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REVOLVING CREDIT AGREEMENT
among
FIRST DATA CORPORATION,
and
The Banks, Swing Line Banks and Other Financial Institutions Parties Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
Dated as of April 1, 1997
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.......................................... 1
1.1 Defined Terms............................................. 1
1.2 Other Definitional Provisions............................. 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................... 21
2.1 Commitments............................................... 21
2.2 Revolving Credit Notes.................................... 22
2.3 Procedure for Borrowing................................... 22
2.4 Fees...................................................... 23
2.5 Termination or Reduction of Commitments................... 24
2.6 Optional Prepayments...................................... 24
2.7 Conversion and Continuation Options....................... 25
2.8 Minimum Amounts of Tranches............................... 26
2.9 Interest Rates and Payment Dates.......................... 26
2.10 Computation of Interest and Fees.......................... 27
2.11 Inability to Determine Interest Rate...................... 27
2.12 Pro Rata Treatment and Payments........................... 28
2.13 Illegality................................................ 29
2.14 Requirements of Law....................................... 30
2.15 Taxes..................................................... 31
2.16 Indemnity................................................. 33
2.17 Action of Affected Banks.................................. 34
2.18 Bid Loans................................................. 34
2.19 Swing Line Commitments.................................... 38
2.20 Increase of Commitments................................... 43
SECTION 3. REPRESENTATIONS AND WARRANTIES....................... 44
3.1 Financial Condition....................................... 44
3.2 No Change................................................. 44
3.3 Corporate Existence; Compliance with Law.................. 44
3.4 Corporate Power; Authorization; Enforceable Obligations... 45
3.5 No Legal Bar.............................................. 45
3.6 No Material Litigation.................................... 46
3.7 No Default................................................ 46
3.8 Taxes..................................................... 46
3.9 Federal Regulations....................................... 46
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3.10 ERISA..................................................... 47
3.11 Investment Company Act; Other Regulations................. 47
3.12 Purpose of Loans.......................................... 47
3.13 Disclosure................................................ 47
SECTION 4. CONDITIONS PRECEDENT................................. 48
4.1 Conditions to Effectiveness............................... 48
4.2 Conditions to Each Loan................................... 49
SECTION 5. AFFIRMATIVE COVENANTS................................ 50
5.1 Financial Statements...................................... 50
5.2 Certificates; Other Information........................... 51
5.3 Conduct of Business and Maintenance of Existence.......... 52
5.4 Inspection of Property; Books, Records and Discussions.... 52
5.5 Notices................................................... 53
SECTION 6. NEGATIVE COVENANTS................................... 54
6.1 Interest Coverage......................................... 54
6.2 Limitation on Significant Subsidiary Indebtedness......... 54
6.3 Limitation on Liens....................................... 54
6.4 Limitation on Sales and Leasebacks........................ 56
6.5 Limitations on Fundamental Changes........................ 57
6.6 Limitations on Restrictions on Dividends.................. 58
SECTION 7. EVENTS OF DEFAULT.................................... 58
SECTION 8. THE ADMINISTRATIVE AGENT............................. 62
8.1 Appointment............................................... 62
8.2 Delegation of Duties...................................... 62
8.3 Exculpatory Provisions.................................... 62
8.4 Reliance by Administrative Agent.......................... 63
8.5 Notice of Default......................................... 63
8.6 Non-Reliance on Administrative Agent and Other Banks...... 63
8.7 Indemnification........................................... 64
8.8 Administrative Agent in Its Individual Capacity........... 65
8.9 Successor Administrative Agent............................ 65
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SECTION 9. MISCELLANEOUS........................................ 66
9.1 Amendments and Waivers.................................... 66
9.2 Notices................................................... 67
9.3 No Waiver; Cumulative Remedies............................ 68
9.4 Survival of Representations and Warranties................ 68
9.5 Payment of Expenses and Taxes............................. 68
9.6 Successors and Assigns; Participations; Purchasing Banks.. 69
9.7 Adjustments; Set-off...................................... 73
9.8 Confidentiality........................................... 74
9.9 Counterparts.............................................. 75
9.10 Severability.............................................. 75
9.11 Integration............................................... 75
9.12 GOVERNING LAW............................................. 75
9.13 Submission To Jurisdiction; Waivers....................... 75
9.14 Acknowledgements.......................................... 76
9.15 WAIVERS OF JURY TRIAL..................................... 76
Schedules
Schedule 1.1 Banks and Commitments
Schedule 3.10 ERISA Disclosures
Schedule 6.4 Excluded Sale and Leaseback Transactions
Exhibits
Exhibit A Revolving Credit Note
Exhibit B Borrowing Certificate
Exhibit C Opinion of General Counsel
Exhibit D Commitment Transfer Supplement
Exhibit E Bid Note
Exhibit F Bid Quote
Exhibit G Bid Loan Confirmation
Exhibit H Bid Loan Request
Exhibit I Form of Swing Line Note
Exhibit J Form of Commitment Increase Supplement
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REVOLVING CREDIT AGREEMENT, dated as of April 1, 1997, among FIRST DATA
CORPORATION, a Delaware corporation (the "Company"), the several banks and other
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financial institutions from time to time parties to this Agreement (the
"Banks"), BANK OF MONTREAL, THE BANK OF NEW YORK, BANK OF TOKYO-MITSUBISHI,
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CITIBANK, N.A., NATIONSBANK, N.A. (SOUTH), SUMITOMO BANK LIMITED, NEW YORK
BRANCH, WACHOVIA BANK OF GEORGIA, N.A., and THE CHASE MANHATTAN BANK, each in
its capacity as a swing line bank under subsection 2.19 (in such capacity,
together with their respective successors in such capacity, individually, a
"Swing Line Bank" and, collectively, the "Swing Line Banks"), and THE CHASE
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MANHATTAN BANK, a New York banking corporation, as administrative agent for the
Banks hereunder (in such capacity, the "Administrative Agent").
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WHEREAS, the Company has requested the Banks to make, and the Banks are
willing to make, subject to the terms and conditions hereof, Loans (as hereinaf-
ter defined) to the Company;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained and other good and valuable consider-
ation, receipt of which is hereby acknowledged, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings:
"ABR": Alternate Base Rate, which shall be, for any day, a rate per annum
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(rounded upwards, if necessary, to the next 1/16 of 1%) 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%. For purposes hereof: "Prime Rate"
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shall mean the rate of interest per annum publicly announced from time to time
by Chase as its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest charged by
Chase in connection with extensions of credit to debtors); and "Federal Funds
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Effective Rate" shall mean, for any day, the weighted average of the rates on
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overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have deter-
mined (which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient quota-
tions in accordance with the terms thereof, the ABR shall be determined without
regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such change
in the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based upon
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the ABR.
"Affiliate": as to any Person, any other Person (other than a Subsidiary)
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which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control" of
a Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"Agreement": this Revolving Credit Agreement, as amended, supplemented or
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otherwise modified from time to time.
"Applicable Margin": with respect to each day for each Type of Loan, the
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rate per annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
2
Eurodollar C/D
Rating Rate Loans Rate Loans
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Rating I .1275% .1875%
Rating II .1300% .2000%
Rating III .1650% .2500%
Rating IV .2000% .3000%
Rating V .2500% .3750%
Rating VI .3125% .5000%
"Available Commitment": as to any Bank at any time, an amount equal
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to the excess, if any, of (a) the amount of such Bank's Commitment over (b) the
aggregate principal amount of all Loans made by such Bank then outstanding.
"Bid Loan": each advance made to the Company pursuant to
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subsection 2.18.
"Bid Loan Confirmation": a bid loan confirmation, substantially in
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the form of Exhibit G, to be delivered by the Company to the Administrative
Agent in accordance with subsection 2.18(b)(iv).
"Bid Loan Request": a bid loan request, substantially in the form of
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Exhibit H, to be delivered by the Company to the Administrative Agent in
accordance with subsection 2.18(b)(i) in writing, by facsimile transmission, or
by telephone immediately confirmed by facsimile transmission.
"Bid Note": as defined in subsection 2.18.
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"Bid Quote": a bid quote substantially in the form of Exhibit F, to
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be delivered by a Bank to the Administrative Agent in accordance with subsection
2.18(b) in writing, by facsimile transmission, or by telephone immediately con-
firmed by facsimile transmission.
"Borrowing Certificate": a notice of borrowing and certificate of
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the Company substantially in the form of Exhibit B.
"Borrowing Date": any Business Day specified in a notice furnished
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pursuant to subsection 2.3, 2.18, 2.19 as a date on which the Company
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requests the Banks or the Swing Line Banks, as the case may be, to make Loans
hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City are authorized or required by law to
close; provided, however, that when used to describe the date of any borrowing
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of, or any payment or interest rate determination in respect of, a Eurodollar
Loan or a LIBOR Bid Loan, the term "Business Day" shall also exclude any day on
which commercial banks are not open for dealings in Dollar deposits in the
London interbank market.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any C/D Rate Loan,
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the net annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chase to be payable on such day to the Federal Deposit Insurance
Corporation or any successor ("FDIC") for FDIC's insuring time deposits made in
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Dollars at offices of Chase in the United States.
"C/D Base Rate": with respect to each day during each Interest Period
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pertaining to a C/D Rate Loan, the rate of interest per annum determined by the
Administrative Agent to be the arithmetic average (rounded upward to the nearest
1/16th of 1%) of the respective rates notified to the Administrative Agent by
each of the Reference Banks as the average rate bid at 9:00 A.M., New York City
time, or as soon thereafter as practicable, on the first day of such Interest
Period by a total of three certificate of deposit dealers of recognized
standing selected by such Reference Bank for the purchase at face value from
such Reference Bank of its certificates of deposit in an amount comparable to
the C/D Rate Loan of such Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"C/D Rate": with respect to each day during each Interest Period
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pertaining to a C/D Rate Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
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C/D Base Rate
_____________________________ + C/D Assessment Rate
1.00 - C/D Reserve Percentage
"C/D Rate Loans": Loans the rate of interest applicable to which
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is based upon the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any C/D Rate
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Loan, that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System (or any
successor), for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding one billion
Dollars in respect of new non-personal time deposits in Dollars in New York City
having a maturity comparable to the Interest Period for such C/D Rate Loan and
in an amount of $100,000 or more.
"Change of Control": any acquisition by any Person or Group of
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Persons, either directly or indirectly, of (a) the power to elect, appoint or
cause the election or appointment of at least a majority of the members of the
Board of Directors of the Company (or any other Person to which all or
substantially all of the properties and assets of the Company have been
transferred), through beneficial ownership of the Capital Stock of the Company
(or such other Person) or through contract, agreement, arrangement or proxy, or
(b) all or substantially all of the properties and assets of the Company.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
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"Closing Date": the date on which this Agreement becomes effective
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in accordance with subsection 4.1.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Commitment": as to any Bank, the obligation of such Bank (a) to make
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Revolving Credit Loans to the Company hereunder and (b) to participate in Swing
Line Loans made to the Company hereunder, in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite
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such Bank's name on Schedule 1.1, as such amount may be reduced pursuant to
subsection 2.5 or increased pursuant to subsection 2.20.
"Commitment Percentage": as to any Bank at any time, the percentage
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of the aggregate Commitments then constituted by such Bank's Commitment.
"Commitment Period": the period from and including the Closing Date
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to but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Committed Swing Line Loan": as defined in subsection 2.19(a).
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"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with the Company within the meaning of Section
4001 of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Competitor": any Person significantly and directly engaged in the
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business of (x) providing information or processing services to third parties
particularly in the transaction card (such as credit cards, debit cards and
retail cards) processing or mutual fund business or (y) payment instruments or
consumer funds transfers.
"Consolidated Net Assets": the gross book value of the assets of the
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Company and its Subsidiaries (which under GAAP would appear on the consolidated
balance sheet of the Company and its Subsidiaries) less all reserves
(including, without limitation, depreciation, depletion and amortization)
applicable thereto and less (i) minority interests and (ii) liabilities which,
under GAAP, would be classified as current liabilities.
"Consolidated Net Income": the net income of the Company and its
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Subsidiaries (which under GAAP would appear on the consolidated income statement
of the Company and its Subsidiaries), excluding, however, (i) any equity of the
Company or a Subsidiary in the unremitted earnings of any corporation which is
not a Subsidiary, (ii) gains from the write-up in the book value of any asset
subsequent to December 31, 1996 and (iii) in the case of an acquisition of any
Person which is accounted for on a purchase basis, earnings of such Person prior
to its becoming a Subsidiary.
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"Consolidated Net Worth": the sum of (i) the par value (or value
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stated on the books of such corporation) of the capital stock of all classes of
the Company and its Subsidiaries, plus (or minus in the case of a deficit) (ii)
the amount of the consolidated surplus, whether capital or earned, of the
Company and its Subsidiaries, and plus (or minus in the case of a deficit) (iii)
retained earnings of the Company and its Subsidiaries, all as determined in
accordance with GAAP; provided, however, that Consolidated Net Worth shall
exclude the effects of currency translation adjustments and the application of
FAS 115.
"Consolidated Operating Income": the sum of (i) Consolidated Net
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Income, (ii) provisions for federal, state and local income taxes of the Company
and its Subsidiaries determined in accordance with GAAP and (iii) Interest Ex-
pense of the Company and its Subsidiaries.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 7, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States
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of America.
"Domestic Dollar Loans": the collective reference to C/D Rate
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Loans, Fixed Rate Bid Loans and ABR Loans.
"Engagement Letter": the Engagement and Commitment letter, dated
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March 3, 1997, among Chase, Chase Securities Inc. and the Company.
"Environmental Laws": any and all Federal, state, local or municipal
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laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority regulating, relating to or imposing
liability or standards of conduct concerning environmental protection matters.
"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
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"Eurocurrency Reserve Requirements": for any day as applied to a
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Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
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applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
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Period pertaining to a Eurodollar Loan, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates notified to
the Administrative Agent by each of the Reference Banks as the rate at which
such Reference Bank is offered Dollar deposits at or about 10:00 A.M., New York
City time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"Event of Default": any of the events specified in Section 7,
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provided that any requirement for the giving of notice, the lapse of time, or
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both, or any other condition, has been satisfied.
"Excluded Individuals": with respect to any Person, the officers,
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directors, employees, agents and representatives of such Person involved,
directly or indirectly, in (a) any aspect of its transaction card business, such
as credit cards, debit cards or retail cards, (b) the securities investment
decisions of such Person whether made for its own account or the accounts of
others, (c) the payment instruments and consumer funds transfer business of such
Person or (d) the transfer agent services and custodial accounts business of
such Person.
"Existing Credit Agreements": the 364 Day Credit Agreement and the
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Revolving Credit Agreement, each dated as of October 11, 1995, among the
8
Company, the several banks and other financial institutions parties thereto and
Chase (formerly known as Chemical Bank), as administrative agent thereunder.
"Facility Fee Rate": for each day during each calculation period, a
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rate per annum based on the Ratings in effect on such day, as set forth below:
Facility
Rating Fee Rate
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Rating I .0600%
Rating II .0700%
Rating III .0850%
Rating IV .1000%
Rating V .1250%
Rating VI .1875%
"FDR": First Data Resources Inc., a Delaware corporation.
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"FFB": First Financial Bank, a banking corporation duly organized and
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validly existing under the laws of the State of Georgia and an indirect wholly-
owned Subsidiary of the Company.
"FFB Account": a deposit account established by FFB with Chase with
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the Account No. 9102684983 and any successor deposit account of FFB designated
in writing to the Administrative Agent by the Company.
"FFB Advances": as defined in subsection 2.19(a).
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"FFB Representative": such Person or Persons from time to time
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designated in writing to the Administrative Agent by an officer of the Company
for purposes of delivering a notice of borrowing pursuant to subsection 2.19(a).
"Federal Funds Rate": for any day, the rate per annum (rounded
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upwards, if necessary, to the nearest 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 (a) if the day for which such rate is to be determined is
not a Business Day, the Federal Funds Rate for such day shall be such
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rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if such rate is not so published for
any day, the Federal Funds Rate for such day shall be the average rate charged
to Chase on such day on such transactions as determined by the Administrative
Agent.
"Financing Lease": any lease of property, real or personal, the
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obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate Bid Loan": any Bid Loan made at a fixed rate (as opposed
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to a rate based upon the LIBOR Rate).
"Fixed Rate Bid Loan Request": any Bid Loan Request requesting the
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Banks to offer to make Fixed Rate Bid Loans.
"Funded Debt": any indebtedness for money borrowed, created, issued,
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incurred, assumed or guaranteed which would, in accordance with GAAP, be
classified as long-term debt, but in any event including all indebtedness for
money borrowed, whether secured or unsecured, maturing more than one year, or
extendible at the option of the obligor to a date more than one year, after the
date of determination thereof (excluding any amount thereof included in current
liabilities).
"GAAP": as to a particular Person, such accounting principles as, in
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the opinion of the independent public accountants regularly retained by such
Person, conform at the time to United States generally accepted accounting
principles.
"Governmental Authority": any nation or government, any state or other
----------------------
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Group of Persons" means any related Persons that would constitute a
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"group" for purposes of Section 13(d) and Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (as such Section and Rule are in effect as of
the date of this Agreement).
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"Guarantee Obligation": as to any Person (the "guaranteeing person"),
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and without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case guaran-
teeing or in effect guaranteeing any Indebtedness (the "primary obligations") of
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any other third Person (the "primary obligor") in any manner, whether directly
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or indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor or (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation; provided,
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however, that the term Guarantee Obligation shall not include (x) endorsements
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of instruments for deposit or collection in the ordinary course of business,
(y) any bond or guarantee given by the Company or any Subsidiary on behalf of
any Subsidiary solely for the performance of contractual obligations with
customers or on behalf of customers in the ordinary course of business or (z)
leasehold guarantees provided by the Company in connection with properties
leased in the United Kingdom. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith.
"Indebtedness": of any Person at any date and without duplication, (a)
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all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices or endorsements for the purpose of collection in the ordinary course
of business and excluding the deferred purchase price of property or services to
be repaid
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through earnings of the purchaser to the extent such amount is not characterized
as indebtedness in accordance with GAAP), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar instrument, (c)
all obligations of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the account of such
Person and (e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof. For the purposes of this definition, (i) the issuance of
payment instruments, consumer funds transfers, mutual fund dividend payments or
redemption amounts, or other amounts paid to or received by the Company, any of
its Subsidiaries or any agent thereof in the ordinary course of business in
order for the Company or such Subsidiary to make further distribution to a third
party shall not constitute "Indebtedness", in each case to the extent payment in
respect thereof has been received by the Company, such Subsidiary or any agent
thereof and (ii) temporary overdraft obligations incurred in the ordinary course
of business in connection with settlement procedures between merchants and
transaction card issuers shall not constitute "Indebtedness".
"Information Materials": the Confidential Information Memorandum dated
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March 1997 in respect of the transactions contemplated hereby sent by Chase to
each of the Banks, including all supplements and amendments thereto.
"Insolvency": with respect to any Multiemployer Plan, the condition
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that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
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"Interest Expense": with respect to the Indebtedness of the Company
----------------
and its Subsidiaries for the applicable period, all amounts which would, in
accordance with GAAP, be incurred or expensed during such period with respect
to interest on such Indebtedness, including, without limitation, (i) imputed
interest in respect of Financing Leases, (ii) amortization of debt discount
expense and (iii) capitalized interest expense, but excluding, in any event, any
amounts included therein with respect to Purchased Receivables Financings.
"Interest Payment Date": (a) as to any ABR Loan other than a Swing
---------------------
Line Loan, the last day of each March, June, September and December and the
Termination Date, (b) as to any Eurodollar Loan or LIBOR Bid Loan having an
12
Interest Period of three months or less or any Fixed Rate Bid Loan having an
Interest Period of 90 days or less, or any C/D Rate Loan having an Interest
Period of 90 days or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan, LIBOR Bid Loan, Fixed Rate Bid Loan or C/D Rate Loan having an
Interest Period longer than three months or 90 days, respectively, each day
which is three months or 90 days, respectively, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Swing Line Loan, each of the dates occurring at thirty
day intervals after the Borrowing Date of such Swing Line Loan and the date of
payment of principal thereof.
"Interest Period": (a) with respect to any Eurodollar Loan:
---------------
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Company in its notice of
borrowing or notice of conversion, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Company by irrevocable
notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto;
(b) with respect to any C/D Rate Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such C/D Rate Loan and ending 30, 60,
90 or 180 days thereafter, as selected by the Company in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such C/D Rate Loan and ending 30, 60, 90
or 180 days thereafter, as selected by the Company by irrevocable notice to the
Administrative Agent not less than two Business Days prior to the last day of
the then current Interest Period with respect thereto;
13
and (c) with respect to any Bid Loan, the period specified in the Bid Loan
Confirmation with respect to such Bid Loan;
provided that, all of the foregoing provisions relating to Interest Periods are
--------
subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or a LIBOR
Bid Loan would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately preceding
Business Day;
(B) if any Interest Period pertaining to a C/D Rate Loan or a Fixed
Rate Bid Loan would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day;
(C) any Interest Period that would otherwise extend beyond the Termi-
nation Date shall end on the Termination Date; and
(D) any Interest Period pertaining to a Eurodollar Loan or LIBOR Bid
Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar month.
"LIBOR Bid Loan": any Bid Loan made and/or being maintained at a rate
--------------
of interest based upon the LIBOR Rate.
"LIBOR Bid Loan Request": any Bid Loan Request requesting the Banks
----------------------
to offer to make LIBOR Bid Loans.
"LIBOR Rate": in respect of any Bid Loan requested pursuant to a
----------
LIBOR Bid Loan Request, the London interbank offered rate for deposits in
Dollars for the period commencing on the date of such Bid Loan and ending on the
maturity date thereof which appears on Telerate Page 3750 as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such period.
14
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing), it being
understood that the holding of money or investments for the purpose of honoring
payment instruments shall not be considered a "Lien" for the purposes of this
definition.
"Loan Documents": this Agreement and the Notes.
--------------
"Loans": Revolving Credit Loans, Swing Line Loans and Bid Loans.
-----
"Majority Banks": at any time, the Banks holding more than 50% of the
--------------
aggregate amount of the Commitments or, if no Commitments are then in effect,
the Banks holding (or under Subsection 2.19(e) participating in) more than 50%
of the aggregate unpaid principal amount of the Loans.
"Material Adverse Effect": a material adverse effect on the ability
-----------------------
of the Company to perform its obligations under this Agreement or the Notes.
"Moody's": Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to the Revolving Credit Notes, the
-----
Swing Line Notes and Bid Notes.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA.
"Participant": as defined in subsection 9.6(b).
-----------
"Person": an individual, corporation, partnership, joint venture,
------
association, joint stock company, trust, unincorporated organization,
Governmental Authority or other entity of whatever nature.
15
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Principal Facility": the real property, fixtures, machinery and
------------------
equipment relating to any facility owned by the Company or any Subsidiary,
except for any facility that, in the opinion of the Board of Directors of the
Company, is not of material importance to the business conducted by the Company
and its Subsidiaries, taken as a whole.
"Purchasing Banks": as defined in subsection 9.6(c).
----------------
"Rating": the respective rating of each of the Rating Agencies
------
applicable to the long-term senior unsecured non-credit enhanced debt of the
Company, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Xxxxx'x.
---------------
"Rating Category": each of Rating I, Rating II, Rating III, Rating
---------------
IV, Rating V and Rating VI.
16
"Rating I, Rating II, Rating III, Rating IV, Rating V and Rating VI":
------------------------------------------------------------------
the respective Ratings set forth below:
Rating
Category S&P Xxxxx'x
-------- --- -------
Rating I greater than or greater than or
equal to AA- equal to Aa3
Rating II equal to A equal to A2
Rating III equal to A- equal to A3
Rating IV equal to BBB+ equal to Baa1
Rating V equal to BBB equal to Baa2
Rating VI equal to BBB- equal to Baa3
or lower or lower
; provided, that (i) if on any day the Ratings of the Rating Agencies do not
--------
fall in the same Rating Category, and the lower of such Ratings (i.e., the
Rating Category designated by a numerically higher Roman numeral) is one Rating
Category lower than the higher of such Ratings, then the Rating Category of the
higher of such Ratings shall be applicable for such day, (ii) if on any day the
Ratings of the Rating Agencies do not fall in the same Rating Category, and the
lower of such Ratings is more than one Rating Category lower than the higher of
such Ratings, then the Rating Category next lower from that of the higher of
such Ratings shall be applicable for such day, (iii) if on any day the Rating of
only one of the Rating Agencies is available, then the Rating Category
determined by such Rating shall be applicable for such day and (iv) if on any
day a Rating is available from neither of the Rating Agencies, then Rating VI
shall be applicable for such day. Any change in the applicable Rating Category
resulting from a change in the Rating of a Rating Agency shall become effective
on the date such change is publicly announced by such Rating Agency.
17
"Purchased Receivables":accounts receivable purchased by the Company
---------------------
or any of its Subsidiaries from third parties and not originally created by the
sale of goods or services by the Company or any of its Subsidiaries.
"Purchased Receivables Financing": any financing transaction pursuant
-------------------------------
to which Purchased Receivables are sold, transferred, securitized or otherwise
financed by any Receivables Subsidiary and as to which there is no recourse to
the Company or any of its other Subsidiaries (other than customary
representations and warranties made in connection with the sale or transfer of
Purchased Receivables).
"Receivables Subsidiary": any Subsidiary of the Company which
----------------------
purchases Purchased Receivables directly or to which Purchased Receivables are
transferred by the Company or any of its Subsidiaries, in either case with the
intention of engaging in a Purchased Receivables Financing.
"Reference Banks": Chase, NationsBank, N.A. and The Bank of New York.
---------------
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System.
"Regulation X": Regulation X of the Board of Governors of the Federal
------------
Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)2615.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law (including, without limitation, Environmental Laws), treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
18
"Responsible Officer": the chairman and the chief executive officer
-------------------
of the Company, the chief financial officer of the Company, the treasurer of the
Company or the senior vice president-finance of the Company.
"Revolving Credit Loan": as defined in subsection 2.1.
---------------------
"Revolving Credit Note": as defined in subsection 2.2.
---------------------
"S&P": Standard & Poor's Ratings Services.
---
"Short-Term Ratings": with respect to any Person, the short-term debt
------------------
ratings of such Person issued by the Rating Agencies.
"Significant Subsidiary": at any date, any Subsidiary of the Company
----------------------
which, together with its Subsidiaries, (i) has a proportionate share of Xxxxxxx-
dated Net Assets that exceeds 10% at the time of determination or (ii) has
equity in the Consolidated Net Income that exceeds 10% for the period of the
four most recently completed fiscal quarters preceding the time of determina-
tion.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
----------
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
"Swing Line Commitment": the obligation of each Swing Line Bank to
---------------------
make Committed Swing Line Loans pursuant to subsection 2.19 in an aggregate
amount at any one time outstanding up to but not exceeding the amount set
opposite such Swing Line Bank's name on Schedule 1.1 hereto under the caption
"Swing Line Commitment" (as the same may be reduced at any time or from time to
time pursuant to subsection 2.5).
19
"Swing Line Loan": as defined in subsection 2.19(a).
---------------
"Swing Line Margin": as defined in subsection 2.19(c).
-----------------
"Swing Line Note": as defined in subsection 2.19(b).
---------------
"Swing Line Quote": shall mean an offer in accordance with Section
----------------
2.19(c) hereof by a Swing Line Bank to make an Uncommitted Swing Line Loan with
a specified Swing Line Margin.
"Swing Line Request": as defined in subsection 2.19(c).
------------------
"Termination Date": April 1, 2002.
----------------
"Tranche": the collective reference to Eurodollar Loans or C/D Rate
-------
Loans the Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans shall originally have
been made on the same day); Tranches may be identified as "Eurodollar Tranches"
-------------------
or "C/D Rate Tranches", as applicable.
-----------------
"Transferee": as defined in subsection 9.6(f).
----------
"Type": as to any Loan, its nature as an ABR Loan, a Eurodollar Loan
----
or a C/D Rate Loan.
"Uncommitted Swing Line Loan": as defined in subsection 2.19(c).
---------------------------
"Unrefunded Swing Line Loans": as defined in subsection 2.19(e).
---------------------------
"Western Union Pension Plan": the pension plan of Western Union
--------------------------
Financial Services, Inc. as described in Schedule 3.10 hereto.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined
20
in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof,
-----------
each Bank severally agrees to make revolving credit loans (each, a "Revolving
---------
Credit Loan"; collectively, the "Revolving Credit Loans") to the Company from
----------- ----------------------
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding which, when added to the amount of such Bank's
Commitment Percentage of the aggregate principal amount of all Swing Line Loans
then outstanding, shall not exceed the amount of such Bank's Commitment;
provided that, after giving effect to the use of proceeds of Revolving Credit
--------
Loans to repay any Swing Line Loans, the aggregate principal amount of Revolving
Credit Loans, Swing Line Loans and Bid Loans outstanding at any one time shall
not exceed the aggregate amount of the Commitments at such time and provided
further that the aggregate unpaid principal amount of all Swing Line Loans and
Revolving Credit Loans made by any Swing Line Bank shall not exceed (i) the
greater of the Commitment of such Swing Line Bank and (ii) the Swing Line
Commitment of such Swing Line Bank. During the Commitment Period the Company
may use the Commitments by borrowing, prepaying the Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv) a combination thereof, as
determined by the Company and notified to the Administrative Agent in accor-
dance with subsections 2.3 and 2.7, provided that no Revolving Credit Loan shall
--------
be made as a Eurodollar Loan or a C/D Rate Loan after the day that is one month
or 30 days, respectively, prior to the Termination Date.
21
2.2 Revolving Credit Notes. The Revolving Credit Loans made by each
----------------------
Bank shall be evidenced by a promissory note of the Company, substantially in
the form of Exhibit A with appropriate insertions as to payee, date and
principal amount (a "Revolving Credit Note"), payable to the order of such Bank
---------------------
and in a principal amount equal to the aggregate unpaid principal amount of all
Revolving Credit Loans made by such Bank. Each Bank is hereby authorized to
record the date, Type and amount of each Revolving Credit Loan made by such
Bank, each continuation thereof, each conversion of all or a portion thereof to
another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans and C/D Rate Loans, the length of
each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of its Revolving Credit Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
----- -----
provided that the failure of any Bank to make any such recordation (or any error
--------
in such recordation) shall not affect the obligations of the Company hereunder
or under any Revolving Credit Note in respect of the Revolving Credit Loans.
Each Revolving Credit Note shall (x) be dated the Closing Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of interest in
accordance with subsection 2.9.
2.3 Procedure for Borrowing. The Company may borrow under the
-----------------------
Commitments during the Commitment Period on any Business Day, provided that the
--------
Company shall deliver to the Administrative Agent a Borrowing Certificate (which
certificate to be effective on the requested Borrowing Date must be received by
the Administrative Agent (a) prior to noon, New York City time, three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, (b) prior to noon,
New York City time, two Business Days prior to the requested Borrowing Date, if
all or any part of the requested Revolving Credit Loans are to be initially C/D
Rate Loans, or (c) prior to noon, New York City time, on the requested Borrowing
Date, otherwise), specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans, C/D Rate Loans or a combination thereof and (iv) if the borrowing is to
be entirely or partly of Eurodollar Loans or C/D Rate Loans, the respective
amounts of each such Type of Revolving Credit Loan and the respective lengths of
the initial Interest Periods therefor. Each borrowing under the Commitments
shall be in an amount equal to (x) in the case of ABR Loans other than a Swing
Line Loan, $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or,
if the then Available Commitments are less than $5,000,000, such lesser amount)
and (y) in the case of Eurodollar Loans or C/D Rate Loans, $5,000,000 or a whole
multiple
22
of $1,000,000 in excess thereof. Upon receipt of a Borrowing Certificate, the
Administrative Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent specified in subsection 9.2 prior to 2:00 P.M., New York
City time in the case of ABR Loans and 11:00 A.M., New York City time in the
case of Eurodollar Loans and C/D Rate Loans, on the Borrowing Date
requested by the Company in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Company by the
Administrative Agent crediting the account of the Company on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent.
2.4 Fees. (a) The Company agrees to pay to the Administrative
----
Agent, for the account of each Bank, a facility fee for the period from and
including the Closing Date through the Termination Date, calculated as an amount
equal to the product of (i) the Facility Fee Rate and (ii) the average daily
amount of the Commitment of such Bank (regardless of usage) during the period
for which such facility fee is calculated, payable in arrears on the last day of
each December, March, June and September (for the quarterly period ended on such
date) and on the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein (for the period from the last quarterly
payment date to the Termination Date or such other date, as applicable). Such
payments shall commence on June 30, 1997, and such first payment shall be for
the period from the Closing Date through June 30, 1997.
(b) The Company agrees to pay to the Administrative Agent for its own
account or the account of Chase or Chase Securities Inc., as the case may be,
the fees in the respective amounts and at the respective times set forth in the
Engagement Letter and the Fee Letter, dated March 3, 1997, among Chase, Chase
Securities Inc. and the Company.
2.5 Termination or Reduction of Commitments. The Company shall have
---------------------------------------
the right, upon not less than five Business Days' notice to the Administrative
Agent, to terminate the Commitments or, from time to time, to reduce the amount
of the Commitments, provided that no such termination or reduction shall be
--------
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the aggregate principal amount of the Loans
then outstanding would exceed the Commitments then in effect. Upon receipt of
any
23
such notice the Administrative Agent shall promptly notify each Bank thereof.
Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple
of $1,000,000 in excess thereof and shall reduce permanently the Commitments
then in effect. Any reduction (to the extent that, after such reduction, the
Commitment of such Swing Line Bank shall be less than the Swing Line Commitment
of such Swing Line Bank) or termination of the Commitment of any Swing Line Bank
shall automatically result in a termination or reduction in an equal amount of
the Swing Line Commitment of such Swing Line Bank.
2.6 Optional Prepayments. Subject to subsection 2.16, the Company
--------------------
may at any time and from time to time prepay the Revolving Credit Loans, in
whole or in part, without premium or penalty, upon irrevocable notice to the
Administrative Agent given prior to 10:00 A.M., New York City time, at least
three Business Days in advance in the case of Eurodollar Loans, at least two
Business Days in advance in the case of C/D Rate Loans and on the requested
prepayment date in the case of ABR Loans, specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, C/D Rate Loans,
ABR Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Bank thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. The Company
shall not have the right to prepay any principal amount of any Bid Loan without
the prior written consent of the applicable Bank then making such Bid Loan.
2.7 Conversion and Continuation Options. (a) The Company may elect
-----------------------------------
from time to time to convert Eurodollar Loans or C/D Rate Loans to ABR Loans,
and/or to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans or C/D Rate
--------
Loans may only be made on the last day of an Interest Period with respect
thereto. The Company may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election, provided that any such
--------
conversion of C/D Rate Loans may, subject to the third succeeding sentence, only
be made on the last day of an Interest Period with respect thereto. Any such
notice of conversion to Eurodollar Loans or C/D Rate Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such
24
notice the Administrative Agent shall promptly notify each Bank thereof. All or
any part of outstanding Eurodollar Loans, ABR Loans and C/D Rate Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
--------
Eurodollar Loan or a C/D Rate Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Banks have determined
that such a conversion is not appropriate, (ii) any such conversion may only be
made if, after giving effect thereto, subsection 2.8 shall not have been
contravened and (iii) no Loan may be converted into a Eurodollar Loan or a C/D
Rate Loan after the date that is one month or 30 days, respectively, prior to
the Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the Company giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan or C/D Rate Loan may be continued as such (i)
--------
when any Event of Default has occurred and is continuing and the Administrative
Agent or the Majority Banks have determined that such a continuation is not
appropriate, (ii) if, after giving effect thereto, subsection 2.8 would be
contravened or (iii) after the date that is one month or 30 days prior to the
Termination Date and provided, further, that if the Company shall fail to give
-------- -------
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Bank thereof. For purposes of this subsection, any
reference to an ABR Loan shall be deemed to exclude any Swing Line Loan.
2.8 Minimum Amounts of Tranches. All borrowings, conversions and
---------------------------
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising (i) each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (ii) each C/D Rate Tranche shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.9 Interest Rates and Payment Dates. (a) Each ABR Loan shall
--------------------------------
bear interest at a rate per annum equal to the ABR.
25
(b) Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin.
(c) Each C/D Rate Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Margin.
(d) Each Bid Loan shall bear interest as provided in subsection 2.18.
(e) Each Uncommitted Swing Line Loan shall bear interest as provided
in subsection 2.19; provided that upon any Bank acquiring a participation or a
direct interest in such Uncommitted Swing Line Loan pursuant to subsection
2.19(e), such Uncommitted Swing Line Loan shall bear interest at a rate per
annum equal to the ABR.
(f) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue interest,
the rate described in paragraph (a) of this subsection plus 2%, in each case
from the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(g) Interest on each Revolving Credit Loan and each Swing Line Loan
shall be payable in arrears on each Interest Payment Date, provided that
--------
interest accruing pursuant to paragraph (f) of this subsection shall be payable
on demand. Interest on each Bid Loan shall be payable as set forth in the
applicable Bid Note.
2.10 Computation of Interest and Fees. (a) Facility fees and,
--------------------------------
whenever it is calculated on the basis of the Prime Rate, interest on ABR Loans
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; otherwise, interest shall be calculated on the
basis of a 360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Company and the Banks of each
determination of a Eurodollar Rate or of a C/D Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such
26
change in the ABR is announced or such change in the C/D Assessment Rate or the
C/D Reserve Percentage becomes effective, as the case may be. The Administra-
tive Agent shall as soon as practicable notify the Company and the Banks of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.9(b) or (c).
2.11 Inability to Determine Interest Rate. In the event that
------------------------------------
prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate, the LIBOR Rate or the C/D
Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Banks that the Eurodollar Rate, the LIBOR Rate or the C/D Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Banks (as conclusively certified by such Banks)
of making or maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic (confirmed in
writing) notice thereof to the Company and the Banks as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans, LIBOR Bid Loans
or C/D Rate Loans, as the case may be, requested to be made on the first day of
such Interest Period shall be made as ABR Loans or Fixed Rate Bid Loans based
upon the ABR, (y) any Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans or C/D Rate Loans, as the case may be,
shall be converted to or continued as ABR Loans and (z) any Loans that pursuant
to subsection 2.7(b) were to have been continued on the first day of such
Interest Period as Eurodollar Loans or C/D Rate Loans, as the case may be, shall
be converted to ABR Loans. Until such notice has been withdrawn by the Adminis-
trative Agent, no further Eurodollar Loans, LIBOR Bid Loans or C/D Rate Loans,
27
as the case may be, shall be made or continued as such, nor shall the Company
have the right to convert Loans to Eurodollar Loans or C/D Rate Loans, as the
case may be.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing of
-------------------------------
Revolving Credit Loans by the Company from the Banks hereunder, each payment by
the Company on account of any fees payable to the Banks hereunder and any
reduction of the Commitments of the Banks shall be made pro rata according to
the respective Commitment Percentages of the Banks. Each payment (including
each prepayment) by the Company on account of principal of and interest on the
Revolving Credit Loans shall be made pro rata according to the respective aggre-
gate amounts of principal and interest then due and owing in respect of the
Revolving Credit Loans. Except as otherwise provided in subsection 2.19, all
payments (including prepayments) to be made by the Company hereunder and under
the Notes, whether on account of principal, interest, fees or otherwise, shall
be made without set off, counterclaim or any other deduction whatsoever and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Banks, at the
Administrative Agent's office specified in subsection 9.2, in Dollars and in
immediately available funds, and upon receipt by the Administrative Agent of any
payment made by the Company in accordance with the terms of this Agreement and
the Notes, the Company shall have satisfied its payment obligation with respect
to the obligation on account of which such payment was made. Except as
otherwise provided in subsection 2.19, any such payment made at or after 12:00
Noon, New York City time, on such day shall be deemed made on the following
Business Day. The Administrative Agent shall distribute such payments to the
Banks promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make the
amount that would constitute its Commitment Percentage of the borrowing of a
Revolving
28
Credit Loan on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such Borrowing Date, and the Administrative Agent
may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such Borrowing Date, such Bank shall pay to the
Administrative Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate (as defined in the definition of "ABR")
during such period as quoted by the Administrative Agent, (ii) the amount of
such Bank's Commitment Percent age of such borrowing, and (iii) a fraction the
numerator of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Bank's Commitment Percentage of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Bank with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Bank's Commitment
Percentage of such borrowing is not in fact made available to the Administrative
Agent by such Bank within three Business Days of such Borrowing Date, the
Administrative Agent shall be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from
the Company.
2.13 Illegality. Notwithstanding any other provision herein, if any
----------
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Bank to make or maintain Eurodollar Loans or
LIBOR Bid Loans as contemplated by this Agreement, (a) the commitment of such
Bank hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Domestic Dollar Loans to Eurodollar Loans shall forthwith be cancelled
and (b) such Bank's Loans then outstanding as Eurodollar Loans or LIBOR Bid
Loans, if any, shall be converted automatically to ABR Loans or Fixed Rate Bid
Loans based upon the ABR on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan or LIBOR Bid Loans
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Company shall pay to such Bank such amounts, if any,
as may be required pursuant to subsection 2.16.
2.14 Requirements of Law. (a) In the event that Eurocurrency
-------------------
Reserve Requirements or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Bank with any request
or directive
29
(whether or not having the force of law) from any central bank or other Govern
mental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan, LIBOR Bid Loan or
C/D Rate Loan made by it, or change the basis of taxation of payments to such
Bank in respect thereof (except for taxes covered by subsection 2.15 and changes
in franchise taxes or the rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Bank which is not otherwise included in the determination of the Eurodollar
Rate, the C/D Rate or the interest rate applicable to any Bid Loan hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, Bid Loans or C/D Rate Loans or to
reduce any amount receivable hereunder in respect thereof then, in any such
case, the Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such increased cost or reduced
amount receivable. If any Bank becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Company, through the
Administrative Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this subsection
submitted by such Bank, through the Administrative Agent, to the Company in good
faith and setting forth in reasonable detail the calculation of such amounts
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder until the second anniversary of such payment and
termination.
(b) In the event that any Bank or corporation controlling such Bank
shall have determined that any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof or compliance
by such Bank
30
or such corporation with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof does or shall have the effect of reducing the rate
of return on such Bank's capital as a consequence of its obligations hereunder
to a level below that which such Bank could have achieved but for such change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, after submission by such Bank in good faith to the Company (with a
copy to the Administrative Agent) of a written request therefor setting forth in
reasonable detail the calculation of such amount (which request shall be
conclusive in the absence of manifest error), the Company shall pay to such Bank
such additional amount or amounts as will compensate such Bank for such
reduction. This covenant shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder until the
second anniversary of such payment and termination.
2.15 Taxes. (a) Subject to subsection 2.15(b) or 9.6(g), as
-----
appropriate, all payments made by the Company under this Agreement and the Notes
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority,
excluding, in the case of the Administrative Agent and each Bank, net income
taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or such Bank, as the case may be, as a result of a present
or former connection between the jurisdiction of the government or taxing
authority imposing such tax and the Administrative Agent or such Bank (excluding
a connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or the Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
------
the Administrative Agent or any Bank hereunder or under the Notes, the amounts
so payable to the Administrative Agent or such Bank (so long as such Bank is in
compliance with subsection 2.15(b) or 9.6(g), as appropriate and if applicable)
shall be increased to the extent necessary to yield to the Administrative Agent
or such Bank (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes. Whenever any Taxes are
31
payable by the Company, as promptly as possible thereafter the Company shall
send to the Administrative Agent for its own account or for the account of such
Bank, as the case may be, a certified copy of an original official receipt
received by the Company showing payment thereof. If the Company fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Company shall indemnify the Administrative Agent and the Banks for
any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Bank as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder.
(b) Each Bank party to this Agreement on the Closing Date that is not
incorporated under the laws of the United States of America or a state thereof
agrees that, on or prior to the Closing Date, it will deliver to the Company and
the Administrative Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Bank also agrees to deliver to the Company and the Administra-
tive Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9,
or successor applicable forms or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company, and such extensions or renewals
thereof as may reasonably be requested by the Company or the Administrative
Agent, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Bank from duly completing and
delivering any such form with respect to it and such Bank so advises the Company
and the Administrative Agent. Such Bank shall certify (i) in the case of a Form
1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax.
2.16 Indemnity. The Company agrees to indemnify each Bank and to
---------
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Company in payment when due of the
principal amount of or interest on any Eurodollar Loan, Bid Loan or C/D Rate
32
Loan, (b) default by the Company in making a borrowing or conversion after the
Company has given (or is deemed to have given) a notice in accordance with
subsection 2.18 (so long as the Company shall have accepted a Bid Loan offered
in connection with any such notice), (c) default by the Company in making a
borrowing of, conversion into or continuation of Eurodollar Loans or C/D Rate
Loans after the Company has given a notice requesting the same in accordance
with the provisions of this Agreement, (d) default by the Company in making any
prepayment of Eurodollar Loans or C/D Rate Loans after the Company has given a
notice thereof in accordance with the provisions of this Agreement or (e) the
making of a prepayment or conversion, or the purchase pursuant to subsection
2.17, of Eurodollar Loans, LIBOR Bid Loans, Fixed Rate Bid Loans or C/D Rate
Loans on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss (other than
non-receipt of the Applicable Margin or, without duplication, anticipated
profits) or expense arising from the reemployment of funds obtained by it or
from fees payable to terminate the deposits from which such funds were obtained
(it being understood that any such calculation will be made on notional amounts
as the Banks are not required to show that they matched deposits specifically).
A certificate as to any additional amounts payable pursuant to this subsection
submitted by such Bank, through the Administrative Agent, to the Company in good
faith shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
2.17 Action of Affected Banks. Each Bank agrees to use reasonable
------------------------
efforts (including reasonable efforts to change the booking office for its
Loans) to avoid or minimize any illegality pursuant to subsection 2.13 or any
amounts which might otherwise be payable pursuant to subsection 2.14(a) or 2.15;
provided, however, that such efforts shall not cause the imposition on such Bank
-------- -------
of any additional costs or legal or regulatory burdens deemed by such Bank to be
material and shall not be deemed by such Bank to be otherwise contrary to its
policies. In the event that such reasonable efforts are insufficient to avoid
all such illegality or all amounts that might be payable pursuant to subsection
2.14(a) or 2.15, then such Bank (the "Affected Bank") shall use its reasonable
-------------
efforts to transfer to any other Bank (which itself is not then an Affected
Bank) its Loans and Commitment subject to the provisions of subsection 9.6(c);
provided, however, that such transfer shall not be deemed by such Affected Bank,
-------- -------
in its sole discretion, to be disadvantageous to it or contrary to its policies.
In the event that the Affected Bank is unable, or otherwise is unwilling, so to
transfer its Loans and Commitment, the Company may designate an alternate lender
(reasonably acceptable to the Administrative
33
Agent) to purchase the Affected Bank's Loans and Commitment, at par and
including accrued interest, and, subject to the provisions of subsection 9.6(c),
the Affected Bank shall transfer its Commitment to such alternate lender and
such alternate lender shall become a Bank hereunder. Any fee payable to the
Administrative Agent pursuant to subsection 9.6(e) in connection with such
transfer shall be for the account of the Company.
2.18 Bid Loans. (a) The Company may request one or more Banks to
---------
make offers to make Bid Loans from time to time on any Business Day during the
period from the Closing Date until the date seven days prior to the Termination
Date in the manner set forth in this subsection 2.18, provided that the
--------
aggregate principal amount of all Revolving Credit Loans, Swing Line Loans and
Bid Loans outstanding at any one time shall not exceed the aggregate amount of
the Commitments at such time. Each Bank may, but shall have no obligation to,
make such offers, and the Company may, but shall have no obligation to, accept
any such offers in the manner set forth herein.
(b) (i) The Company may request Bid Loans by delivering a Bid Loan
Request to the Administrative Agent, not later than 10:00 A.M. (New York City
time) four Business Days prior to the proposed Borrowing Date (in the case of a
LIBOR Bid Loan Request), and not later than 3:00 p.m. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
Bid Loan Request). Each Bid Loan Request shall solicit Bid Quotes for Bid Loans
in an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and for not more than four alternative maturity
dates for such Bid Loans, none of which shall be earlier than seven days from
the respective requested Borrowing Date or later than the earlier of (A) the
date (1) 180 days from the respective requested Borrowing Date in the case of a
Fixed Rate Bid Loan Request and (2) 6 months from the respective requested
Borrowing Date in the case of a LIBOR Bid Loan Request and (B) the Termination
Date. Bid Loan Requests may be submitted no more frequently than once during
any period of three successive Business Days. The Administrative Agent shall
promptly notify each Bank by facsimile transmission of the contents of each Bid
Loan Request received by it.
(ii) In the case of a LIBOR Bid Loan Request, upon receipt of notice
from the Administrative Agent of the contents of such Bid Loan Request, any Bank
that elects, in its sole discretion, to do so, may irrevocably offer to make one
or more Bid Loans at the LIBOR Rate plus or minus a margin for each such Bid
Loan
34
determined by such Bank in its sole discretion. Any such irrevocable offer
shall be made by delivering a Bid Quote to the Administrative Agent, before
10:00 a.m. (New York City time) three Business Days before the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans for each maturity
date which such Bank would be willing to make (which amount may, subject to
subsection 2.1(a), exceed such Bank's Commitment) and the margin above or below
the LIBOR Rate at which such Bank is willing to make each such Bid Loan; the
Administrative Agent shall advise the Company before 10:30a.m. (New York City
time) three Business Days before the proposed Borrowing Date, of the contents of
each such Bid Quote received by it. If the Administrative Agent in its capacity
as a Bank shall, in its sole discretion, elect to make any such offer, it shall
advise the Company of the contents of its Bid Quote before 9:45 a.m. (New York
City time) three Business Days before the proposed Borrowing Date.
(iii) In the case of a Fixed Rate Bid Loan Request, upon receipt of
notice from the Administrative Agent of the contents of such Bid Loan Request,
any Bank that elects, in its sole discretion, to do so, may irrevocably offer to
make one or more Bid Loans at a rate or rates of interest for each such Bid Loan
determined by such Bank in its sole discretion. Any such irrevocable offer shall
be made by delivering a Bid Quote to the Administrative Agent, before 9:30 a.m.
(New York City time) on the proposed Borrowing Date, setting forth the maximum
amount of Bid Loans for each maturity date which such Bank would be willing to
make (which amount may, subject to subsection 2.1(a), exceed such Bank's Commit-
ment) and the rate or rates of interest therefor; the Administrative Agent shall
advise the Company before 10:00 a.m. (New York City time) on the proposed
Borrowing Date of the contents of each such Bid Quote received by it. If the
Administrative Agent in its capacity as a Bank shall, in its sole discretion,
elect to make any such offer, it shall advise the Company of the contents of its
Bid Quote before 9:15 a.m. (New York City time) on the proposed Borrowing Date.
(iv) The Company shall before 11:30 a.m. (New York City time) three
Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan
Request and before 10:30 a.m. (New York City time) on the proposed Borrowing
Date in the case of a Fixed Rate Bid Loan Request either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Administrative Agent
telephone notice to that effect, or
35
(B) accept one or more of the offers made by any Bank or Banks
pursuant to clause (ii) or clause (iii) above, as the case may be, by giving
telephone notice (immediately confirmed by execution and facsimile transmission
of a Bid Loan Confirmation) to the Administrative Agent of the amount of Bid
Loans to be made by each Bank (which amount shall be equal to or less than the
maximum amount requested to be made, but in no event less than $5,000,000,
notified to the Company by the Administrative Agent on behalf of such Bank for
such Bid Loans pursuant to clause (ii) or clause (iii) above, as the case may
be), provided that the Company may not accept offers for Bid Loans in an
--------
aggregate principal amount in excess of the maximum principal amount requested
in the related Bid Loan Request.
(v) If the Company notifies the Administrative Agent that a Bid Loan
Request is cancelled pursuant to clause (iv)(A) above, the Administrative Agent
shall give prompt telephone notice thereof to the Banks, and the Bid Loans
requested thereby shall not be made.
(vi) If the Company accepts one or more of the offers made by any
Bank or Banks pursuant to clause (iv)(B) above, the Administrative Agent shall
as promptly as practicable following receipt of the Company's acceptance, three
Business Days before the proposed Borrowing Date in the case of a LIBOR Bid Loan
Request and on the proposed Borrowing Date in the case of a Fixed Rate Bid Loan
Request, notify each Bank which has made such an offer, of the aggregate amount
of such Bid Loans to be made on such Borrowing Date for each maturity date and
of the acceptance of any offers for each maturity date to make such Bid Loans
made by such Bank. Each Bank which is to make a Bid Loan shall, before 12:00
noon (New York City time) on the Borrowing Date specified in the Bid Loan
Request applicable thereto, make available to the Administrative Agent at its
office set forth in subsection 9.2 the amount of such Bank's Bid Loans, in
immediately available funds. The Administrative Agent will make such funds
available to the Company as soon as practicable on such date at the
Administrative Agent's aforesaid address.
(vii) Each Bid Loan shall be evidenced by a promissory note of the
Company, substantially in the form of Exhibit E, with appropriate insertions (a
"Bid Note"), payable to the order of the applicable Bank and representing the
--------
obligation of the Company to pay the unpaid principal amount of all Bid Loans
made by such Bank, and to pay interest thereon as prescribed in subsection
2.18(e). Each such Bank is hereby authorized to record the date and amount of
each Bid Loan made by such Bank, the maturity date thereof, the date and amount
of each payment of
36
principal thereof and the interest rate with respect thereto on the schedule
annexed to and constituting part of its Bid Note or in the books and records of
such Bank in such manner as is reasonable and customary, and any such
recordation shall constitute prima facie evidence of the accuracy of the
----- -----
information so recorded, provided that the failure to make any such recordation
--------
shall not affect the obligations of the Company hereunder or under any Bid Note.
Each Bid Note shall be dated the Closing Date and each Bid Loan evidenced
thereby shall bear interest for the period from and including the Borrowing Date
thereof on the unpaid principal amount thereof from time to time outstanding at
the applicable rate per annum determined as provided in, and such interest shall
be payable as specified in, subsection 2.18(e).
(c) Within the limits and on the conditions set forth in this
subsection 2.18, the Company may from time to time borrow under this subsection
2.18, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.18.
(d) The Company shall repay to the Administrative Agent for the
account of each Bank which has made a Bid Loan on the maturity date of each Bid
Loan (such maturity date being that specified by the Company for repayment of
such Bid Loan in the related Bid Loan Request) the then unpaid principal amount
of such Bid Loan. The Company shall not have the right to prepay any principal
amount of any Bid Loan without the prior written consent of the applicable Bank
then making such Bid Loan.
(e) The Company shall pay interest on the unpaid principal amount of
each Bid Loan from the date of such Bid Loan to the stated maturity date
thereof, at the rate of interest for such Bid Loan determined pursuant to
paragraph (b) above (calculated on the basis of a 360 day year for actual days
elapsed), payable on the Interest Payment Date specified by the Company for such
Bid Loan in the related Bid Loan Request as provided in the Bid Note evidencing
such Bid Loan.
2.19 Swing Line Commitments. (a) Subject to the terms and conditions
----------------------
hereof and provided no Default or Event of Default shall have occurred and be
continuing, each Swing Line Bank hereby agrees to make swing line loans to the
Company (individually, a "Committed Swing Line Loan"; collectively the
-------------------------
"Committed Swing Line Loans" and together with the Uncommitted Swing Line Loans,
---------------------------
the "Swing Line Loans") from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed the Swing
Line Commitment of such Swing Line Bank; provided that the aggregate unpaid
--------
37
principal amount of all Swing Line Loans, together with the aggregate unpaid
principal amount of all Revolving Credit Loans and all Bid Loans at any one time
outstanding, may not exceed the aggregate amount of the Commitments and provided
further that the aggregate unpaid principal amount of all Swing Line Loans and
Revolving Credit Loans made by any Swing Line Bank shall not exceed the
Commitment of such Swing Line Bank. Amounts borrowed by the Company under this
subsection 2.19 may be repaid and, through but excluding the Termination Date,
reborrowed. All Committed Swing Line Loans shall be made as ABR Loans and may
not be converted into Eurodollar Loans or C/D Rate Loans. Each borrowing of
Swing Line Loans shall be in an amount equal to $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. The Company shall give the Administrative
Agent (which shall promptly notify each Swing Line Bank) irrevocable notice
(which notice must be received by the Administrative Agent prior to 3:00 p.m.,
New York City time) on the requested Borrowing Date specifying the amount of the
requested Committed Swing Line Loan to be made by such Swing Line Bank; provided
--------
that the Company hereby irrevocably authorizes the FFB Representative as agent
of the Company to deliver such notices to the Administrative Agent on behalf of
the Company in respect of Committed Swing Line Loans and any notices in respect
of Uncommitted Swing Line Loans pursuant to subsection 2.19(c) (any Swing Line
Loans made pursuant to any such notice from FFB, "FFB Advances") in the
------------
aggregate principal amount at any one time outstanding not in excess of
$25,000,000. The proceeds of each Committed Swing Line Loan shall be made
available by each Swing Line Bank to the Administrative Agent for the account of
the Company at the office of the Administrative Agent specified prior to 4:30
p.m. on the requested Borrowing Date; provided that the proceeds of FFB Advances
--------
shall be made available by each Swing Line Bank by directly crediting the FFB
Account with such proceeds at the office of the Administrative Agent specified
prior to 4:30 p.m. on the requested Borrowing Date. The Company hereby
irrevocably agrees that any FFB Advance will constitute Swing Line Loans for all
purposes of this Agreement.
(b) The Swing Line Loans made by each Swing Line Bank to the Company
shall be evidenced by a promissory note of the Company substantially in the form
of Exhibit I, with appropriate insertions (the "Swing Line Note"), payable to
---------------
the order of such Swing Line Bank and representing the obligation of the Company
to pay the unpaid principal amount of the Swing Line Loans made to the Company,
with interest thereon as prescribed in subsection 2.9. Each Swing Line Bank is
hereby authorized to record the Borrowing Date, the amount of each Committed
Swing Line Loan made to the Company and the date and amount of each payment
38
or prepayment of principal thereof, on the schedule annexed to and constituting
a part of its Swing Line Note (or any continuation thereof) and any such
recordation shall constitute prima facie evidence of the accuracy of the
----- -----
information so recorded. Each Swing Line Note shall (a) be dated the Closing
Date, (b) be stated to mature on the Termination Date and (c) bear interest for
the period from the date thereof to the Termination Date on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate per
annum determined as provided in, and payable as specified in, subsection 2.9.
(c) In addition to Committed Swing Line Loans made pursuant to
subsection 2.19(a), the Company may, on any Business Day prior to the
Termination Date, request the Swing Line Banks to make offers on such Business
Day to make a Swing Line Loan (an "Uncommitted Swing Line Loan"). The Swing
Line Banks may, but shall have no obligation to, make an offer to make an
Uncommitted Swing Line Loan and FFB may, but shall have no obligation to,
accept any such offer to make an Uncommitted Swing Line Loan. When the Company
wishes to request an offer from the Swing Line Banks to make an Uncommitted
Swing Line Loan, on the proposed Borrowing Date, it shall give the Swing Line
Banks, with a copy simultaneously to the Administrative Agent, notice (a "Swing
Line Request"), which notice shall be effective only if received by the Swing
Line Banks (unless the Swing Line Banks shall otherwise consent) no later than
(i) 3:00 p.m. New York time, in the case of a borrowing in a principal amount up
to but not exceeding $200,000,000, (ii) 2:00 p.m. New York time, in the case of
a borrowing in a principal amount greater than $200,000,000 and up to but not
exceeding $300,000,000 and (iii) 1:00 p.m. New York time, in the case of a
borrowing in a principal amount greater than $300,000,000. Each such Swing Line
Request shall specify the principal amount of the Uncommitted Swing Line Loans
requested thereby (which shall be at least $5,000,000 and in larger multiples of
$1,000,000). Upon receipt of a Swing Line Request for an Uncommitted Swing Line
Loan, each Swing Line Bank may, but shall not be obligated to, submit a Swing
Line Quote to the Company, which Swing Line Quote shall contain an offer to make
an Uncommitted Swing Line Loan in response to such Swing Line Request. Each
Swing Line Quote must specify (i) the principal amount of the Uncommitted Swing
Line Loans for which such offer is being made (which principal amount shall be
at least $5,000,000 or a larger multiple of $1,000,000) and (ii) a quote of a
margin (the "Swing Line Margin") above the Federal Funds Rate which, when added
to the Federal Funds Rate, will be the interest rate per annum applicable to the
Uncommitted Swing Line Loan to be borrowed. Upon receipt of a Swing Line Quote
in response to its Swing Line Request for an Uncommitted Swing Line
39
Loan, the Company shall within five minutes of receipt of such Swing Line Quote
notify each Swing Line Bank that gave a Swing Line Quote of its acceptance or
nonacceptance of such Swing Line Quote; provided that a failure of the Company
--------
so to notify any Swing Line Bank shall be nonacceptance of such Swing Line
Quote. Swing Line Quotes shall be accepted, if at all, based on the lowest Swing
Line Margins contained therein and pro rata in the case of equal Swing Line
Margins. Promptly upon the Company's acceptance of a Swing Line Quote from any
Swing Line Bank, such Swing Line Bank shall make the amount of the Uncommitted
Swing Line Loan to be made by it on such date available to the Administrative
Agent for the account of the Company at the office of the Administrative Agent
specified prior to 4:30p.m. on the requested Borrowing Date; provided that the
amount of any Uncommitted Swing Line Loan constituting an FFB Advance shall be
directly credited to the FFB Account at the office of the Administrative Agent
specified prior to 4:30p.m. on the requested Borrowing Date. The Company and
each Swing Line Bank that makes an Uncommitted Swing Line Loan shall thereupon
promptly notify the Administrative Agent (which shall promptly notify the Banks)
that a Swing Line Loan has been made and the amount thereof and the interest
rate thereof.
(d) In the event that the Company has not notified the Administrative
Agent of its intent to repay the Swing Line Loans made on any Borrowing Date by
12:00 noon New York time on the Business Day immediately following such
Borrowing Date and has not in fact repaid such Swing Line Loans (including
accrued interest thereon) in full by such time, the Company shall be deemed to
have made an irrevocable request to the Administrative Agent under subsection
2.3 (which for purposes of this subsection shall be deemed to be timely and
sufficient) for a borrowing on such date of Revolving Credit Loans that are ABR
Loans in an aggregate amount equal to the then unpaid aggregate principal amount
of such Swing Line Loans made to the Company. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay such Swing Line Loans. Any
payments in respect of the Swing Line Loans shall be applied first to the
payment in full of the FFB Advances.
(e) In the event that for any reason whatsoever (including, without
limitation, the occurrence of an event specified in paragraph (g) of subsection
7 with respect to the Company), the procedures set forth in the foregoing
paragraph (d) are not followed, each Bank shall, upon notice from the
Administrative Agent, promptly purchase from the Swing Line Banks participations
in (or, if and to the extent specified by any Swing Line Bank, a direct interest
in) the Swing Line
40
Loans made by the Swing Line Banks (collectively, the "Unrefunded Swing Line
---------------------
Loans") in an aggregate amount equal to the amount of the Revolving Credit Loan
-----
it would have been obligated to make pursuant to the procedures set forth in the
foregoing paragraph (d).
(f) Each Bank shall, not later than 4:00 p.m. New York time on the
Business Day on which such notice is received (if such notice is received by
2:15 p.m. New York time) or 9:00 a.m. New York time on the next succeeding
Business Day (if such notice is received after 2:15 p.m. New York time), make
available the amount of the Revolving Credit Loan to be made by it (or the
amount of the participations or direct interests to be purchased by it, as the
case may be) to the Administrative Agent at the office of the Administrative
Agent specified in subsection 9.2 and the amount so received by the
Administrative Agent shall promptly be made available to the Swing Line Banks by
remitting the same, in immediately available funds, to the Swing Line Banks, in
accordance with the provisions of paragraph (h) below.
(g) Whenever, at any time after any Swing Line Bank has received from
any Bank such Bank's participating interest in an Unrefunded Swing Line Loan
pursuant to paragraph (e) above, such Swing Line Bank receives any payment on
account thereof, such Swing Line Bank will distribute to such Bank its
participating interest in such amount (appropriately adjusted in the case of
interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded); provided, however, that in
-------- -------
the event that such payment received by such Swing Line Bank is required to be
returned, such Bank will return to such Swing Line Bank any portion thereof
previously distributed by such Swing Line Bank to it.
(h) Each borrowing of Committed Swing Line Loans by the Company from
the Swing Line Banks hereunder, each payment by the Company on account of any
fees payable to the Swing Line Banks hereunder and any reduction of the Swing
Line Commitments of the Swing Line Banks shall be made equally among the Swing
Line Banks pro rata according to the respective Swing Line Commitment
Percentages of the Swing Line Banks. Each payment (including each prepayment)
by the Company on account of principal of and interest on the Swing Line Loans
shall be made pro rata according to the respective aggregate amounts of
principal and interest then due and owing in respect of the Swing Line Loans.
All payments (including prepayments) to be made by the Company hereunder and
under the Swing Line Notes, whether on account of principal, interest, fees or
41
otherwise, shall be made without set off, counterclaim or any other deduction
whatsoever and shall be made prior to 1:00 p.m., New York City time, on the due
date thereof to the Administrative Agent, for the account of the Swing Line
Banks, at the Administrative Agent's office specified in subsection 9.2, in
Dollars and in immediately available funds, and upon receipt by the
Administrative Agent of any payment made by the Company in accordance with the
terms of this Agreement and the Swing Line Notes, the Company shall have
satisfied its payment obligation with respect to the obligation on account of
which such payment was made. Any such payment made at or after 1:00 p.m. New
York City time, on any day shall be deemed made on the following Business Day.
The Administrative Agent shall distribute such payments to the Swing Line Banks
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
(i) Anything in this Agreement to the contrary notwithstanding
(including, without limitation, in subsection 4.2), the obligation of each Bank
to make its Revolving Credit Loan (or purchase its participation or direct
interest in such Swing Line Loan, as the case may be) pursuant to this
subsection 2.19 is unconditional under any and all circumstances whatsoever and
shall not be subject to set-off, counterclaim or defense to payment that such
Bank may have or have had against the Company, the Administrative Agent, such
Swing Line Bank or any other Bank and, without limiting any of the foregoing,
shall be unconditional irrespective of (i) the occurrence of any Default, (ii)
the financial condition of the Company, any Affiliate, the Administrative Agent,
such Swing Line Bank or any other Bank or (iii) the termination or cancellation
of the Commitments. The Company agrees that any Bank so purchasing a
participation (or direct interest) in such Swing Line Loan may exercise all
rights of set-off, bankers' lien, counterclaim or similar rights with respect
to such participation as fully as if such Bank were a direct holder of a Swing
Line Loan in the amount of such participation
(j) Notwithstanding any of the provisions set forth herein, if any
Swing Line Bank is notified by the Administrative Agent that an Event of Default
has occurred and is continuing, such Swing Line Bank shall not be permitted to
make any Swing Line Loans hereunder.
2.20 Increase of Commitments. (a) At the request of the Company to
-----------------------
the Administrative Agent, the aggregate Commitments hereunder may be increased
42
after the Closing Date on one or more occasions by not more than $500,000,000
provided that (i) the aggregate of all such increases pursuant to this Section
--------
2.20 and pursuant to Section 2.20 of the 364-Day Credit Agreement may total no
more than $500,000,000, (ii) the sum of the aggregate Commitments hereunder and
the aggregate Commitments under and as defined in the 364 - Day Credit Agreement
shall not exceed $2,000,000,000, (iii) each such increase is in a minimum amount
of $50,000,000, (iv) each Bank whose Commitment is increased consents and (v)
the consent of the Administrative Agent is obtained.
(b) In the event that the Company and one or more of the Banks (or
other financial institutions which may elect to participate with the consent of
the Administrative Agent) shall agree, in accordance with Section 2.20(a), upon
such an increase in the aggregate Commitments, the Company, the Administrative
Agent and each financial institution in question shall enter into a Commitment
Increase Supplement (a form of which is attached hereto) setting forth the
amounts of the increase in Commitments and providing that the additional
financial institutions participating shall be deemed to be included as Banks
for all purposes of this Agreement. Upon the execution and delivery of such
Commitment Increase Supplement as provided above, and upon satisfaction of such
other conditions as the Administrative Agent may specify (including the delivery
of certificates and legal opinions on behalf of the Company relating to the
amendment and new Notes), this Agreement shall be deemed to be amended
accordingly.
(c) No Bank shall have any obligation to increase its Commitment in
the event of such a request by the Company hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the Loans
the Company hereby represents and warrants to the Administrative Agent and each
Bank as of the Closing Date and as of the date of each Loan that:
3.1 Financial Condition. The consolidated balance sheets of the
-------------------
Company and its Subsidiaries as at December 31, 1995 and December 31, 1996 and
the related consolidated statements of income, stockholder's equity and cash
flows for the fiscal year ended on each such date, reported on by Ernst & Young,
copies of which have heretofore been furnished to each Bank, are complete and
correct and present fairly the consolidated financial condition of the Company
and its Subsidiaries as at such dates, and the consolidated results of their
operations and their
43
consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as disclosed therein).
Neither the Company nor any of its Subsidiaries had, at the date of the most
recent balance sheet referred to above, any guarantee obligation, contingent
liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto and which, to the best of the
Company's knowledge, would have a Material Adverse Effect.
3.2 No Change. Except as disclosed in the Company's annual financial
---------
statements for its fiscal year ended December 31, 1996, during the period from
December 31, 1996 to and including the Closing Date, no change, or development
or event involving a prospective change, has occurred which has had or could
reasonably be expected to have a Material Adverse Effect; provided, however that
the foregoing representation is made solely as of the Closing Date.
3.3 Corporate Existence; Compliance with Law. Each of the Company
----------------------------------------
and its Significant Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, except to
the extent that, in the aggregate, the failure of any such Subsidiaries to be
duly organized, validly existing or in good standing would not have a Material
Adverse Effect, (b) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee and
to conduct the business in which it is currently engaged, except to the extent
that, in the aggregate, the failure of any such Subsidiaries to have any such
power, authority or legal right would not have a Material Adverse Effect, (c) is
duly qualified and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that, in the aggregate, the
failure of the Company and its Subsidiaries to so qualify or be in good standing
would not have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that, in the aggregate, the failure of
the Company and its Subsidiaries to comply therewith would not have a Material
Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The
-------------------------------------------------------
Company has the corporate power and authority, and the legal right, to make,
44
deliver and perform this Agreement and the Notes and to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the terms
and conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of this Agreement and the Notes. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Notes. This Agreement has been, and
each Note will be, duly executed and delivered on behalf of the Company. This
Agreement constitutes, and each Note when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the Notes, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligation of the
Company or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues which would have a Material Adverse Effect or a material adverse effect
on the validity or enforceability of this Agreement or any of the Notes or the
rights or remedies of the Administrative Agent or the Banks hereunder or
thereunder.
3.7 No Default. No Default or Event of Default has occurred
----------
and is continuing.
3.8 Taxes. Each of the Company and its Significant Subsidiaries has
-----
filed or caused to be filed all tax returns which, to the knowledge of the
Company, are required to be filed and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any of
its property and all material other taxes, fees or other charges imposed on it
or any of its property by
45
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its Subsidiaries, as the case may be); on the Closing
Date, no tax Lien has been filed, and, to the knowledge of the Company, no claim
is being asserted, with respect to any such tax, fee or other charge.
3.9 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect if such use would violate, or cause the Loans or the Commit-
ments to be in violation of, the provisions of the Regulations of such Board of
Governors. If requested by any Bank or the Administrative Agent at any time
(and in any case prior to or concurrently with the borrowing of any Loan the
proceeds of which will be used to purchase or carry margin stock), the Company
will furnish to the Administrative Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
3.10 ERISA. Except to the extent that all of the following, in the
-----
aggregate, would not have a Material Adverse Effect (it being understood that
the pension liabilities relating to the Western Union Pension Plan in an amount
not materially greater than as described in Schedule 3.10 hereto (other than any
material increase resulting from a decrease in the discount or mortality rate
assumptions contained in Schedule 3.10) would not, by itself, constitute a
Material Adverse Effect): (i) no Reportable Event has occurred during the five-
year period prior to the date on which this representation is made or deemed
made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code; (ii) the present
value of all accrued benefits under each Single Employer Plan maintained by the
Company or any Commonly Controlled Entity (based on those assumptions used to
fund the Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits; (iii) neither the
Company nor any Commonly Controlled Entity has or has had any liability or
obligation in respect of any Multiemployer Plan; and (iv) the present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Company and each Commonly Controlled
46
Entity for post retirement benefits, if any, to be provided to their current and
former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits, if any.
3.11 Investment Company Act; Other Regulations. Neither the Company
-----------------------------------------
nor any of its Subsidiaries is subject to registration as an "investment
company" or is "controlled" by such a company, within the meaning of the
Investment Company Act of 1940, as amended.
3.12 Purpose of Loans. The proceeds of the Loans shall be used by
----------------
the Company (a) to refinance the Existing Credit Agreements, (b) to provide
financing for the working capital needs of the Company, (c) to provide back-up
and liquidity for the commercial paper of the Company and (d) to provide funds
for general corporate purposes.
3.13 Disclosure. On the Closing Date, neither this Agreement, the
----------
Notes, nor the Information Materials, taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances in which they were made, not materially misleading.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The agreements of each Bank
---------------------------
contained herein are subject to the satisfaction of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, and (ii) for the account of each
Bank, a Note conforming to the requirements hereof and executed by a duly
authorized officer of the Company.
(b) Corporate Proceedings of the Company. The Administrative Agent
------------------------------------
shall have received, with a counterpart for each Bank, a copy of the resolu-
tions, in form and substance satisfactory to the Administrative Agent, of the
Board of Directors of the Company authorizing (i) the execution, delivery and
performance of this Agreement and the Notes and (ii) the borrowings contem-
47
plated hereunder, certified by the Secretary or an Assistant Secretary of the
Company as of the Closing Date, which certificate shall state that the resolu-
tions thereby certified have not been amended, modified, revoked or rescinded
and are in full force and effect and shall be in form and substance satisfactory
to the Administrative Agent.
(c) Corporate Documents. The Administrative Agent shall have
-------------------
received, with a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of the Company, certified as of the
Closing Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Company.
(d) No Violation. The consummation of the transactions contemplated
------------
hereby shall not contravene, violate or conflict with, nor involve the Adminis-
trative Agent or any Bank in any violation of, any Requirement of Law.
(e) Fees. The Administrative Agent shall have received the fees to
----
be received on the Closing Date referred to in subsection 2.4.
(f) Legal Opinion. The Administrative Agent shall have received,
-------------
with a counterpart for each Bank, the executed legal opinion of the general
counsel of the Company, substantially in the form of Exhibit C, and the Company
hereby instructs its general counsel to execute and deliver such opinion to the
Administrative Agent, with a counterpart for each Bank. Such legal opinion
shall cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(g) Existing Credit Agreements. The Administrative Agent shall have
--------------------------
received evidence satisfactory to it that the commitments under each of the
Existing Credit Agreements shall have been terminated, all amounts outstanding
thereunder have been repaid and any other amounts required to be paid to Chase
or the banks thereunder have been paid.
(h) Additional Documents. The Administrative Agent shall have
--------------------
received each additional document, instrument or item of information reasonably
requested by it, including, without limitation, a copy of any debt instrument,
security agreement or other material contract to which the Company may be a
party.
48
(i) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement shall be satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
4.2 Conditions to Each Loan. The agreement of each Bank to make any
-----------------------
Loan (other than the conversion or continuation of any Loan pursuant to
subsection 2.7) requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Company in this Agreement shall be true and correct in
all material respects on and as of such date as if made on and as of such date,
both before and after giving effect to the making of such Loans.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Borrowing Certificate. In the case of Revolving Credit Loans, the
---------------------
Administrative Agent shall have received, on or prior to the time required for
its receipt pursuant to subsection 2.3, a Borrowing Certificate with respect to
the Loans requested to be made on such date.
(d) Bid Loan Confirmation. With respect to any Bid Loan, a Bid Loan
---------------------
Confirmation shall have been delivered in accordance with subsection
2.18(b)(iv).
Each borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date of such Loan that the conditions
contained in subsection 4.2(a) and (b) have been satisfied.
49
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Bank or the Administrative Agent hereunder, the Company shall:
5.1 Financial Statements. Furnish to each Bank:
--------------------
(a) as soon as available, but in any event within 95 days after the
end of each fiscal year of the Company, a copy of the consolidated balance sheet
of the Company and its consolidated Subsidiaries as at the end of such year and
the related consolidated statements of income and retained earnings and of cash
flows for such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like qualifi-
cation or exception, or qualification arising out of the scope of the audit, by
Ernst & Young or other independent certified public accountants of nationally
recognized standing not unacceptable to the Majority Banks (it being understood
that (i) any of the accounting firms known as the "big six" accounting firms
shall not be unacceptable to the Banks and (ii) in furnishing to each Bank
copies of the Company's Annual Report on Form 10-K filed with the Securities and
Exchange Commission, the Company shall satisfy the requirements of this
subsection); and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal year
of the Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Company and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments). In furnishing to each Bank copies of the
Company's Quarterly Report on Form 10-Q filed with the Securities and Exchange
Commission, the Company shall satisfy the requirements of this subsection;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except
50
as approved by such accountants or officer, as the case may be, and disclosed
therein).
5.2 Certificates; Other Information. Furnish to each Bank:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of a Responsible
Officer stating that such Officer has obtained no knowledge of any Default or
Event of Default that has occurred and is continuing except as specified in such
certificate, and including calculations demonstrating compliance with subsection
6.1 hereof;
(c) within five days after the same are sent, copies of all regular
and periodic reports which the Company sends to its stockholders generally, and
within five days after the same are filed, copies of all regular and periodic
reports which the Company may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(d) promptly upon receipt thereof, copies of the executive summary
portion of any final auditor's letter or auditor's report submitted to the
Company's board of directors or any committee thereof relating to internal
financial controls of the Company or any Subsidiary; and
(e) promptly, such additional financial and other information as any
Bank may from time to time reasonably request.
5.3 Conduct of Business and Maintenance of Existence. Continue to
------------------------------------------------
engage in business of substantially the same general type as now conducted by
it, taken as a whole, and preserve, renew and keep in full force and effect its
corporate existence and take such reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to subsection 6.5; comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply
51
therewith would not, in the aggregate, have a material adverse effect on the
ability of the Company to perform its obligations under this Agreement or the
Notes.
5.4 Inspection of Property; Books, Records and Discussions. (a)
------------------------------------------------------
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities.
(b) Permit representatives of the Administrative Agent and the Banks
(other than Excluded Individuals of the Administrative Agent and the Banks)
which are not Competitors to visit and inspect at their own expense (unless a
Default or Event of Default has occurred and is continuing, in which case at the
Company's expense) any of its properties and examine and make abstracts from any
of its books and records at any reasonable time upon reasonable prior notice to
the Company and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Company and its Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants, provided
--------
that the Company and its Subsidiaries shall have no obligation to provide access
to information which is the subject of a confidentiality agreement between the
Company or any of its Subsidiaries, on the one hand, and a customer of the
Company or of any of its Subsidiaries, on the other hand. The Administrative
Agent shall endeavor to coordinate such visits by the Banks in order to minimize
inconvenience to the Company, and so long as no Event of Default shall be
continuing, such visits shall occur not more frequently than once per fiscal
quarter.
5.5 Notices. Promptly give notice to the Administrative Agent and each
-------
Bank of:
(a) the occurrence of any Default or Event of Default;
(b) the occurrence of a Change of Control;
(c) any litigation, investigation or proceeding which would have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the occur-
rence or expected occurrence of any Reportable Event with respect to any Plan,
52
the commencement of any obligation to contribute to any Multiemployer Plan by
the Company or any Commonly Controlled Entity, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or the
Company or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the terminating, Reorganization or Insolvency of, any
Plan; and
(e) the use of the proceeds of any Loans for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any other amount is owing to
any Bank or the Administrative Agent hereunder, the Company shall not:
6.1 Interest Coverage. Permit (for any period of four consecutive
-----------------
fiscal quarters) the ratio of (i) Consolidated Operating Income of the Company
and its Subsidiaries for such period to (ii) Interest Expense of the Company and
its Subsidiaries for such period, to be less than 2.5 to 1.
6.2 Limitation on Significant Subsidiary Indebtedness. Permit any of
-------------------------------------------------
its Significant Subsidiaries, directly or indirectly, to create, incur, assume
or suffer to exist any Indebtedness (which for purposes of this subsection 6.2
shall include, without duplication, Guarantee Obligations) unless immediately
thereafter the aggregate amount of all Indebtedness of Significant Subsidiaries
(excluding Indebtedness owed to the Company or a Significant Subsidiary,
including any renewal or replacement thereof) and the discounted present value
of all net rentals payable under leases covered by subsection 6.4 (and not
expressly excluded therefrom) would not exceed 15% of Consolidated Net Worth;
provided, however, that, solely, for the purposes of this covenant, Indebtedness
-------- -------
shall not include indebted-
53
ness incurred in connection with (x) overdraft or similar facilities
related to settlement, clearing and related activities by a Significant
Subsidiary in the ordinary course of business consistent with past
practice to the extent that such indebtedness remains outstanding for a period
not to exceed 72 hours or (y) Purchased Receivables Financings; and provided,
--------
further, that any Indebtedness of a Person (i) existing at the time such Person
-------
becomes a Significant Subsidiary or is merged with or into the Company or a
Significant Subsidiary or other entity or (ii) assumed by the Company or a
Subsidiary in connection with the acquisition of all or a portion of the
business of such Person, shall not be deemed to be Indebtedness created,
incurred, assumed or guaranteed by a Significant Subsidiary or otherwise deemed
to be Indebtedness of a Significant Subsidiary for the purposes of this
covenant.
6.3 Limitation on Liens. Directly or indirectly, create, incur,
-------------------
assume or suffer to exist, or permit any of its Significant Subsidiaries to
create, incur, assume or suffer to exist, any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, except for:
(a) any Lien on any property now owned or hereafter acquired or con-
structed by the Company or a Subsidiary, or on which property so owned, acquired
or constructed is located, which Lien (i) in the case of any property so
acquired, existed on such property at the time of acquisition thereby by the
Company or such Subsidiary or (ii) secures or provides for the payment of any
part of the purchase or construction price or cost of improvements of such
property and was created prior to, contemporaneously with or within 360 days
after, such purchase, construction or improvement (and any replacements or
refinancings for such Liens); provided, that (i) if a firm commitment from a
--------
bank, insurance company or other lender or investor (not including the Company,
a Subsidiary or an Affiliate of the Company) for the financing of the
acquisition or construction of property is made prior to, contemporaneously with
or within the 360-day period hereinabove referred to, the applicable Lien shall
be deemed to be permitted by this paragraph (a) whether or not created or
assumed within such period, and (ii) each such Lien is not spread to cover any
additional property and the amount of Indebtedness secured thereby is not
increased;
(b) Liens for taxes not yet delinquent or which are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves
54
with respect thereto are maintained on the books of the Company or its Subsid-
iaries, as the case may be, in conformity with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business;
(d) Liens of landlords or of mortgagees of landlords arising by
operation of law;
(e) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or other
insurance related obligations (including, without limitation, pledges or
deposits securing liability to insurance carriers under insurance or self-
insurance arrangements) and Liens on the proceeds of insurance policies created
in connection with any of the foregoing;
(f) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings which
have been duly initiated for the review of such judgment, decree or order, are
being diligently prosecuted and have not been finally terminated or the period
within which such proceedings may be initiated shall not have expired;
(g) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds, judgment and like bonds, replevin and similar
bonds and other obligations of a like nature incurred in the ordinary course of
business;
(h) zoning restrictions, easements, rights-of-way, restrictions on
the use of property, other similar encumbrances incurred in the ordinary course
of business and minor irregularities of title, which do not materially interfere
with the ordinary conduct of the business of the Company and its Subsidiaries
taken as a whole;
(i) Liens on Purchased Receivables and related assets granted in
connection with one or more Purchased Receivables Financings; and
(j) any Lien not otherwise permitted under this subsection 6.3,
provided that the aggregate amount of indebtedness secured by all such Liens,
--------
together with the aggregate sale price of property involved in sale and
leaseback trans-
55
actions not otherwise permitted under subsection 6.4, does not exceed the
greater of $100,000,000 or 10% of Consolidated Net Worth.
6.4 Limitation on Sales and Leasebacks. Sell or transfer, or permit
----------------------------------
any Subsidiary to sell or transfer, (except to the Company or one or more of its
wholly-owned Subsidiaries, or both) any Principal Facility owned by it on the
date of this Agreement with the intention of taking back a lease of such
property, other than in connection with the transactions described on Schedule
6.4 and other than a lease relating to computer hardware with lease terms of
four years or less, unless either:
(a) the sum of the aggregate sale price of property involved in sale
and leaseback transactions not otherwise permitted under this subsection plus
the aggregate amount of indebtedness secured by all mortgages, pledges, liens
and encumbrances not otherwise permitted except under subsection 6.3(j) does not
exceed the greater of $100,000,000 or 10% of Consolidated Net Worth; or
(b) the Company within 120 days after the sale or transfer shall have
been made by the Company or by any such Subsidiary applies an amount equal to
the greater of (i) the net proceeds of the sale of the Principal Facility sold
and leased back pursuant to such arrangement or (ii) the fair market value of
the Principal Facility sold and leased back at the time of entering into such
arrangement (which may be conclusively determined by the Board of Directors of
the Company) to the retirement of Funded Debt of the Company; provided, that the
--------
amount required to be applied to the retirement of Funded Debt of the Company
pursuant to this clause (b) shall be reduced by the principal amount of any
Funded Debt of the Company voluntarily retired by the Company within 120 days
after such sale, whether or not any such retirement of Funded Debt shall be
specified as being made pursuant to this clause (b). Notwithstanding the
foregoing, no retirement referred to in this clause (b) may be effected by
payment at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
6.5 Limitations on Fundamental Changes. (a) Directly or indirectly,
----------------------------------
sell, assign, lease, transfer or otherwise dispose of all or substantially all
of its assets or consolidate with or merge into any Person or permit any Person
to merge into it, provided that the Company may enter into a consolidation or
--------
merger with any Person if (i) the survivor formed by or resulting from such
consolidation or merger is the Company and (ii) at the time of such
consolidation or merger and immedi-
56
ately after giving effect thereto no Default or Event of Default shall have
occurred and be continuing;
(b) Permit FDR to, directly or indirectly, sell, assign, lease,
transfer or otherwise dispose of all or substantially all of its assets or
consolidate with or merge into any Person or permit any Person to merge into it,
provided that
--------
(i) FDR may enter into any such transaction with the Company or a
wholly-owned Subsidiary, and
(ii) FDR may enter into a merger or consolidation with any Person if
(A) the survivor formed by or resulting from such consolidation or merger is FDR
and (B) at the time of such consolidation or merger and immediately after giving
effect thereto no Default or Event of Default shall have occurred and be
continuing; or
(c) Cease to own, directly or indirectly through a wholly owned
Subsidiary, 100% of the Capital Stock of FDR.
6.6 Limitations on Restrictions on Dividends. Permit any Significant
----------------------------------------
Subsidiary exclusively organized under the laws of the United States of America
or any state thereof to enter into any arrangement with any Person which in any
way prohibits, limits the amount of or otherwise impairs the declaration or
distribution by such Subsidiary of dividends on its Capital Stock if such
arrangement, together with all other similar arrangements, could reasonably be
expected to have a Material Adverse Effect.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Note when due
in accordance with the terms thereof or hereof; or the Company shall fail to pay
any interest on any Note, or any other amount payable hereunder, within three
Business Days after any such interest or other amount becomes due in accordance
with the terms thereof or hereof; or
(b) Any representation or warranty made, or deemed made pursuant to
subsection 4.2, by the Company herein or which is contained in any certificate,
57
document or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made or furnished; or
(c) The Company shall default in the observance or performance of any
agreement contained in subsection 5.4(b), 5.5(a) or 5.5(b) or Section 6; or
(d) A Change of Control shall occur; or
(e) The Company shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in para-
graphs (a) through (d) of this Section), and such default shall continue
unremedied for a period of 30 days after the earlier of written notification to
the Company by the Administrative Agent or any Bank or after any Responsible
Officer becomes aware or, with reasonable diligence, would become aware of such
default; or
(f) The Company or any of its Significant Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness (other
than the Notes) or in the payment of any Guarantee Obligation, beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created, and
such default shall be continuing; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, and such default shall be
continuing, or any other event shall occur or condition exist and be continuing,
the effect of which default or other event or condition is to cause, such
Indebtedness to become due or required to be purchased, redeemed or otherwise
defeased prior to its stated maturity or such Guarantee Obligation to become
payable, provided that (i) any requirement to repurchase, and any repurchase of,
--------
any Indebtedness represented by the 10% Senior Subordinated Notes due 2003
issued by Card Establishment Services, Inc. arising by reason of a change of
control of Card Establishment Services, Inc. shall not constitute an Event of
Default hereunder and (ii) except with respect to the 364 Day Credit Agreement
dated as of the date hereof among the Company, the several banks and other
financial institutions parties thereto and Chase, as administrative agent
thereunder, the aggregate principal amount of any such Indebtedness and
Guarantee Obligations outstanding at such time, when aggregated with the
outstanding principal
58
amount of all other such Indebtedness and Guarantee Obligations in respect of
which the Company or any Significant Subsidiary shall have so defaulted or an
event shall have occurred or a condition exists as described above, aggregates
$25,000,000 or more; or
(g) (i) The Company or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or the
Company or any of its Significant Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the
Company or any of its Significant Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Company or any
of its Significant Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Company or any of its
Significant Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
59
proceedings or appointment of a trustee is, in the reasonable opinion of the
Majority Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Company or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Majority Banks is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or Reorga-
nization of, a Multiemployer Plan or (vi) any other event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, would have a material adverse effect on the ability of the
Company to perform its obligations under this Agreement or the Notes (it being
understood that the existence of certain pension liabilities under the Western
Union Pension Plan in an amount not materially greater than as described in
Schedule 3.10 hereto (other than any material increase resulting from a de-
crease in the discount or mortality rate assumptions contained in Schedule 3.10)
would not, by itself, constitute a material adverse effect on the ability of the
Company to perform its obligations under this Agreement or the Notes); or
(i) The rendering against the Company or any Significant Subsidiary
of one or more final nonappealable judgments, decrees or orders for the payment
of money which, either singly or in the aggregate with all other monies in
respect of which a final nonappealable judgment, decree or order for payment
shall have been rendered against the Company or any Significant Subsidiary,
aggregates $25,000,000 or more, and the continuance of such judgments, decrees
or orders unsatisfied and in effect for any period of 30 consecutive days or, in
the case of a foreign judgment, decree or order the enforcement of which is not
being sought in the United States, 60 consecutive days without a stay of
execution;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Company,
automatically the Commitments and Swing Line Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Banks, the Administrative Agent may, or upon the request of the Majority Banks,
the Administrative Agent shall, by notice to the Company declare the Commitments
and Swing Line Commitments to be terminated forthwith, whereupon the Commitments
and Swing
60
Line Commitments shall immediately terminate; and (ii) with the consent of the
Majority Banks, the Administrative Agent may, or upon the request of the Major-
ity Banks, the Administrative Agent shall, by notice of default to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints Chase as the Administrative Agent of such Bank under this Agreement and
the Notes and each Bank irrevocably authorizes Chase, as the Administrative
Agent for such Bank, to take such action on its behalf under the provisions of
this Agreement and the Notes and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of this
Agreement and the Notes, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the Notes or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the Notes by or through agents or attor-
neys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys in-fact selected by
it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any
----------------------
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or the Notes (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warran-
61
ties made by the Company or any officer thereof contained in this Agreement or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement (except for the Administrative
Agent's due execution and delivery) or the Notes or for any failure of the
Company to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Bank to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or the Notes or to inspect the properties, books
or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative Agent shall
--------------------------------
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or the Notes unless
it shall first receive such advice or concurrence of the Majority Banks as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes in accordance with a request of the
Majority Banks, and such request and any action taken or failure to act pursu-
ant thereto shall be binding upon all the Banks and all future holders of the
Notes.
8.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Banks. The Administrative Agent shall take
such action with
62
respect to such Default or Event of Default as shall be reasonably directed by
the Majority Banks; provided that unless and until the Administrative Agent
--------
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
8.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank
----------------------------------------------------
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereafter taken, including any review of the affairs of the Company, shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any Bank. Each Bank represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Administrative Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the Notes, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise) or creditworthiness of the Company
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Administrative
---------------
Agent in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
the respective amounts of their Commitments (or, if the Commitments have been
terminated, ratably according to the respective amount of their Commitments as
of the date of such termination) from and against any and all liabilities,
obligations,
63
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, the Notes or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Bank shall be liable for
--------
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Notes and all
other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
-----------------------------------------------
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to its Loans made or renewed by it and any Note issued to it, the Administrative
Agent shall have the same rights and powers under this Agreement as any Bank or
any Swing Line Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks", "Swing Line Bank" and
"Swing Line Banks" shall include the Administrative Agent in its individual
capacity.
8.9 Successor Administrative Agent. The Administrative Agent may
------------------------------
resign as Administrative Agent upon 10 days' notice to the Banks and the Com-
pany, such resignation to become effective upon the appointment of a successor
Administrative Agent as provided below. If the Administrative Agent shall
resign as Administrative Agent under this Agreement, then the Majority Banks
shall appoint from among the Banks a successor agent for the Banks, which
successor agent shall be approved by the Company if no Default or Event of
Default has occurred and is continuing (such approval not to be unreasonably
withheld), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor agent effective upon its appointment, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Administrative Agent's resignation as
Administrative Agent, the
64
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. None of this Agreement, any Note or any
----------------------
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Majority Banks, the Administrative Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto and to
the Notes for the purpose of changing any provisions of or adding any provisions
to this Agreement or the Notes or changing in any manner the rights of the Banks
or of the Company hereunder or thereunder or waiving, on such terms and condi-
tions as the Administrative Agent may specify in such instrument, any of the
requirements of this Agreement or the Notes or any Default or Event of Default
and its consequences; provided, however, that (i) each Bank shall receive a form
-------- -------
of any such waiver, amendment, supplement or modification prior to the execution
thereof by the Majority Banks and (ii) no such waiver and no such amendment,
supplement or modification shall (a) reduce the amount or extend the Commitment
of any Bank, the maturity of any Note or any installment thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce the amount or
extend the time of payment of any fee payable to any Bank hereunder, or change
the amount of any Bank's Commitment or any Swing Line Bank's Swing Line
Commitment, in each case without the consent of the Bank or the Swing Line Bank,
as the case may be, affected thereby, or (b) amend, modify or waive any
provision of this subsection or reduce the percentage specified in the
definition of Majority Banks, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement, or waive the
conditions precedent to the making of any Loan set forth in subsection 4.2, in
each case without the written consent of all the Banks, or (c) amend, modify or
waive any provision of Section 8 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Banks, the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the Company, the Banks and the Administrative
Agent shall be restored to their former position and rights hereunder and under
the outstanding Notes, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or
65
impair any right consequent thereon, or (d) amend, modify or waive any provision
of subsection 2.19 without the written consent of each Swing Line Bank.
9.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy,) and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and the Administrative
Agent, and as set forth in Schedule 1.1 in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Company: First Data Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
with a copy of
any notice to
the Company to: First Data Corporation
0000 Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel's Office
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
The Administrative
Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx, V.P.
or Xxxxxxx Xxxxxx,
Credit Administration Officer
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
66
with a copy of
any notice to
the Administrative
Agent to: The Chase Manhattan Bank
Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Account Manager
Telecopy: (000) 000-0000
Confirmation Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Banks pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.18 or 2.19 shall not
be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
-----------------------------
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each Bank and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Notes
and any such
67
other documents, including, without limitation, fees and disbursements of
counsel to the Administrative Agent and to the several Banks, (c) to pay, and
indemnify and hold harmless each Bank and the Administrative Agent from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes and any such other
documents, and (d) to pay, and indemnify and hold harmless each Bank and the
Administrative Agent from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the Notes, and any such other documents (all the foregoing,
collectively, the "indemnified liabilities"), provided, that the Company shall
--------
have no obligation hereunder to the Administrative Agent or any Bank with
respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Administrative Agent or such Bank, (ii) legal
proceedings commenced or claims against the Administrative Agent or such Bank by
any security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such, or
(iii) legal proceedings commenced or claims against the Administrative Agent or
such Bank by any other Bank or by any Transferee (as defined in subsection 9.6).
The agreements in this subsection shall survive repayment of the Notes and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks. (a)
--------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time with the consent of
the Administrative Agent (which shall not be unreasonably withheld) sell to one
or more banks or other entities which are not Competitors ("Participants")
------------
participating interests in any Loan owing to such Bank, any Note held by such
Bank, the Commitment of such Bank or any other interest of such Bank hereunder,
provided
--------
68
that with respect to any such sale of a participating interest, the Bank selling
such participating interest must retain the right to make all determinations
under this Agreement other than requests for (i) reductions in the principal
amount of the Loans, (ii) reductions in the interest rates payable on the Loans,
(iii) reductions in the facility fee payable to such selling Bank pursuant to
subsection 2.4 and (iv) waivers and extensions in respect of payment dates on
account of principal of the Loans, Interest Payment Dates and the dates on which
such facility fee is payable. In the event of any such sale by a Bank of
participating interests to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Bank shall remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under this Agreement,
and the Company and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. The Company agrees that if amounts outstanding under this
Agreement and the Notes are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Bank under this Agreement or any Note, provided that such Participant
--------
shall only be entitled to such right of setoff if it shall have agreed in the
agreement pursuant to which it shall have acquired its participating interest to
share with the Banks the proceeds thereof as provided in subsection 9.7. The
Company also agrees that each Participant shall be entitled to the benefits of
subsections 2.14, 2.15 and 2.16 with respect to its participation in the Commit-
ments and the Loans outstanding from time to time; provided that no Participant
--------
shall be entitled to receive any greater amount pursuant to such subsections
than the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any Bank or
any affiliate thereof (but only if such affiliate's Short-Term Ratings equal or
exceed the Short-Term Ratings of such selling Bank) and, with the consent of the
Company and the Administrative Agent (which in each case shall not be
unreasonably withheld), to one or more additional banks or financial
institutions ("Purchasing Banks") all or any part of its rights and obligations
----------------
under this Agreement and its Note pursuant to a Commitment Transfer Supplement,
substantially in the form of
69
Exhibit D (a "Commitment Transfer Supplement"), executed by such Purchasing
------------------------------
Bank, such transferor Bank (and, in the case of a Purchasing Bank that is not
then a Bank or an affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided that (i) in connection with such sale, such
--------
transferor Bank must transfer all of its outstanding Commitment to such
Purchasing Bank or (ii) after giving effect to such sale the outstanding
Commitment of such transferor Bank must equal or exceed $10,000,000, provided,
--------
further, with respect to a Purchasing Bank which was not a Bank or an affiliate
-------
of a Bank prior to such sale, the outstanding Commitment of such Purchasing Bank
after giving effect to such sale must equal or exceed $10,000,000. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date determined pursuant to (and as defined in) such Commitment
Transfer Supplement, (x) the Purchasing Bank thereunder shall be a party hereto
and, to the extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Bank hereunder with a Commitment as set forth
therein, and (y) the transferor Bank thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its obligations under this
Agreement (and, in the case of a Commitment Transfer Supplement covering all or
the remaining portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party hereto, provided, that
--------
it is expressly understood and agreed that such transferor Bank shall retain all
of such transferor Bank's rights under subsections 2.14, 2.15 and 2.16 of this
Agreement with respect to any cost, reduction or payment incurred or made prior
to the Transfer Effective Date determined pursuant to such Commitment Transfer
Supplement, including, without limitation the rights to indemnification and to
reimbursement for taxes, costs and expenses). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of Commitments and Commitment Percentages arising from the
purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. On or
prior to the Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, the Company, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the surrendered Note a new Note to
the order of such Purchasing Bank in an amount equal to the Commitment assumed
by it pursuant to such Commitment Transfer Supplement and, if the transferor
Bank has retained a Commitment hereunder, a new Note to the order of the
transferor Bank in an amount equal to the Commitment retained by it hereunder.
Such new Notes shall be dated the Closing Date and shall otherwise be in the
form
70
of the Notes replaced thereby. The Note surrendered by the transferor Bank
shall be returned by the Administrative Agent to the Company marked "cancelled".
(d) The Administrative Agent shall maintain at its address referred
to in subsection 9.2 a copy of each Commitment Transfer Supplement delivered to
it and a register (the "Register") for the recordation of the names and
--------
addresses of the Banks and the Commitment of, and principal amount of the Loans
owing to, each Bank from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as the owner of each Loan recorded therein for all purposes of
this Agreement. The Register shall be available for inspection by the Company
or any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the
Administrative Agent) together with payment to the Administrative Agent, in the
case of a Purchasing Bank that is not then a Bank or an affiliate thereof, of a
registration and processing fee of $2,000 by the transferor Bank, the
Administrative Agent shall (i) promptly accept such Commitment Transfer
Supplement and (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and the Company.
(f) Subject to subsection 9.8, the Company authorizes each Bank to
disclose to any Participant or Purchasing Bank (each, a "Transferee") and any
----------
prospective Transferee any and all financial information in such Bank's
possession concerning the Company and its affiliates which has been delivered to
such Bank by or on behalf of the Company pursuant to this Agreement or which has
been delivered to such Bank by or on behalf of the Company in connection with
such Bank's credit evaluation of the Company and its affiliates prior to
becoming a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this Agreement
or any Note is transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any state thereof, the
transferor Bank shall require such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the
71
Administrative Agent and the Company) that under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent, the Company
or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank (and,
in the case of any Purchasing Bank registered in the Register, the
Administrative Agent and the Company) either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Administrative Agent and the Company) to provide the
transferor Bank (and, in the case of any Purchasing Bank registered in the
Register, the Administrative Agent and the Company) a new Form 4224 or Form 1001
upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(h) Nothing herein shall prohibit any Bank or any Swing Line Bank
from pledging or assigning any Note to any Federal Reserve Bank in accordance
with applicable law.
(i) No Swing Line Bank may (except as provided in subsections 2.19
and 9.6(h)) assign or sell participations in all or any part of its Swing Line
Loans, its Swing Line Note or its Swing Line Commitment.
9.7 Adjustments; Set-off. (a) If any Bank (a "benefitted Bank")
-------------------- ---------------
shall at any time receive any payment of all or part of its Loans then payable,
or interest then payable thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Bank, if any, in respect of such other Bank's Loans then payable, or interest
then payable thereon, such benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's Loans or such interest
thereon, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
-------- -------
portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
72
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's Loans or
interest thereon may exercise all rights of payment (including, without limita-
tion, rights of set-off) with respect to such portion as fully as if such Bank
were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by
law, each Bank shall have the right, without prior notice to the Company, any
such notice being expressly waived by the Company to the extent permitted by
applicable law, upon any amount becoming due and payable by the Company
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of the Company. Each Bank agrees
promptly to notify the Company and the Administrative Agent after any such set-
off and application made by such Bank, provided that the failure to give such
--------
notice shall not affect the validity of such set-off and application.
9.8 Confidentiality. Each of the Banks and the Administrative Agent
---------------
agrees to keep confidential (and to cause its officers, directors, employees,
agents and representatives, and its Affiliates' officers, directors, employees,
agents and representatives who gain access to Confidential Information (as
defined below), to keep confidential) any information which is or has been
obtained pursuant to the terms of this Agreement (including, without limitation,
subsection 5.4(b)) (collectively, the "Confidential Materials"), except that
----------------------
such Bank or the Administrative Agent, as the case may be, shall be permitted to
disclose the Confidential Materials (a) to such of the officers, directors,
employees, agents, independent auditors and representatives of the Bank or any
of its Affiliates as need to know such Confidential Materials in connection
with its administration of its Commitment and Loans (provided such persons are
informed of the confidential nature of the Confidential Materials and the
restrictions imposed by this subsection), (b) to the extent required by law
(including, without limitation disclosure to bank examiners and regulatory
officials) or legal process (in which event such Bank or the Administrative
Agent, as the case may be, will promptly notify the Company of any such
requirement), (c) to the extent such Confidential Materials become publicly
available other than as a result of a breach of the provisions of this
subsection,
73
(d) to the extent the Company shall have consented to such disclosure in
writing, (e) to a prospective Transferee which agrees in writing to be bound by
the terms of this subsection as if it were a Bank party to this Agreement, and
(f) to a Governmental Agency in connection with litigation involving this
Agreement or the Notes; provided that in no event shall any such Bank or the
--------
Administrative Agent disclose any of the Confidential Materials to any of its
Excluded Individuals.
9.9 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
9.10 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.11 Integration. This Agreement represents the entire agreement of
-----------
the Company, the Administrative Agent and the Banks with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Bank relative to subject matter
hereof not expressly set forth or referred to herein or in the Notes.
9.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
9.13 Submission To Jurisdiction; Waivers. The Company hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the Notes, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the
74
Courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Company at its
address set forth in subsection 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
9.14 Acknowledgements. The Company hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Bank has any fiduciary
relationship to the Company, and the relationship between the Administrative
Agent and the Banks, on the one hand, and the Company, on the other hand, is
solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company and
the Banks.
9.15 WAIVERS OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE AGENT
---------------------
AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL
75
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY
COUNTERCLAIM THEREIN.
76
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
FIRST DATA CORPORATION
By /s/ Xxx Xxxxxx
----------------------------------------
Title: Executive Vice President and
Chief Financial Officer
77
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Bank
By /s/ Xxxxxx Xxxxxx
----------------------------------------
Title: Vice President
A-B-N AMRO BANK N.V.
By /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
--------------------------------------------------
Title: Vice President Group Vice
President
BANK OF MONTREAL
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Director
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Senior Relationship Manager
78
THE BANK OF TOKYO-MITSUBISHI, LTD.,
ATLANTA AGENCY
By /s/ G. England
----------------------------------------
Title: Vice President & Manager
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Title: Senior Vice President
BANKERS TRUST COMPANY OF NEW YORK
By /s/ Xxxxxxx XxXxxxxx
------------------------------------
Title: Vice President
CITIBANK, N.A.
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: First Vice President & Manager
79
CREDIT SUISSE FIRST BOSTON
By /s/ Xxxxxx Xxxxxx /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------------
Title: Managing Director Associate
THE DAI-ICHI KANGYO BANK
By /s/ Xxxxxxx X. Pride
------------------------------------
Title: Senior Vice President
FLEET BANK
By /s/ Xxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
FIRST HAWAIIAN BANK
By /s/ Xxxxx Xxxxx
---------------------------------------
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Title: Assistant Vice President
80
MELLON BANK, N.A.
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Assistant Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxxx Xxxxx
--------------------------------------
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ D. E. Jackson
----------------------------------------
Title: Vice President
00
XXXXX XXXX XX XXXXXX
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: Senior Manager
THE SUMITOMO BANK
By /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Title: Joint General Manager
THE SUNTRUST BANK, ATLANTA
By /s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Title: Vice President AVP
SANWA BANK
By /s/ Xxxxxx X. Xxx
----------------------------------------
Title: Vice President & Area Manager
THE SAKURA BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Title: Vice President & Senior Manager
00
XXXXXXXX XXXX XX XXXXXXX, N.A.
By /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxxx XxXxxxxxx
------------------------------------
Title: Senior Vice President
WESTPAC BANKING CORPORATION
NEW YORK BRANCH
By /s/ Xxxx Xxxxxxx
----------------------------------
Title: Assistant Vice President
83
