of the proposed
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the proposed date of the Competitive
Borrowing; provided that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate if
the Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Borrower may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each Competitive Bid, and (v) except pursuant to
clause (iv) above, no Competitive Bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of $5,000,000 and
an integral multiple of $1,000,000; provided further that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive
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Bids at a particular Competitive Bid Rate pursuant to clause (iv) the amounts
shall be rounded to integral multiples of $1,000,000 in a manner determined by
the Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
Section 2.5 Swingline Loans
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower in dollars from
time to time on any Business Day during the period from the Effective Date to
the sixth Business Day preceding the Maturity Date in an aggregate principal
amount at any time outstanding that will not result in (i) the Swingline
Exposure exceeding the Swingline Commitment or (ii) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender
shall not be required to make a Swingline Loan if (A) any Lender shall be in
default of its obligations under this Credit Agreement or (B) any Credit Party
shall have notified the Swingline Lender and the Borrower in writing at least
one Business Day prior to the date of the proposed Borrowing of such Swingline
Loan that the conditions set forth in Section 5.3 have not been satisfied and
such conditions remain unsatisfied as of the requested time of the making of
such Swingline Loan, provided, further, that the Swingline Lender shall not make
such Swingline Loan if Credit Parties consisting of the Required Lenders shall
have so notified the Swingline Lender and the Borrower and the conditions with
respect to which such notice was provided remain unsatisfied as of the requested
time of the making of such Swingline Loan. Each Swingline Loan shall be due and
payable on the maturity thereof, provided that in no event shall such maturity
be later than the sixth Business Day preceding the Maturity Date.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent and the Swingline Lender by telephone (confirmed by
telecopy) no later than 2:00 p.m., New York City time, on the day of the
relevant Swingline Loan.
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Each such notice shall be irrevocable and shall specify (i) the aggregate
principal amount to be borrowed, (ii) the requested date (which shall be a
Business Day) and (iii) the requested Swingline Rate and the maturity date of
the requested Swingline Loan which shall be not later than seven Business Days
after the making of such Swingline Loan. Subject to its agreement with the
Borrower on the applicable Swingline Rate, the Swingline Lender will make the
requested amount available promptly on that same day by means of a credit to an
account designated in writing by the Borrower not less than one Business Day
prior to such Loan or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.10(e) by remittance
to the Issuing Bank.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which the Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's pro
rata percentage of the unused Commitments of such Swingline Loan or Swingline
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's pro rata percentage of the unused
Commitments of such Swingline Loan or Swingline Loans. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.6 with respect to Loans made by such Lender (and Section
2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
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participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
Section 2.6 Funding of Borrowings
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 p.m., New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders,
provided that Swingline Loans shall be made as provided in Section 2.5(a).
Subject to Section 5.3, the Administrative Agent will make such Loans available
to the Borrower by promptly crediting or otherwise transferring the amounts so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent and designated by the Borrower in the applicable Borrowing
Request or Competitive Bid Request, provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.10(e)
shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest
rate, without duplication, that would be otherwise applicable to such Borrowing.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
Section 2.7 Termination and Reduction of Commitments
(a) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments, provided that (i) the Borrower shall not terminate
or reduce the Commitments if, after giving effect to any concurrent prepayment
of the Loans in
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accordance with Section 2.9, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Bid Loans would exceed the
total Commitments, and (ii) each such reduction shall be in an amount that is an
integral multiple of $1,000,000 and not less than $3,000,000.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
hereunder shall be permanent. Each reduction of the Commitments hereunder shall
be made ratably among the Lenders in accordance with their respective
Commitments.
Section 2.8 Repayment of Loans; Evidence of Debt
(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Maturity Date, (ii) to the
Administrative Agent for the account of each Lender, the then unpaid principal
of each Competitive Loan on the last day of the Interest Period applicable
thereto, and (iii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of (x) the maturity date selected by the
Borrower for such Swingline Loan and (y) the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the debt of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall, to the extent not inconsistent with
any entries made in any
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promissory note, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Credit Agreement.
(e) Any Lender may request that the Loans made by it be
evidenced by one promissory note or that its Competitive Loans, Revolving Loans
and, in the case of the Swingline Lender, the Swingline Loans be evidenced by
separate promissory notes. In such event, the Borrower shall prepare, execute
and deliver to such Lender, a promissory note or notes payable to the order of
such Lender, each substantially in the form of Exhibit C (with appropriate
changes, if applicable, to reflect that such note evidences Revolving Loans,
Competitive Loans and/or Swingline Loans). In addition, if requested by a
Lender, its promissory note or notes may be made payable to such Lender and its
registered assigns in which case all Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 10.4) be represented by one or more promissory notes in like form
payable to the order of the payee named therein and its registered assigns.
Section 2.9 Prepayment of Loans
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, subject to the
requirements of this Section, provided that, Competitive Loans and Swingline
Loans may not be prepaid.
(b) In the event of any partial reduction or termination of
the Commitments, then (i) at or prior to the date of such reduction or
termination, the Administrative Agent shall notify the Borrower and the Lenders
of the sum of the Revolving Credit Exposures and the aggregate principal balance
of outstanding Competitive Loans after giving effect thereto and (ii) if such
sum would exceed the total Commitments after giving effect to such reduction or
termination, then the Borrower shall, on the date of such reduction or
termination, prepay Revolving Borrowings in an amount sufficient to eliminate
such excess.
(c) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid, provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.7, then such
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notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.7. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing under Sections 2.7(b) and 2.9(a) shall, when added to the amount of
each concurrent reduction of the Commitments and prepayment of Borrowings under
such Sections, be in an integral multiple of $1,000,000 and not less than
$3,000,000. Each prepayment of a Revolving Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 3.1.
(d) All prepayments shall be subject to Section 3.6, if
applicable.
Section 2.10 Letters of Credit
(a) General. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of New Letters of Credit
denominated in dollars for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time
during the period from the Effective Date to the tenth Business Day prior to the
Maturity Date. In the event of any inconsistency between the terms and
conditions of this Credit Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Credit Agreement shall control.
(b) Notice of Issuance; Amendment; Renewal; Extension; Certain
Conditions. To request the issuance of a New Letter of Credit (or the amendment,
renewal or extension of an outstanding New Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (not later than three Business Days before the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a New Letter of Credit, or identifying the New Letter of Credit
to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such New Letter of Credit is to expire (which shall comply with paragraph
(c) of this Section), the amount of such New Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such New Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a New Letter of Credit. A New Letter of Credit shall be issued, amended,
renewed or extended only if (and, upon issuance, amendment, renewal or extension
of each New Letter of Credit, the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension, (i) the LC Exposure shall not exceed $20,000,000 and
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(ii) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans shall not exceed the total
Commitments.
(c) Expiration Date. Each New Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date that is one
year after the date of the issuance of such New Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is ten Business Days prior to the Maturity
Date, provided that any New Letter of Credit may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
that is ten Business Days prior to the Maturity Date).
(d) Participations. By the issuance of a New Letter of Credit
(or an amendment to a New Letter of Credit increasing the amount thereof) or, in
the case of an Existing Letter of Credit, the execution and delivery of this
Credit Agreement, and without any further action on the part of the Issuing Bank
or the Lenders, the Issuing Bank hereby grants to each Lender having a
Commitment, and each such Lender hereby acquires from the Issuing Bank, a
participation in each Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each such Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each such Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever; provided, however,
that no Lender shall be obligated to make any payment to the Administrative
Agent for any wrongful LC Disbursement made by the Issuing Bank as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of the Issuing Bank.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 4:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received written notice (by
hand delivery or telecopy) of such LC Disbursement prior to 12:00 noon, New York
City time, on such date, or if such written notice has not been received by the
Borrower prior to such time on such date, then not later than 4:00 p.m., New
York City time, on (i) the Business Day that the Borrower receives such written
notice, if such written notice is received prior
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to 12:00 noon, New York City time, on the day of receipt or (ii) the Business
Day immediately following the day that the Borrower receives such written
notice, if such written notice is not received prior to such time on the day of
receipt, provided that (A) in addition to such written notice, (x) the officers
of the Administrative Agent primarily responsible for the administration of this
Agreement shall, promptly after they receive notice that a draft in respect of
such LC Disbursement has been presented to the Issuing Bank, use reasonable
efforts to notify the Borrower of such draft by telephone and (y) the
Administrative Agent shall, promptly after it receives notice that such LC
Disbursement has been made, use reasonable efforts to notify the Borrower of
such LC Disbursement by telephone prior to the delivery of such written notice,
provided, further, that the failure of the Borrower to receive any such
telephonic notice from the Administrative Agent or any officer thereof shall not
in any manner affect the Borrower's obligation to reimburse such LC Disbursement
in accordance with the terms of this Section, and (B) if such LC Disbursement is
not less than $500,000, the Borrower may, subject to the conditions of borrowing
set forth herein, request in accordance with Section 2.3 or 2.5 that such
payment be financed with an ABR Revolving Borrowing or a Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced by the resulting ABR
Borrowing or Swingline Loan, as applicable. If the Borrower fails to make such
payment under this paragraph when due, the Administrative Agent shall notify
each Lender of the applicable LC Disbursement, the payment then due from the
Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.6 with respect to Loans
made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or Swingline Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligations to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Credit Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Credit Agreement, or any term or
provision therein or herein, (ii) any draft or other
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document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
any Credit Party nor any of their respective Related Parties shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
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(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 3.1(d) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure with respect
to Letters of Credit as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article 8. Such deposit shall be held by the Administrative Agent as collateral
for the payment and performance of the obligations of the Borrower under this
Credit Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Such
deposit shall not bear interest, nor shall the Administrative Agent be under any
obligation whatsoever to invest the same, provided, however, that, at the
request of the Borrower, such deposit shall be invested by the Administrative
Agent in direct short-term obligations of, or short-term obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America, in each case maturing no later than the expiry date of the
Letter of Credit giving rise to the relevant LC Exposure. Interest or profits,
if any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Credit Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of
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an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
Section 2.11 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
(a) Each Loan Party shall make each payment required to be
made by it hereunder or under any other Loan Document (whether of principal of
Loans, LC Disbursements, interest or fees, or of amounts payable under Section
3.5, 3.6, 3.7 or 10.3, or otherwise) prior to 12:00 noon, New York City time, on
the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its office at One
Wall Street, New York, New York, or such other office as to which the
Administrative Agent may notify the other parties hereto, except payments to be
made to the Issuing Bank or Swingline Lender as expressly provided herein and
except that payments pursuant to Sections 3.5, 3.6, 3.7 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal of
Loans, unreimbursed LC Disbursements, interest, fees and commissions then due
hereunder, such funds shall be applied (i) first, towards payment of interest,
fees and commissions then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest, fees and commissions then
due to such parties and (ii) second, towards payment of principal of Loans and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal of Loans and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of, or
interest on, any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements or Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
and participations in LC Disbursements or Swingline Loans of
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other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of, and accrued interest on, their respective Loans and
participations in LC Disbursements or Swingline Loans, provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Credit Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Each Loan
Party consents to the foregoing and agrees, to the extent it may effectively do
so under applicable law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against such Loan Party rights of setoff
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Loan Party in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from a Loan Party prior to the date on which any payment is due to the
Administrative Agent for the account of the applicable Credit Parties hereunder
that such Loan Party will not make such payment, the Administrative Agent may
assume that such Loan Party has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to such Credit
Parties the amount due. In such event, if such Loan Party has not in fact made
such payment, then each such Credit Party severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Credit Party with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Credit Party shall fail to make any payment
required to be made by it pursuant to Section 2.5(c), 2.6(b) or 2.10(e), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Credit Party to satisfy such Credit Party's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
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ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 Interest
(a) The Loans comprising each ABR Borrowing (other than
Swingline Loans) shall bear interest at the Alternate Base Rate. Each Swingline
Loan shall bear interest at the Swingline Rate, unless a participation is
required to be made pursuant to Section 2.5(c), in which case such Loan shall
bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin, or (ii) in the case of a Eurodollar Competitive Loan, at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing, then, so long as such Event of Default is continuing
and to the extent permitted by applicable law, all principal of and interest on
each Loan and each fee and other amount (including reimbursement obligations in
respect of LC Disbursements) payable by the Borrower hereunder shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in the case
of any other amount, 2% plus the Alternate Base Rate plus the Applicable Margin.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan, provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than the prepayment
of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion, and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis
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of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent clearly demonstrable error.
Section 3.2 Interest Elections
(a) Each Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Competitive Borrowings or Swingline
Borrowings which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.3 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) of this paragraph shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
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(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period, such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing, (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Revolving Borrowing and (ii) unless repaid, each
Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.
Section 3.3 Fees
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender, a facility fee, which shall accrue at a rate per
annum equal to the Applicable Margin on the daily amount of the Commitment of
such Lender (regardless of usage) during the period from and including the date
on which this Credit Agreement shall have become effective in accordance with
Section 10.6 to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which such Lender's Commitment terminates to but excluding
the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in arrears on the last day of March,
June, September and December of each year, each date on which the Commitments
are permanently reduced and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof, provided that
all unpaid facility fees shall be payable on the date on which the Commitments
terminate. All facility fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
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(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per annum
equal to the Applicable Margin on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date on which this
Credit Agreement shall become effective in accordance with Section 10.6 to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure and (ii) to the
Issuing Bank for its own account a fronting fee, which shall accrue at the rate
or rates per annum separately agreed upon between the Borrower and the Issuing
Bank on the average daily amount of the LC Exposure attributable to Letters of
Credit (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date on which this
Credit Agreement shall become effective in accordance with Section 10.6 to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any such LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder, provided, that for
the purposes of this clause (ii) only, Existing Letters of Credit shall be
deemed to have been issued pursuant to this Credit Agreement. Accrued
participation fees and fronting fees shall be payable in arrears on the last day
of March, June, September and December of each year, commencing on the first
such date to occur after the date hereof; provided that all such fees shall be
payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within ten days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to each Credit Party, for its
own account, fees and other amounts payable in the amounts and at the times
separately agreed upon between the Borrower and such Credit Party.
(d) All fees and other amounts payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
(or to the Issuing Bank, in each case of fees payable to it) for distribution,
in the case of facility and participation fees, to the Lenders. Fees and other
amounts paid shall not be refundable under any circumstances.
Section 3.4 Alternate Rate of Interest
If prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
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(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any Lender
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lender of making or maintaining its Loan included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Revolving Borrowing
shall be ineffective and any Eurodollar Revolving Borrowing so requested to be
continued shall be converted to an ABR Borrowing on the last day of the current
Interest Period with respect thereto, (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by the Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that if the circumstances giving rise to such
notice do not affect all the Lenders, then requests for Eurodollar Competitive
Borrowings may be made to Lenders that are not affected thereby.
Section 3.5 Increased Costs; Illegality
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Credit
Party (except any such reserve requirement reflected in the Adjusted
LIBO Rate);
(ii) impose on any Credit Party or the
London interbank market any other condition affecting this Credit
Agreement, any Eurodollar Loans made by such Credit Party or any
participation therein or any Letter of Credit or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Credit Party of making or maintaining any Eurodollar Loan or Fixed Rate Loan or
to increase the cost to such Credit Party of issuing, participating in or
maintaining any Letter of Credit hereunder or to increase the cost to such
Credit Party or to reduce the amount of any sum received or receivable by such
Credit Party hereunder (whether of principal, interest or
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otherwise), then the Borrower will pay to such Credit Party such additional
amount or amounts as will compensate such Credit Party for such additional costs
incurred or reduction suffered. Failure to demand compensation pursuant to this
Section shall not constitute a waiver of such Credit Party's right to demand
such compensation.
(b) If any Credit Party determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Credit Party's capital or on the capital of such Credit
Party's holding company, if any, as a consequence of this Credit Agreement or
the Loans made, the Letters of Credit issued or participations therein held by
such Credit Party to a level below that which such Credit Party or such Credit
Party's holding company could have achieved but for such Change in Law (taking
into consideration such Credit Party's policies and the policies of such Credit
Party's holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Credit Party such additional amount or
amounts as will compensate such Credit Party or such Credit Party's holding
company for any such reduction suffered.
(c) A certificate of a Credit Party setting forth the amount
or amounts necessary to compensate such Credit Party or its holding company, as
applicable, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Credit Party the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Credit Party to demand
compensation pursuant to this Section shall not constitute a waiver of such
Credit Party's right to demand such compensation; provided that the Borrower
shall not be required to compensate a Credit Party pursuant to this Section for
any increased costs or reductions incurred more than 90 days prior to the date
that such Credit Party notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Credit Party's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to the
submission of the Competitive Bid pursuant to which such Loan was made.
(f) Notwithstanding any other provision of this Credit
Agreement, if, after the date of this Credit Agreement, any Change in Law shall
make it unlawful for any Lender to make or maintain any Eurodollar Loan or to
give effect to its obligations as
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contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans
will not thereafter (for the duration of such unlawfulness) be made by
such Lender hereunder (or be continued for additional Interest Periods
and ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing, as applicable, for an additional Interest Period
shall, as to such Lender only, be deemed a request for an ABR Loan (or
a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurodollar Loan into an ABR Loan, as
applicable), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding
Eurodollar Loans made by it be converted to ABR Loans, in which event
all such Eurodollar Loans shall be automatically converted to ABR
Loans, as of the effective date of such notice as provided in the last
sentence of this paragraph.
In the event any Lender shall exercise its rights under (i) or (ii) of this
paragraph, all payments and prepayments of principal that would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans, as applicable. For purposes of this
paragraph, a notice to the Borrower by any Lender shall be effective as to each
Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
Section 3.6 Break Funding Payments
In the event of (a) the payment or prepayment (voluntary or
otherwise) of any principal of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto or any Swingline Loan
other than on the maturity thereof (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.9(c) and is revoked in accordance therewith), (d) the failure to
borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of the Interest Period or maturity date applicable thereto as a
result of a request by any Borrower pursuant to Section 3.8(b), then, in any
such event, the Borrower shall compensate each
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Lender for the loss, cost and expense attributable to such event, provided,
however, that, notwithstanding anything to the contrary herein, no such
compensation shall be payable for any loss, cost or expense attributable to any
payment made by the Borrower to the Administrative Agent under Section 2.6(b).
In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall
be deemed to include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest that would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the
case of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate that
such Lender would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
Section 3.7 Taxes
(a) Any and all payments by or on account of any obligation of
any Loan Party hereunder and under any other Loan Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes,
provided that, if such Loan Party shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section), the
applicable Credit Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make such
deductions and (iii) such Loan Party shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify each Credit Party, within
ten days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by such Credit Party on or with respect to any payment
by or on account of any obligation of such Loan Party under the Loan Documents
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to
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the amount of such payment or liability delivered to the Borrower by a Credit
Party, or by the Administrative Agent on its own behalf or on behalf of a Credit
Party, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
relevant Loan Party is located, or any treaty to which such jurisdiction is a
party, with respect to payments under the Loan Documents shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Section 3.8 Mitigation Obligations; Replacement of Lenders
(a) If any Credit Party requests compensation under Section
3.5, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
3.7, then such Credit Party shall use reasonable efforts to designate a
different lending office for funding or booking its Loans or Letters of Credit
(or any participation therein) hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Credit Party, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.5 or 3.7, as applicable, in the
future and (ii) would not subject such Credit Party to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Credit Party. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Credit Party in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.5, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7, in
an aggregate amount in excess of $10,000, or if any Lender on three or more
separate occasions fails to fulfill its obligations to fund any Revolving Loan
or to participate in any Swingline Loan or any LC Disbursement, in each case on
the Business Day required therefor, then the Borrower may, at its sole expense
(including the fees referred to in Section 10.4(b)) and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
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delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.4), all its interests, rights and obligations under the
Loan Documents (other than any outstanding Competitive Loans held by it), to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 3.5 or payments required to be made pursuant to
Section 3.7, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Credit Parties
that:
Section 4.1 Organization; Powers
Each of the Borrower and the Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 4.2 Authorization; Enforceability
The Transactions are within the corporate, partnership or
other analogous powers of each of the Borrower and the Subsidiary Guarantors to
the extent it is a party thereto and have been duly authorized by all necessary
corporate, partnership or other analogous and, if required, equityholder action.
Each Loan Document has been duly executed and delivered by each of the Borrower
and the Subsidiary Guarantors to the extent it is a party thereto and
constitutes a legal, valid and binding obligation thereof, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally.
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Section 4.3 Governmental Approvals; No Conflicts
The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of the
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon the Borrower or any of the Subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Subsidiaries.
Section 4.4 Financial Condition; No Material Adverse Change
(a) The Borrower has heretofore furnished to the Credit
Parties (i) its Form 10-K for the fiscal year ended June 30, 1998 containing the
consolidated balance sheet and statements of income, stockholder's equity and
cash flows of the Borrower and the Subsidiaries as of and for the fiscal year
ended June 30, 1998 and June 30, 1997 reported on by Price WaterhouseCoopers
independent public accountants, and (ii) its Form 10-Q for the fiscal quarter
ended March 31, 1999 containing the consolidated balance sheet and statements of
income and cash flows of the Borrower and the Subsidiaries as of and for the
fiscal quarter and the portion of ended on March 31, 1999, certified by its
chief financial officer. The consolidated financial statements referred to in
clauses (i) and (ii) above present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
consolidated Subsidiaries as of such dates and for the indicated periods in
accordance with GAAP and are consistent with the books and records of the
Borrower (which books and records are correct and complete), subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since June 30, 1998, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole.
Section 4.5 Properties
(a) Each of the Borrower and the Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
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(b) Each of the Borrower and the Subsidiaries owns, or is
entitled to use, all franchises, licenses, trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the use
thereof by the Borrower and the Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.6 Litigation and Environmental Matters
(a) There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any of the
Subsidiaries (i) that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any Loan Document or the
Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of the Subsidiaries (i) have failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) have become subject to
any Environmental Liability, (iii) have received notice of any claim with
respect to any Environmental Liability or (iv) know of any basis for any
Environmental Liability.
(c) Since the date of this Credit Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
Section 4.7 Compliance with Laws and Agreements
Each of the Borrower and the Subsidiaries is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
Section 4.8 Investment and Holding Company Status
Neither the Borrower nor any of the Subsidiaries are (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of
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1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
Section 4.9 Taxes
Each of the Borrower and the Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary, as applicable, has set aside on its
books adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.10 ERISA
No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $1,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $1,000,000 the fair
market value of the assets of all such underfunded Plans.
Section 4.11 Disclosure
The Borrower has disclosed to the Credit Parties all
agreements, instruments and corporate or other restrictions to which it or any
of the Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower or any Subsidiary
to any Credit Party in connection with the negotiation of the Loan Documents or
delivered thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
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Section 4.12 Subsidiaries
Schedule 4.12 sets forth the name of, and the ownership
interest of the Borrower in, each Subsidiary on the Effective Date and
identifies each such Subsidiary as a Domestic Subsidiary, a Foreign Subsidiary,
Exempt Subsidiary and/or a Significant Subsidiary. As of the Effective Date, the
Subsidiaries executing the Guarantee Agreement (i) represent at least 75% of
Consolidated EBITDA and (ii) directly own at least 75% of Consolidated Total
Assets.
Section 4.13 Insurance
Schedule 4.13 sets forth a description of all insurance
maintained by or on behalf of the Borrower and the Subsidiaries as of the
Effective Date. As of the Effective Date, all premiums in respect of such
insurance that are due and payable have been paid.
Section 4.14 Labor Matters
As of the Effective Date, there are no strikes, lockouts or
slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of
the Borrower, threatened. The hours worked by and payments made to employees of
the Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, except where any such violations, individually and in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect. All material payments due from the Borrower or any Subsidiary, or for
which any claim may be made against the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Borrower or such Subsidiary.
The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Subsidiary is
bound.
Section 4.15 Solvency
Immediately following the making of each Loan, if any, and the
issuance of each Letter of Credit, if any, made or issued on the date thereof
and after giving effect to the application of the proceeds of such Loan and such
Letter of Credit, (a) the fair value of the assets of the Borrower and the
Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Borrower and the Subsidiaries, taken as a
whole, will be greater than the amount that will be required to pay the probable
liability of their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each of the Borrower and the Subsidiary Guarantors will be able to pay its debts
and liabilities, subordinated,
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contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each of the Borrower and the Subsidiary Guarantors will not
have unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be conducted
following such date.
Section 4.16 Federal Reserve Regulations
(a) Neither the Borrower nor any of the Subsidiaries are
engaged principally, or as one of their important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase, acquire or carry any Margin Stock or for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the regulations of
the Board, including Regulation T, U or X.
Section 4.17 Year 2000
Any reprogramming required to permit the proper functioning,
in and following the year 2000, of (i) the Borrower's and the Subsidiaries'
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's or the
Subsidiaries' systems interact) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by September 30, 1999, except
where the failure to complete any such reprogramming could not reasonably be
expected to result in a Material Adverse Effect. The cost to the Borrower and
the Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower and the Subsidiaries
(including reprogramming errors and the failure of others' systems or equipment)
will not result in a Default or a Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Borrower and the Subsidiaries
are and, with ordinary course upgrading and maintenance, will continue for the
term of this Credit Agreement to be, sufficient to permit the Borrower and the
Subsidiaries to conduct their business without Material Adverse Effect.
ARTICLE 5. CONDITIONS
Section 5.1 Effective Date
The obligations of the Lenders to make Loans and of the
Issuing Bank to issue New Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2):
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(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Credit
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Credit Agreement) that such party has signed a
counterpart of this Credit Agreement.
(b) The Administrative Agent shall have received a promissory
note or notes for each Lender that has requested the same, signed on behalf of
the Borrower.
(c) The Administrative Agent shall have received a favorable
written opinion (addressed to the Credit Parties and dated the Effective Date)
from Kevin J. Dell, Esq., Senior Vice President, Secretary and General Counsel
of the Borrower and counsel to the Subsidiary Guarantors on behalf of the Loan
Parties, substantially in the form of Exhibit B, and covering such other matters
relating to the Loan Parties, the Loan Documents or the Transactions as the
Required Lenders shall reasonably request. The Borrower hereby requests such
counsel to deliver such opinion.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its
counsel.
(e) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 5.3.
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(g) The Administrative Agent shall have received counterparts
of the Guarantee Agreement signed on behalf of each Domestic Subsidiary (other
than an Exempt Subsidiary) which is a Significant Subsidiary or otherwise is
designated by the Borrower as a Subsidiary Guarantor together with a certificate
of a Financial Officer containing calculations in reasonable detail
demonstrating that the Borrower will be in compliance with Section 6.12 on the
Effective Date.
(h) The performance by each Loan Party of its obligations
under each Loan Document shall not (i) violate any applicable law, statute, rule
or regulation or
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(ii) conflict with, or result in a default or event of default under, any
material agreement of any Loan Party or any other Subsidiary, and the
Administrative Agent shall have received one or more legal opinions and/or
officer's certificates to such effect, satisfactory to the Agents.
(i) The Lenders shall be reasonably satisfied (i) that there
shall be no litigation or administrative proceeding, or regulatory development,
that would reasonably be expected to have a material adverse effect on (a) the
business, assets, operations, prospects, condition (financial or otherwise) or
material agreements of the Borrower and the Subsidiaries, taken as a whole, (b)
the ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to any Credit Party under
any Loan Document and (ii) with the current status of, and the terms of any
settlement or other resolution of, any litigation or other proceedings brought
against the Borrower or any Subsidiary by or on behalf of its subscribers or by
any Governmental Authority relating to its business.
(j) After giving effect to the Transactions, none of the
Borrower or any of the Subsidiaries shall have outstanding any shares of
preferred equity securities or any Indebtedness, other than as permitted under
Section 7.1, and the Administrative Agent shall have received evidence that the
Prior Agreement has been terminated and all amounts due thereunder have been
paid.
(k) No material adverse change or material adverse condition
in the business, assets, operations, properties, condition (financial or
otherwise), liabilities (including contingent liabilities), prospects or
material agreements of the Borrower and the Subsidiaries, taken as a whole, has
occurred since June 30, 1998.
(l) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Financial Officer of the
Borrower, setting forth reasonably detailed calculations demonstrating
compliance with Sections 7.12, 7.13, 7.14 and 7.15 on a pro forma basis
immediately after giving effect to the Transactions to occur on the Effective
Date.
The Administrative Agent shall notify the Borrower and the Credit Parties of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and the Issuing Bank
to issue Letters of Credit hereunder shall not become effective unless each of
the foregoing conditions is satisfied (or waived pursuant to Section 9.2) at or
prior to 3:00 p.m., New York City time, on June 30, 1999 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
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Section 5.2 Conditions to Extensions of Credit in Connection with
Acquisitions Permitted under Section 7.4(l) of this Credit Agreement
In addition to the satisfaction on the Effective Date of the
conditions set forth in Section 5.1 and the satisfaction of the conditions set
forth in Section 5.3, the obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or
extend a Letter of Credit, in each case where the proceeds of which are to be
used directly or indirectly to make an acquisition permitted by Section 7.4(l)
is subject to the satisfaction of the following conditions precedent as of the
date of such Loan or such Letter of Credit:
(a) After giving effect to the making of such Loan or the
issuance of such Letter of Credit, the Leverage Ratio shall be less than
3.00:1.00, provided, that in computing the Leverage Ratio for purposes of this
subsection (a) only, Consolidated Adjusted EBITDA shall be determined on a pro
forma basis for the period of four consecutive quarters immediately succeeding
the date on which such acquisition is to be consummated.
(b) The Person to be acquired is engaged in substantially the
same or a related business as any Subsidiary of the Borrower, including the
software, financial services, transaction processing and outsourcing businesses,
or in the case of an acquisition of a business or assets, such business is
substantially the same as or related to, or such assets are devoted to a
business that is substantially the same as or related to, as the case may be,
the business of any Subsidiary of the Borrower.
(c) The Administrative Agent and the Lenders shall have
received historical financial statements of the Person or business to be
acquired for not less than three years to the date of such acquisition or such
lesser amount of time for which such statements exist.
(d) Financial Officer's Certificate. The Administrative Agent
shall have received a certificate (in form and substance satisfactory to the
Administrative Agent) of a Financial Officer to the effect that (and including
calculations in reasonable detail indicating that), on a pro forma basis after
giving effect to such acquisition, (i) all of the representations and warranties
in the Loan Documents will be true and correct, (ii) no Default shall have
occurred and be continuing, and (iii) certifying compliance with subsections (a)
and (b) of this Section 5.2 (including, with respect to subsection (a),
calculations in reasonable detail).
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Section 5.3 Each Credit Event
The obligation of each Lender to make a Loan on the occasion
of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend a
Letter of Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Credit Agreement shall be true and correct on and as of the date
of such Borrowing or the date of such issuance, amendment, renewal or extension,
as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or such issuance, amendment, renewal or extension, as applicable, no
Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received such other
documentation and assurances as shall be reasonably required by it in connection
therewith.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE 6. AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees and other amounts payable under the
Loan Documents shall have been paid in full and all Letters of Credit have
expired and all LC Disbursements have been reimbursed, the Borrower covenants
and agrees with the Lenders that:
Section 6.1 Financial Statements and Other Information
The Borrower will furnish to the Administrative Agent (with a
copy thereof for each Lender, which shall be promptly delivered by the
Administrative Agent to such Lender):
(a) within 90 days after the end of each fiscal year, (i) its
Form 10-K containing its audited consolidated balance sheet and related
statements of income, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by Price WaterhouseCoopers or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
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consolidated financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, (i) its Form 10-Q containing its
consolidated balance sheet and related statements of income, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, and (ii)
unaudited financial information for each of the Borrower's business lines, all
certified by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
the consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.12, 7.12, 7.13, 7.14 and 7.15, (iii)
setting forth the name of each Domestic Subsidiary which is a Significant
Subsidiary and certifying that such Subsidiary is a Subsidiary Guarantor or an
Exempt Subsidiary, and (iv) stating whether any material change in GAAP or in
the application thereof in any material respect has occurred since the date of
the audited financial statements referred to in Section 4.4 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may reasonably request.
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Section 6.2 Notices of Material Events
The Borrower will furnish to the Administrative Agent prompt
written notice of the following (with a copy thereof for each Lender, which
shall be promptly delivered by the Administrative Agent to such Lender):
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely determined,
could in the good faith opinion of the Borrower reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and the Subsidiaries in an aggregate amount
exceeding $1,000,000;
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect; and
(e) Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
Section 6.3 Existence; Conduct of Business
The Borrower will, and will cause each of the Subsidiaries to,
do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business, provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
Section 6.4 Payment of Obligations
The Borrower will, and will cause each of the Subsidiaries to,
pay its obligations, including Tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
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Section 6.5 Maintenance of Properties
The Borrower will, and will cause each of the Subsidiaries to,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
Section 6.6 Books and Records; Inspection Rights
The Borrower will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times and as often as reasonably requested.
Section 6.7 Compliance with Laws
The Borrower will, and will cause each of the Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 6.8 Use of Proceeds
(a) The proceeds of the Loans will be used only (i) to
refinance certain existing Indebtedness (ii) for working capital of the Borrower
and the Subsidiaries, (iii) to reimburse the Issuing Bank in respect of LC
Disbursements and (iv) to finance acquisitions permitted by Section 7.4(l).
Letters of Credit shall be issued only in support of the obligation of the
Borrower or a Subsidiary in favor of a beneficiary who has requested the
issuance of a letter of credit (x) as a condition to a transaction entered into
in the ordinary course of business, or (y) as support for Indebtedness permitted
by Section 7.1(a) incurred by the Borrower in connection with an acquisition
permitted by Section 7.4(l).
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase, acquire or carry any Margin Stock or
for any purpose that entails a violation of any of the regulations of the Board,
including Regulations T, U and X.
Section 6.9 Insurance
The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, adequate
insurance for its
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insurable properties, all to such extent and against such risks, including fire,
casualty, business interruption and other risks insured against by extended
coverage, as is customary with companies in the same or similar businesses
operating in the same or similar locations.
Section 6.10 Additional Subsidiaries
If any Domestic Subsidiary (other than an Exempt Subsidiary)
is formed or acquired after the Effective Date and such Subsidiary is a
Significant Subsidiary or if any Domestic Subsidiary (other than an Exempt
Subsidiary) becomes a Significant Subsidiary, the Borrower will notify the
Administrative Agent in writing thereof within ten Business Days after the date
on which such Domestic Subsidiary is formed or acquired, becomes a Significant
Subsidiary or ceases to be an Exempt Subsidiary, as applicable, and the Borrower
will cause such Domestic Subsidiary to execute and deliver the Guarantee
Agreement (or otherwise become a party thereto in the manner provided therein)
within ten Business Days after the date on which such Subsidiary is formed or
acquired, becomes a Significant Subsidiary or ceases to be an Exempt Subsidiary,
as applicable, together with such certificates and legal opinions as the
Administrative Agent shall require.
Section 6.11 Environmental Compliance
The Borrower shall, and shall cause each of the Subsidiaries
to, use and operate all of its facilities and property in compliance with all
Environmental Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect
and remain in compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except where noncompliance
with any of the foregoing could not reasonably be expected to have a Material
Adverse Effect.
Section 6.12 Subsidiary Guarantors
The Borrower shall cause, as of the last day of any fiscal
quarter, the Obligations to be Guaranteed by Subsidiaries such that the
Obligations are Guaranteed by (i) Subsidiaries representing not less than 75% of
Consolidated EBITDA, and (ii) Subsidiaries representing not less than 75% of
Consolidated Total Assets and (iii) each Domestic Subsidiary (other than an
Exempt Subsidiary) which is a Significant Subsidiary. Notwithstanding the
provisions of this Section 6.12, the Borrower shall not be deemed to have
violated the requirements of this Section 6.12 set forth above if any violation
thereof is cured within 90 days from the last day of such fiscal quarter such
that one or more of the Subsidiaries which were not Subsidiary Guarantors as of
the last day of such fiscal quarter become Subsidiary Guarantors during such 90
day period in the manner provided by Section 6.10 and if the foregoing tests
would have been satisfied as
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of the last day of such fiscal quarter had such Subsidiaries been Subsidiary
Guarantors on such day.
Section 6.13 Year 2000 Compliance
The Borrower shall do or cause to be done all things necessary
(i) to comply with the provisions of Section 4.17 and (ii) to test all of its
and the Subsidiaries' systems and equipment supplied by others or with which its
or any Subsidiary's systems interface on or before September 30, 1999, except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
ARTICLE 7. NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees and other amounts payable under the
Loan Documents shall have been paid in full and all Letters of Credit have
expired and all LC Disbursements have been reimbursed, the Borrower covenants
and agrees with the Lenders that:
Section 7.1 Indebtedness
(a) The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) (A) Indebtedness existing on the date hereof and
set forth in Schedule 7.1, including, except as set forth in the
proviso below, refinancings thereof but not increases in the amount of
any thereof, provided that refinancings of such existing Indebtedness
shall not be permitted unless the interest rate on any such refinanced
Indebtedness is not in excess of the rate available for similar
borrowings by similar borrowers at the time of the refinancing, the
final maturity of such refinanced Indebtedness is not earlier than the
Maturity Date, and if the Indebtedness being refinanced is subordinated
to the Indebtedness under the Loan Documents, such refinanced
Indebtedness shall be so subordinated on the same terms and to the same
extent as such Indebtedness being so refinanced and (B) Indebtedness
under the Prior Agreement and all agreements, instruments and other
documents executed or delivered in connection therewith, provided that
such Indebtedness is fully repaid on or before the Effective Date;
(iii) Indebtedness of the Borrower or any Subsidiary
incurred to finance the acquisition, construction or improvement of any
fixed or
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capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof, provided that (A) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (iii) shall not exceed $5,000,000
at any time outstanding;
(iv) Indebtedness of any Person that becomes a
Subsidiary after the date hereof or which is otherwise incurred in
connection with an acquisition permitted by Section 7.4(l), provided
that (A) such Indebtedness exists at the time such Person becomes a
Subsidiary or such acquisition, as applicable, and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary, or such acquisition, as applicable, and (B) the aggregate
principal amount of Indebtedness permitted by this clause (iv) shall
not exceed $10,000,000 at any time outstanding;
(v) Indebtedness of (A) the Borrower to any Domestic
Subsidiary and of any Domestic Subsidiary to the Borrower or any other
Domestic Subsidiary and (B) to the extent permitted by Section 7.4(d),
the Borrower to any Foreign Subsidiary and of any Foreign Subsidiary to
the Borrower or any other Foreign Subsidiary or Domestic Subsidiary;
(vi) Guarantees by (A) the Borrower of Indebtedness
of any Domestic Subsidiary and by any Domestic Subsidiary of
Indebtedness of the Borrower or any other Domestic Subsidiary and (B)
any Foreign Subsidiary of Indebtedness of the Borrower and by any
Foreign Subsidiary of Indebtedness of any other Foreign Subsidiary or
Domestic Subsidiary;
(vii) Indebtedness of the Borrower incurred in
connection with an acquisition permitted by Section 7.4(l), provided
that (A) such Indebtedness is subordinated to the Indebtedness under
the Loan Documents on terms and in form and substance satisfactory to
the Administrative Agent and Required Lenders and (B) at the time of
the incurrence thereof and immediately after giving effect thereto, no
Default shall have occurred and be continuing;
(viii) Acquisition Related Contingent Payments
incurred after the Effective Date with respect to acquisitions
permitted by Section 7.4(l), which, at the time of the incurrence
thereof, are commercially reasonable under the circumstances;
(ix) Indebtedness of the Borrower under performance
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Guarantees of the obligations of the Subsidiaries, provided that (A)
such Guarantee is required as a condition of a Person retaining the
services of a Subsidiary of the Borrower, (B) the obligations which are
Guaranteed are not financial obligations (other than financial
obligations incurred in the ordinary course of business), and (C) to
the extent that any such obligations are financial obligations, (1)
such obligations are not in excess of $10,000,000 in the aggregate or
(2) the Guarantee in respect of such obligations is in a form to be
negotiated that is mutually satisfactory to the Administrative Agent
and the Borrower;
(x) Indebtedness of the Borrower in respect of
operating or capital leases of one or more of the Subsidiaries provided
that in the case of Guarantees in respect of Capital Lease Obligations,
such Capital Lease Obligations are permitted to be incurred pursuant to
clause (iii) above;
(xi) Indebtedness of a Subsidiary of the Borrower in
respect of Compensation Financings, provided that (A) at the time of
the incurrence thereof and immediately after giving effect thereto, no
Default shall have occurred and be continuing, and (B) such
Indebtedness shall be unsecured or, if secured, shall be secured only
by the 12b-1 Fees and/or Contingent Deferred Sales Commissions to which
such Subsidiary is entitled from the Investment Company or its
shareholders which is the subject of such Compensation Financings;
(xii) in addition to Indebtedness permitted under
clause (iii) above, Capital Lease Obligations in connection with sale
and leaseback transactions to the extent permitted by Section 7.6; and
(xiii) Indebtedness in respect of publicly issued
Permitted Notes in an aggregate amount not in excess of $100,000,000,
provided that at the time of the incurrence thereof and immediately
after giving effect thereto, (A) no Default shall have occurred and be
continuing and (B) the Leverage Ratio shall be less than 3.00:1.00;
(xiv) Indebtedness of the Borrower or any of the
Subsidiaries incurred in connection with a sale of receivables in
respect of 12b-1 Fees and Contingent Deferred Sales Commissions,
provided that at the time of the incurrence thereof and immediately
after giving effect thereto, no Default shall have occurred and be
continuing;
(xv) Indebtedness of the Borrower or any of the
Subsidiaries incurred in connection with a sale of receivables (other
than receivables described in clause (xiv) above) in a Securitization
transaction permitted by Section 7.5(e)(ii), provided that (A) at the
time of the incurrence
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thereof and immediately after giving effect thereto, no Default shall
have occurred and be continuing, and (B) the creditor in respect of
such Indebtedness shall have no recourse to the Borrower or such
Subsidiary but may have recourse only to such receivables (including
the right to require the Borrower or such Subsidiary to repurchase such
receivables); and
(xvi) other unsecured Indebtedness of the Borrower;
provided that (A) such Indebtedness is subordinated to the Indebtedness
under the Loan Documents on terms and in form and substance
satisfactory to the Administrative Agent and Required Lenders and (B)
at the time of the incurrence thereof and immediately after giving
effect thereto, no Default shall have occurred and be continuing.
(b) The Borrower will not, and it will not permit any
Subsidiary to, (i) issue any equity securities which are of a class or series
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable at the option of the holder thereof by contract or
otherwise, is, or upon the happening of an event or passage of time would be,
required to be redeemed prior to the Maturity Date or is redeemable at the
option of the holder thereof at any time on or prior to the Maturity Date, or is
convertible into or exchangeable at the option of the holder thereof for debt
securities at any time prior to the Maturity Date (as from time to time
extended), or (ii) be or become liable in respect of any obligation (contingent
or otherwise) to purchase, redeem, retire, acquire or make any other payment in
respect of any shares of equity securities of the Borrower or any Subsidiary or
any option, warrant or other right to acquire any such shares of equity
securities, except as permitted under Section 7.8.
Section 7.2 Liens
The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 7.2, provided
that (i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and any extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
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(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary, provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as applicable, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations that it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as applicable, and any
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, provided that (i) such security
interests secure Indebtedness permitted by clause (iii) of Section 7.1, (ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary; and
(f) Liens on receivables (i) in respect of 12b-1 Fees and
Contingent Deferred Sales Commissions to secure Indebtedness permitted by
Section 7.1(a)(xiv) and (ii) sold in a Securitization transaction permitted by
Section 7.5(e) to secure Indebtedness permitted by Section 7.1(a)(xv).
Section 7.3 Fundamental Changes
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the equity
securities of any of the Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto, no Default shall have
occurred and be continuing:
(i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving entity, any
Subsidiary may merge into any Subsidiary Guarantor in a transaction in
which such Subsidiary Guarantor is the surviving entity;
(ii) any Subsidiary may merge with any Person in a
transaction that is not permitted by clause (i) of this Section 7.3(a),
provided that such merger is permitted by Section 7.4 or 7.5, as
applicable;
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(iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to any Subsidiary
Guarantor;
(iv) the Borrower or any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets in a transaction
that is not permitted by clause (iii) of this Section 7.3(a), provided
that such sale, transfer, lease or other disposition is also permitted
by Section 7.5.
(b) The Borrower will not, and will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Subsidiaries on the
date of execution of this Credit Agreement and businesses directly related
thereto.
Section 7.4 Investments, Loans, Advances, Guarantees and Acquisitions
The Borrower will not, and will not permit any of the
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger)
any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions
(including pursuant to any merger)) any assets of any other Person constituting
a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth in
Schedule 7.4;
(c) investments made (i) by the Borrower in the equity
securities of any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned
Domestic Subsidiary in the equity securities of any other wholly-owned Domestic
Subsidiary and (iii) by any wholly-owned Foreign Subsidiary in the equity
securities of any other wholly-owned Subsidiary;
(d) loans or advances made (i) by the Borrower to any
wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary
to the Borrower or any wholly-owned Domestic Subsidiary, and (iii) by the
Borrower or any Subsidiary Guarantor to any Foreign Subsidiary; provided that
(A) such loans or advances shall be repayable on demand, (B) at the time thereof
and immediately after giving effect thereto no Default shall have occurred and
be continuing, (C) the outstanding principal amount of loans and advances
described in clause (iii) shall not exceed $20,000,000 outstanding at any time,
(D) at such time as the aggregate amount of loans and advances described in
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clause (iii) shall exceed $10,000,000, demand promissory notes evidencing all
loans and advances described in clause (iii) shall be pledged as collateral to
the Administrative Agent pursuant to documentation in form and substance
satisfactory to the Administrative Agent and (E) the Borrower shall not permit
any Subsidiary that is an Investment Company within the meaning of the 1940 Act
or a Person deemed to be an "investment company" to incur Indebtedness described
in this subsection (d) as a result of the Borrower or any other Subsidiary
making an investment in such Subsidiary with the proceeds of Loans or Letters of
Credit;
(e) acquisitions made by the Borrower from any Domestic
Subsidiary and made by any Domestic Subsidiary from the Borrower or any other
Domestic Subsidiary;
(f) investments consisting of loans to employees of the
Borrower or any of the Subsidiaries made in the ordinary course of business,
provided that at the time of such loans and immediately after giving effect
thereto no Default shall have occurred and be continuing;
(g) investments consisting of minority interests in
substantially the same or a related business to that of the Borrower or any of
the Subsidiaries in an aggregate amount not to exceed $10,000,000, provided that
at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing;
(h) investments in shares of an Investment Company for which a
Subsidiary is a principal underwriter named in such Investment Company's
registration statement under the 1940 Act, provided that (i) such shares are
acquired by such Subsidiary prior to the public offering of such Investment
Company's shares, (ii) such shares are acquired by such Subsidiary solely for
purposes of enabling such Investment Company to satisfy the net worth
requirement of Section 14(a)(1) of the 1940 Act, and (iii) the amount paid for
such shares is limited to the amount necessary to enable such Investment Company
to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act plus an
additional $10,000,000 in the aggregate for all such investments, it being
understood that nothing herein shall require the sale of any such shares;
(i) investments in shares of open-end management Investment
Companies, provided that after giving effect to any such investment, the
consideration paid for such shares, when aggregated with the consideration paid
for all other such shares then held by the Borrower and the Subsidiaries, shall
not exceed 10% of the value of Consolidated Total Assets as at such time of such
investment;
(j) in addition to investments permitted by subsection (c)
above, capital contributions by the Borrower or any Subsidiary thereof to Exempt
Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt
Subsidiary solely because of
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the applicability of clause (iii) of the definition of "Exempt Subsidiary"),
provided that (i) at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing, and (ii) the amount of
any such investment shall not exceed the amount necessary to meet the net
capital requirements applicable to such Exempt Subsidiaries;
(k) acquisitions by the Borrower or any Subsidiary of rights
under a contract or group of related contracts with a customer that had
previously been a party to a similar contract or group of contracts with another
Person with respect to which the Borrower or such Subsidiary has agreed to pay a
fee to such Person upon the successful negotiation, execution and delivery of a
replacement contract or group of contracts with such customer within a specified
period of time provided, that (i) at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing, (ii) the
Leverage Ratio on a pro forma basis for the period of four consecutive quarters
immediately succeeding the date on which such rights are acquired is less than
3.00:1.00 and (iii) the Administrative Agent and the Lenders shall have received
a certificate (in form and substance satisfactory to the Administrative Agent)
of a Financial Officer of the Borrower to the foregoing effect, setting forth
calculations in reasonable detail; and
(l) in addition to the acquisition of rights described in
subsection (g) above, other investments, loans, advances, Guarantees and
acquisitions, provided that (i) at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing and (ii) in the
case of an acquisition financed in whole or in part with the proceeds of Loans,
the conditions set forth in Section 5.2 shall have been satisfied.
Section 7.5 Asset Sales
The Borrower will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant
to a merger) of any asset, including any equity securities, nor will the
Borrower permit any of the Subsidiaries to issue any additional shares of its
equity securities, except:
(a) sales, transfers, leases and other dispositions of
inventory, used or surplus equipment and Permitted Investments, in each case in
the ordinary course of business;
(b) sales, transfers, leases and other dispositions made by
the Borrower to any Domestic Subsidiary and made by any Domestic Subsidiary to
the Borrower or any other Domestic Subsidiary;
(c) if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing, other sales,
transfers, leases and other
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dispositions of assets, provided that (i) the assets sold, transferred, leased
or otherwise disposed of shall have (x) contributed less than 15% of
Consolidated EBITDA during the immediately preceding four fiscal quarters and
(y) represent less than 15% of Consolidated Total Assets as of the most recently
completed fiscal quarter, (ii) the aggregate fair market value of all assets,
sold, transferred, leased or otherwise disposed of in reliance upon this
subsection (d) shall not exceed 15% of Consolidated Total Assets as of the most
recently completed fiscal quarter, and (iii) all sales, transfers, leases and
other dispositions permitted by this subsection (d) shall be made for fair value
and solely for cash consideration;
(d) sales in respect of sale and leaseback transactions to the
extent permitted by Section 7.6; and
(e) if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing, (i) sales of
receivables in respect of 12b-1 Fees and Contingent Deferred Sales Commissions,
provided that any Indebtedness incurred in connection with such receivables
shall be permitted by Section 7.1(a)(xiv) and (ii) sales of receivables (other
than receivables described in clause (i) above) in connection with a
Securitization thereof, provided that (x) any Indebtedness incurred in
connection with such receivables shall be permitted by Section 7.1(a)(xv) and
(y) the amount of such receivables sold in any period of 12 consecutive months
shall not exceed $100,000,000.
Section 7.6 Sale and Lease-Back Transactions
The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred if the aggregate amount of rental payments to be made in connection
with all such transactions would exceed $10,000,000 in the aggregate.
Section 7.7 Hedging Agreements
The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements
entered into in the ordinary course of business (including those entered into
specifically in connection with one or more underlying business transactions) to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.
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Section 7.8 Restricted Payments
The Borrower will not, and will not permit any of the
Subsidiaries to, declare or make, or agree to pay for or make, directly or
indirectly, any Restricted Payment, except that:
(a) the Borrower may declare and pay dividends with
respect to its equity securities payable solely in additional shares of
its equity securities;
(b) any wholly-owned Subsidiary may declare and pay
dividends with respect to its equity securities to the Borrower or any
other Subsidiary; and
(c) if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing,
(i) the Borrower may repurchase shares of its capital stock (including
repurchases in connection with the exercise of options granted to an
employee of the Borrower or any of its Subsidiaries under any stock
option or employee stock purchase plan of the Borrower); provided that
such shares are used as consideration for an acquisition permitted by
Section 7.4(l) within one hundred and twenty (120) days of such
repurchase; and (ii) the Borrower may repurchase shares of its capital
stock, not subject to or included in the limitation in subsection (i)
of this subsection (c), in an aggregate amount not in excess of
$30,000,000 in any fiscal year on a non-cumulative basis, provided
further that if the Borrower receives any amounts in cash during such
fiscal year as the result of the exercise of any option granted to an
employee of the Borrower or any of its Subsidiaries under any stock
option or employee stock purchase plan of the Borrower, the portion of
the foregoing $30,000,000 limitation utilized during such fiscal year
shall be reduced by the amounts so received.
Section 7.9 Transactions with Affiliates
The Borrower will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant
to a merger) any property or assets to, or purchase, lease or otherwise acquire
(including pursuant to a merger) any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an
arms-length basis from unrelated third parties, provided that this Section shall
not apply to any transaction that is permitted under Section 7.1, 7.3, 7.4, 7.5
or 7.8, between or among the Loan Parties and not involving any other Affiliate.
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Section 7.10 Restrictive Agreements
The Borrower will not, and will not permit any of the
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its equity securities or to make or repay loans or advances to
the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary, provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Credit Agreement,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 7.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided that such restrictions and conditions
apply only to the Subsidiary that is to be sold and such sale is permitted
hereunder, (iv) clause (a) of this Section shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Credit Agreement if such restrictions or conditions apply only to the
property or assets securing such Indebtedness and (v) clause (a) of this Section
shall not apply to customary provisions in leases restricting the assignment
thereof.
Section 7.11 Amendment of Material Documents
The Borrower will not, and will not permit any Subsidiary to,
amend or modify its certificate of incorporation, by-laws or other
organizational documents, other than immaterial amendments, modifications or
waivers that would not reasonably be expected to adversely affect the Credit
Parties.
Section 7.12 Fixed Charge Coverage Ratio
The Borrower will not permit the Fixed Charge Coverage Ratio
at any time (to be tested as of the last day of each fiscal quarter) to be less
than 2.00:1.00.
Section 7.13 Leverage Ratio
The Borrower will not permit the Leverage Ratio to be greater
than 3:50:1.00 at any time.
Section 7.14 Consolidated Net Worth
The Borrower will not permit Consolidated Net Worth as of the
last day of each fiscal quarter to be less than the sum, without duplication, of
(i) $185,000,000, plus
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(ii) 60% of Consolidated Net Income (if positive) for each fiscal quarter
commencing after June 30, 1998 to the date of such determination, plus (iii)
with respect to any issuance of its capital stock (other than treasury stock)
after the Effective Date, (A) in the case of any such issuance in connection
with an acquisition, 90% of the total increase in its stockholder's equity as a
result of such acquisition and (B) in all other cases, 90% of the total net
proceeds received by it from such issuance.
Section 7.15 Ratio of Funded Indebtedness to Capitalization
The Borrower will not at any time during the periods set forth
below permit the ratio of (i) funded Indebtedness of the Borrower and the
Subsidiaries (determined on a consolidated basis in accordance with GAAP) to
(ii) the sum of (x) Consolidated Net Worth plus (y) funded Indebtedness of the
Borrower and the Subsidiaries (determined on a consolidated basis in accordance
with GAAP):
Period Ratio
------------------------------------------------------------- ----------------
Effective Date through June 30, 2002 0.45:1.00
July 1, 2002 and thereafter 0.40:1.00
ARTICLE 8. EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligations in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
on any reimbursement obligation in respect of any LC Disbursement or any fee,
commission or any other amount (other than an amount referred to in clause (a)
of this Article) payable under any Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of any Loan Party or any other Subsidiary in or in connection with any
Loan Document or any amendment or modification hereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification hereof or waiver thereunder, shall prove to have been incorrect
when made or deemed made;
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(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.2, 6.3, 6.8, 6.10, 6.12
or in Article 7, or any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any other Loan Document;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document to which it is a
party (other than those specified in clause (a), (b) or (d) of this Article),
and such failure shall continue unremedied for a period of 30 days after a
Responsible Officer of such Loan Party shall have obtained knowledge thereof;
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity (in each case after giving effect to any applicable grace period),
provided that this clause (g) shall not apply to secured Indebtedness that
becomes due solely as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower, any Significant Subsidiary or any other
Loan Party or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower, any
Significant Subsidiary or any other Loan Party or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower, any Significant Subsidiary or any other Loan
Party shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower, any
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Significant Subsidiary or any other Loan Party or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower, any Significant Subsidiary or any other Loan
Party shall become unable, admit in writing its inability or fail generally to
pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower
or any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) any Loan Document shall cease, for any reason, to be in
full force and effect, or any Loan Party shall so assert in writing or shall
disavow any of its obligations thereunder; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event described in clause (h) or
(i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of each Loan Party accrued under the Loan Documents, shall become
due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case
of any event described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
each Loan Party accrued under the Loan Documents, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
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ARTICLE 9. THE ADMINISTRATIVE AGENT
Each Credit Party hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Credit Parties as shall be
necessary under the circumstances as provided in Section 10.2), and (c) except
as expressly set forth herein, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower, any of the Subsidiaries or any other Loan
Party that is communicated to or obtained by the Person serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Credit Parties as shall be necessary under the
circumstances as provided in Section 10.2) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Credit Party (and,
promptly after its receipt of any such notice, it shall give each Credit Party
and the Borrower notice thereof), and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth therein, (iv) the
validity, enforceability, effectiveness or genuineness thereof or any other
agreement, instrument or other document or (v) the satisfaction of any condition
set forth in Article 5 or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
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The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, provided that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Credit Parties and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the Credit
Parties, appoint a successor Administrative Agent which shall be a commercial
bank with an office in New York, New York and having a combined capital, surplus
and undivided profits of at least $100,000,000. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.3 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
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Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement. Each
Credit Party also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Credit Party and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon any Loan Document, any related agreement or any document furnished
thereunder.
Notwithstanding anything in any Loan Document to the contrary,
no co-agent hereunder shall have any duty or obligation under the Loan Documents
in such capacity.
ARTICLE 10. MISCELLANEOUS
Section 10.1 Notices
Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(a) if to the Borrower, to it at The BISYS Group, Inc., 150
Clove Road, Little Falls, New Jersey 07424, Attention of the Chief Financial
Officer thereof (Telephone No. (201) 812-8610; Telecopy No. (201) 812-1217);
with a copy to The BISYS Group, Inc., 150 Clove Road, Little Falls, New Jersey
07424, Attention of the General Counsel thereof; Telephone No. (201) 812-8607;
Telecopy No. (201) 812-1217;
(b) if to the Administrative Agent, or BNY as Issuing Bank to
it at One Wall Street, New York, New York 10286, Attention of: Pina Impeduglia
(Telephone No. (212) 635-4696; Telecopy No. (212) 635-6365 or 6366 or 6367);
with a copy to The Bank of New York, at 385 Rifle Camp Road, West Paterson, NJ
07424, Attention of: Steven L. Wexler (Telephone No. (973) 357-7756; Telecopy
No. (973) 357-7705); and
(c) if to any other Credit Party, to it at its address (or
telecopy number) set forth in Schedule 2.1, in the case of each Credit Party
originally named herein, or the Assignment and Acceptance pursuant to which such
Credit Party became a party hereto, in all other cases.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other
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communications given to any party hereto in accordance with the provisions
of this Credit Agreement shall be deemed to have been given on the date of
receipt.
Section 10.2 Waivers; Amendments
(a) No failure or delay by any Credit Party in exercising any
right or power under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Credit Parties under the Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or the issuance, amendment, extension or renewal
of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether any Credit Party may have had notice or knowledge of such
Default at the time.
(b) Neither this Credit Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders, provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or any LC Disbursement, or reduce the rate of interest thereon, or reduce any
fees or other amounts payable under the Loan Documents, or reduce the amount of
any scheduled reduction of any Commitment, without the written consent of each
Credit Party affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or any LC Disbursement, or any interest
thereon, or any fees or other amounts payable under the Loan Documents, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of reduction or expiration of any Commitment, without the written
consent of each Credit Party affected thereby, (iv) change any provision hereof
in a manner that would alter the pro rata sharing of payments required by any
Loan Document, without the written consent of each Credit Party, (v) change any
of the provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, or change the several nature of the obligations of
the Lenders hereunder, without the written consent of each Lender, (vi) release
the Parent or any Subsidiary Guarantor from its Guarantee under the Guarantee
Agreement (except as expressly provided in the Guarantee Agreement or as a
result of the termination of the existence of such Subsidiary Guarantor in a
transaction
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permitted by Section 7.3), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, or (vii) increase the Swingline
Commitment, without the written consent of each Lender, and provided, further,
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be.
Section 10.3 Expenses; Indemnity; Damage Waiver
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Credit Agreement or any
amendments, modifications or waivers of the provisions of any Loan Document
(whether or not the transactions contemplated thereby shall be consummated),
(ii) all out-of-pocket expenses incurred by the Issuing Bank in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all out-of-pocket expenses incurred by
any Credit Party, including the fees, charges and disbursements of any counsel
for any Credit Party, in connection with the enforcement or protection of its
rights in connection with the Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify each Credit Party and each
Related Party thereof (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated thereby, (ii) any Loan or Letter of
Credit or the use of the proceeds thereof including any refusal of the Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of the Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of the Subsidiaries or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, provided that such indemnity shall not, as to
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any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as applicable, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as applicable, was incurred by or asserted against
the Administrative Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, any Loan Document or any agreement, instrument or other document
contemplated thereby, the Transactions or any Loan or any Letter of Credit or
the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly but in no event later than 30 days after written demand therefor.
Section 10.4 Successors and Assigns
(a) The provisions of this Credit Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Credit Party (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void). Nothing
in this Credit Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each Credit Party) any legal or equitable right, remedy or
claim under or by reason of any Loan Document.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Credit Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it), provided
that (i) except in the case of an assignment to a Lender or an Affiliate or an
Approved Fund of a Lender, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or any portion of the assigning
Lender's Commitment or obligations in respect of its LC
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Exposure or Swingline Exposure, the Issuing Bank and/or the Swingline Lender, as
the case may be) must give its prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or an Affiliate or an Approved Fund of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 unless the Borrower and the Administrative Agent otherwise
consent, (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with, unless
otherwise agreed by the Administrative Agent, a processing and recordation fee
of $3,500, and (iv) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire, and provided, further,
that any consent of the Borrower otherwise required under this paragraph shall
not be required if a Default has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under the Loan Documents, and the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under the Loan Documents (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's rights and
obligations under the Loan Documents, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 3.5, 3.6,
3.7 and 10.3). Any assignment or transfer by a Lender of rights or obligations
under the Loan Documents that does not comply with this paragraph shall be
treated for purposes of the Loan Documents as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in New York City a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Revolving Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive absent clearly demonstrable error,
and the Borrower and each Credit Party may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Credit Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Credit
Party, at any reasonable time and from time to time upon reasonable prior
notice.
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(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Credit Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or any
Credit Party, sell participations to one or more banks or other entities (each
such bank or other entity being called a "Participant") in all or a portion of
such Lender's rights and obligations under the Loan Documents (including all or
a portion of its Commitment and the Loans and LC Disbursements owing to it),
provided that (i) such Lender's obligations under the Loan Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Loan
Parties and the Credit Parties shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the
Loan Documents. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of any Loan Documents, provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 10.2(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.5, 3.6 and 3.7 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.8 as though it were a
Lender, provided that such Participant agrees to be subject to Section 2.11(c)
as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 3.5 or 3.7 than the Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.7 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.7(e) as though
it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under the Loan Documents to secure
obligations of such
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Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest, provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations under the Loan
Documents or substitute any such pledgee or assignee for such Lender as a party
hereto.
Section 10.5 Survival
All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Credit Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of any Loan Document and the
making of any Loans and the issuance of any Letter of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Credit Party may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any LC Disbursement or any fee or any
other amount payable under the Loan Documents is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 3.5, 3.6, 3.7 and 10.3 and Article 9
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans and the LC
Disbursements, the expiration or termination of the Letters of Credit and the
termination of the Commitments or the termination of this Credit Agreement or
any provision hereof.
Section 10.6 Counterparts; Integration; Effectiveness
This Credit Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one contract. This Credit Agreement and any separate letter agreements with
respect to fees payable to any Credit Party constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 5.1, this Credit Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of this Credit Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Credit
Agreement.
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Section 10.7 Severability
In the event any one or more of the provisions contained in
this Credit Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
Section 10.8 Right of Setoff
If an Event of Default shall have occurred and be continuing,
each of the Lenders and their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law,
to setoff and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by it to or for the credit or the account of the Borrower against any of and all
the obligations of the Borrower now or hereafter existing under this Credit
Agreement held by it, irrespective of whether or not it shall have made any
demand under this Credit Agreement and although such obligations may be
unmatured. The rights of each of the Lenders and their respective Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that it may have.
Section 10.9 Governing Law; Jurisdiction; Consent to Service
of Process
(a) This Credit Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Credit Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by applicable law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Credit Agreement shall
affect any right that the Administrative Agent or
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any other Credit Party may otherwise have to bring any action or proceeding
relating to this Credit Agreement or the other Loan Documents against the
Borrower, or any of its property, in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Credit Agreement or the
other Loan Documents in any court referred to in paragraph (b) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents
to service of process in the manner provided for notices in Section 10.1.
Nothing in this Credit Agreement will affect the right of any party to this
Credit Agreement to serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS CREDIT AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.11 Headings
Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Credit
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Credit Agreement.
Section 10.12 Interest Rate Limitation
Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges
and other amounts that are treated as interest on such Loan under applicable law
(collectively the "charges"), shall
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exceed the maximum lawful rate (the "maximum rate") that may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all of the charges payable in respect thereof,
shall be limited to the maximum rate and, to the extent lawful, the interest and
the charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated, and the
interest and the charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the maximum rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
Section 10.13 Treatment of Certain Information
Each Credit Party agrees to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature, all non-public information supplied
by the Borrower or any Subsidiary pursuant to this Credit Agreement which (a) is
clearly identified by such Person as being confidential at the time the same is
delivered to such Credit Party, or (b) constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder,
provided, however, that nothing herein shall limit the disclosure of any such
information (i) to such of their respective Related Parties as need to know such
information, (ii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, or requested by any bank regulatory
authority, (iii) on a confidential basis, to prospective lenders or their
counsel, (iv) to auditors or accountants, and any analogous counterpart thereof,
(v) to any other Credit Party, (vi) in connection with any litigation to which
any one or more of the Credit Parties is a party, (vii) to the extent such
information (A) becomes publicly available other than as a result of a breach of
this Credit Agreement, (B) becomes available to any of the Credit Parties on a
non-confidential basis from a source other than the Borrower or any Subsidiary,
or (C) was available to the Credit Parties on a non-confidential basis prior to
its disclosure to any of them by the Borrower or any Subsidiary; and (viii) to
the extent the Borrower shall have consented to such disclosure in writing.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE BISYS GROUP, INC.
By: /s/ Dennis R. Sheehan
Name: Dennis R. Sheehan
Title: Executive Vice President and
Chief Financial Officer
93
THE BISYS GROUP, INC.
CREDIT AGREEMENT
THE BANK OF NEW YORK, individually,
as Administrative Agent and
as Issuing Bank
By: /s/ Steven L. Wexler
Name: Steven L. Wexler
Title: Vice President
94
THE BISYS GROUP, INC.
CREDIT AGREEMENT
THE CHASE MANHATTAN BANK, individually
and as co-agent
By: /s/ Leonard Noll
Name: Leonard Noll
Title: Vice President
95
THE BISYS GROUP, INC.
CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as co-agent
By: /s/ Stephen E. McDonald
Name: /s/ Stephen E. McDonald
Title: First Vice President
96
THE BISYS GROUP, INC.
CREDIT AGREEMENT
FIRST UNION NATIONAL BANK,
individually and as co-agent
By: /s/ John P. Longhine
Name: John P. Longhine
Title: Senior Vice President
97
THE BISYS GROUP, INC.
CREDIT AGREEMENT
FLEET BANK, NATIONAL ASSOCIATION,
individually and as co-agent
By: /s/ Lucia D. Gibbons
Name: Lucia D. Gibbons
Title: Senior Vice President
98
THE BISYS GROUP, INC.
CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
By: /s/ J. Richard Bishop
Name: J. Richard Bishop
Title: Vice President
99
THE BISYS GROUP, INC.
CREDIT AGREEMENT
SUNTRUST BANK, ATLANTA
By: /s/ W. David Wisdom
Name: W. David Wisdom
Title: Vice President
100
THE BISYS GROUP, INC.
CREDIT AGREEMENT
WACHOVIA BANK, N.A.
By: /s/ M. Eugene Wood III
Name: M. Eugene Wood III
Title: Senior Vice President
101
THE BISYS GROUP, INC.
CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ Stephen E. Lockhart
Name: Stephen E. Lockhart
Title: Vice President