CREDIT AGREEMENT
Dated as of December 12, 0000,
Xxxxx
XXXXXXXX XXXXXXXXXXX,
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
THE FINANCIAL INSTITUTIONS PARTIES HERETO
Arranged By
BA SECURITIES, INC.
With
THE BANK OF NEW YORK
and
FIRST BANK NATIONAL ASSOCIATION,
as Lead Managers
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS................................................1
1.01 Defined Terms.........................................1
1.02 Other Interpretive Provisions........................19
(a) Defined Terms...................................19
(b) The Agreement...................................19
1.03 Accounting Principles................................20
ARTICLE II
THE CREDITS...............................................20
2.01 Amount and Terms of Commitments......................20
(a) The Committed Loans ............................20
(b) The Letters of Credit...........................20
(c) Participation; Old Letters of Credit............21
2.02 Loan Accounts........................................21
2.03 Procedure for Committed Borrowings...................21
2.04 Letter of Credit Requests............................22
2.05 Extension of Letters of Credit.......................23
2.06 Conversion and Continuation Elections for Committed
Borrowings...........................................23
2.07 Bid Borrowings.......................................24
2.08 Procedure for Bid Borrowings.........................25
2.09 Voluntary Termination or Reduction of Commitments....28
2.10 Optional Prepayments................................ 28
2.11 Repayment............................................29
2.12 Repayment of Letter of Credit Drawings...............29
2.13 Default in Reimbursement of Issuing Bank.............30
2.14 Interest.............................................31
2.15 Fees.................................................31
(a) Fees Payable to BofA and the Agent...............31
(b) Commitment Fees..................................32
(c) Letter of Credit Fees............................32
(d) Fees under the Existing Company Credit Agreement.33
2.16 Computation of Fees and Interest.....................33
2.17 Payments by the Company..............................33
2.18 Payments by the Banks to the Agent...................34
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2.19 Sharing of Payments, Etc.............................34
2.20 Pro Rata Treatment. ................................35
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY....................35
3.01 Taxes................................................35
3.02 Illegality...........................................37
3.03 Increased Costs and Reduction of Return..............38
3.04 Funding Losses.......................................38
3.05 Inability to Determine Rates.........................39
3.06 Substitution of Banks................................39
3.07 Survival.............................................40
ARTICLE IV
CONDITIONS PRECEDENT......................................40
4.01 Conditions to Effectiveness and Initial Advances of
Loans and Issuances of Letters of Credit up to an
Aggregate Exposure of $75 Million....................40
(a) Credit Agreement................................40
(b) Resolutions; Incumbency.........................40
(c) Organization Documents; Good Standing...........40
(d) Legal Opinion...................................41
(e) Certificate.....................................41
(f) Payment of Fees and Expenses....................41
(g) Subsidiary Guaranty.............................41
(h) Merger..........................................41
(i) Existing Indebtedness...........................42
(j) Pro Forma Financial Statements..................42
(k) Indebtedness....................................42
(l) Approvals and Consents..........................42
(m) Compliance Certificate..........................42
(n) Other Documents................................ 42
.
4.02 Conditions to Advances of Loans and Issuances of
Letters of Credit in
Excess of $75 Million of Aggregate Exposure..........42
(a) After Comdata Debt Retired......................43
(b) Before Comdata Debt Retired.....................43
(i) Debt Tender Offer..........................43
(ii) Approvals and Consents.....................43
(iii)Legal Opinion..............................44
(iv) Non-Tendered Senior Notes and Senior
Subordinated Debentures....................44
(v) Junior Subordinated Notes..................44
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4.03 Conditions to All Credit Extensions..................44
(a) Notice of Borrowing or Continuation/Conversion..44
(b) Notice of Acceptance............................44
(c) Letter of Credit Request........................45
(d) Continuation of Representations and Warranties..45
(e) No Existing Default.............................45
ARTICLE V
REPRESENTATIONS AND WARRANTIES............................45
5.01 Corporate Existence and Power........................45
5.02 Corporate Authorization; No Contravention............46
5.03 Governmental Authorization...........................46
5.04 Binding Effect.......................................46
5.05 Litigation...........................................47
5.06 No Default...........................................47
5.07 ERISA Compliance.....................................47
5.08 Title to Properties..................................48
5.09 Taxes................................................48
5.10 Financial Condition..................................48
5.11 Environmental Matters................................49
5.12 Regulated Entities...................................49
5.13 No Burdensome Restrictions...........................50
5.14 Solvency.............................................50
5.15 Labor Relations......................................50
5.16 Copyrights, Patents, Trademarks and Licenses, etc....50
5.17 Material Subsidiaries and Equity Investments.........50
5.18 Insurance............................................50
5.20 Full Disclosure......................................51
ARTICLE VI
AFFIRMATIVE COVENANTS.....................................51
6.01 Financial Statements.................................51
6.02 Certificates; Other Information......................51
6.03 Notices..............................................52
6.04 Preservation of Corporate Existence, Etc.............53
6.05 Maintenance of Property..............................54
6.06 Insurance............................................54
6.07 Payment of Obligations...............................54
6.08 Compliance with Laws.................................54
6.09 Inspection of Property and Books and Records.........55
6.10 Environmental Laws...................................55
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6.11 Use of Proceeds......................................55
6.12 Additional Guarantors................................55
6.13 Further Assurances...................................56
ARTICLE VII
NEGATIVE COVENANTS........................................56
7.01 Limitation on Liens..................................56
7.02 Mergers, Consolidations and Dispositions of Assets...57
7.03 Cash Investments; Minority Investments...............59
7.04 Indebtedness.........................................59
7.05 Contingent Obligations...............................59
7.06 Use of Proceeds......................................59
7.07 Hostile Acquisitions.................................59
7.08 Lease Obligations....................................60
7.09 Consolidated Net Worth...............................60
7.10 Fixed Charge Coverage Ratio..........................60
7.11 Leverage Ratio.......................................60
7.12 Change in Business...................................60
7.13 Accounting Changes...................................60
7.14 Contracts of Subsidiaries............................60
ARTICLE VIII
EVENTS OF DEFAULT.........................................61
8.01 Event of Default.....................................61
(a) Non-Payment.....................................61
(b) Representation or Warranty......................61
(c) Specific Defaults...............................61
(d) Other Defaults..................................61
(e) Cross-Default...................................61
(f) Insolvency; Voluntary Proceedings...............61
(g) Involuntary Proceedings.........................62
(h) ERISA...........................................62
(i) Monetary Judgments..............................62
(j) Ownership.......................................62
(k) Subsidiary Guaranty.............................63
8.02 Remedies.............................................63
8.03 Rights Not Exclusive.................................63
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ARTICLE IX
THE AGENT.................................................63
9.01 Appointment and Authorization........................63
9.02 Delegation of Duties.................................64
9.03 Liability of Agent...................................64
9.04 Reliance by Agent....................................64
9.05 Notice of Default....................................65
9.06 Credit Decision......................................65
9.07 Indemnification......................................66
9.08 Agent in Individual Capacity.........................66
9.09 Successor Agent......................................67
ARTICLE X
MISCELLANEOUS.............................................67
10.01 Amendments and Waivers..............................67
10.02 Notices.............................................68
10.03 No Waiver; Cumulative Remedies......................68
10.04 Costs and Expenses..................................68
10.05 Indemnity...........................................69
(a) General Indemnity...............................69
(b) Survival; Defense...............................69
10.06 Marshalling; Payments Set Aside.....................70
10.07 Successors and Assigns..............................70
10.08 Assignments, Participations, etc....................70
10.09 Set-off.............................................72
10.10 Automatic Debits of Fees............................72
10.11 Notification of Addresses, Lending Offices, Etc.....72
10.12 Counterparts........................................72
10.13 Severability........................................73
10.14 No Third Parties Benefited..........................73
10.15 Time................................................73
10.16 GOVERNING LAW AND JURISDICTION......................73
10.17 WAIVER OF JURY TRIAL................................73
10.18 Entire Agreement....................................74
10.19 Interpretation......................................74
10.20 Term of Agreement...................................74
10.21 Foreign Currency Conversion.........................74
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SCHEDULES
Schedule 1.01 Old Letters of Credit
Schedule 2.01 Bank Commitments
Schedule 4.01 Indebtedness
Schedule 5.05 Litigation
Schedule 5.07 ERISA Disclosures
Schedule 5.10 Contingent Obligations and Partnerships
Schedule 5.11 Environmental Matters
Schedule 5.17 Subsidiaries and Material Subsidiaries
Schedule 5.17(A) Minority Investments
Schedule 7.02 Assets Permitted to be Disposed of as of the
Closing Date
EXHIBITS
Exhibit A Compliance Certificate
Exhibit B Assignment Agreement
Exhibit C Invitation for Competitive Bids
Exhibit D Letter of Credit Application
Exhibit E Notice of Borrowing
Exhibit F Notice of Conversion/Continuation
Exhibit G Subsidiary Guaranty
Exhibit H Competitive Bid Request
Exhibit I Competitive Bid
Exhibit J-1 Opinion of Counsel to Company
Exhibit J-2 Opinion of Counsel to Company
Exhibit K Bid Loan Note
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 12,
1995 by and among Ceridian Corporation, a Delaware corporation
(the "Company"), the several financial institutions from time to
time parties to this Agreement (collectively, the "Banks";
individually, a "Bank") and Bank of America National Trust and
Savings Association, as Agent for the Banks.
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the Company, the Banks
and the Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
I.1 Defined Terms. In addition to the terms defined
elsewhere in this Agreement, the following terms have the
following meanings:
"Absolute Rate" has the meaning specified in
subsection 2.08(c).
"Absolute Rate Auction" means a solicitation of
Competitive Bids setting forth Absolute Rates pursuant to Section
2.08.
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute
Rate.
"Acquisition Corp." means Convoy Acquisition Corp., a
Delaware corporation.
"Affected Bank" has the meaning specified in
Section 3.06.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person shall
be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership
interests, by contract or otherwise. Without limitation, any
director, executive officer or beneficial owner of 15% or more of
the voting equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person.
"Agent" means BofA in its capacity as agent for the
Banks hereunder, and any successor agent appointed pursuant to
Section 9.09..
"Agent-Related Persons" means BofA and any successor
agent arising under Section 9.09, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Agent's Payment Office" means the address for
payments set forth on the signature page hereto in relation to
the Agent or such other address as the Agent may from time to
time specify in accordance with Section 10.02.
"Aggregate Commitment" means the combined Commitments
of the Banks, in the initial amount of Three Hundred Twenty-Five
Million Dollars ($325,000,000), as such amount may be reduced
from time to time pursuant to this Agreement.
"Aggregate Exposure" means at any time, the sum of (a)
the aggregate principal amount of outstanding Committed Loans and
Bid Loans, plus (b) the aggregate undrawn face amount of all
outstanding Letters of Credit, plus (c) the aggregate amount of
drawings made under Letters of Credit for which the applicable
Issuing Bank has not yet been reimbursed.
"Agreement" means this Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Applicable Commitment Fee Percentage," "Applicable
Financial L/C Percentage," "Applicable Margin" and "Applicable
Performance L/C Percentage" mean the percentages (the "Applicable
Percentages") specified in the table below after applying the
rules of application which immediately follow the table:
Company's Actual or Implied Senior
Unsecured Long-Term Debt
Rating (S&P/Xxxxx'x):
Applicable Xxxxx X Xxxxx Xxxxx Xxxxx Xxxxx X
Percentages: BBB- II III IV B+/B1
/Baa3 BB+/Ba1 BB/Ba2 BB- and
and /Ba3 Below
Above
Applicable 0.175% 0.225% 0.25% 0.275% 0.35%
Commitment Fee
Percentage
Applicable 0.475% 0.65% 0.80% 1.0% 1.375%
Financial L/C
Percentage
Applicable Margin:
Base Rate 0% 0% 0% 0% 0.375%
Committed Loans
Applicable Margin: 0.475% 0.65% 0.80% 1.0% 1.375%
Offshore Rate
Committed Loans
Applicable 0.2375% 0.325% 0.40% 0.50% 0.6875%
Performance L/C
Percentage
where the following rules of application shall apply:
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(a) the Company's senior unsecured long-term debt
rating as in effect on the last business day of any calendar
month shall be used to determine the Applicable Percentages
for the immediately succeeding calendar month;
(b) if at any time S&P and Xxxxx'x assign different
senior unsecured long-term debt ratings to the Company, the
Applicable Percentages shall be determined based on the
higher of such ratings if the lower of such ratings is not
more than two ratings levels lower than the higher, and
shall be determined based on the lower of such ratings if
the lower of such ratings is more than two ratings levels
lower than the higher;
(c) if at any time only one Rating Agency assigns a
senior unsecured long-term debt rating to the Company, that
rating shall be used to determine the Applicable
Percentages;
(d) if at any time neither Rating Agency assigns a
senior unsecured long-term debt rating to the Company, but
either or both Rating Agencies rate the Company's preferred
stock, then the Applicable Percentages shall be determined
utilizing such preferred stock rating(s) in accordance with
the foregoing table and rules of applicability except that
each ratings level specified in the table for senior
unsecured long-term debt shall be adjusted two ratings
levels lower for application to the Company's preferred
stock;
(e) if at any time neither Rating Agency assigns a
senior unsecured long-term debt rating to the Company and
neither Rating Agency rates the Company's preferred stock,
then the Applicable Percentages shall be determined
utilizing Level V in the table above; and
(f) as of the Closing Date, the Applicable Percentages
shall be determined utilizing Level II until adjusted as
provided herein.
"Arranger" means BA Securities, Inc.
"Assignee" is defined in subsection 10.08(a).
"Attorney Costs" means and includes all fees and
disbursements of any law firm or other external counsel, the non-
duplicative allocated cost of internal legal services and all
disbursements of internal counsel.
"BAI" means Bank of America Illinois, an Illinois
chartered bank.
"Bank" (a) has the meaning specified in the
introductory clause hereto and (b) also includes any financial
institution becoming a party hereto by execution of an assignment
and acceptance agreement in accordance with Section 10.08.
"Bank Affiliate" means a Person engaged primarily in
the business of commercial banking and that is a Subsidiary of a
Bank or of a Person of which a Bank is a Subsidiary.
"Bankruptcy Code" means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. S 101, et seq.).
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"Base Rate" means the higher of:
(a) the rate of interest publicly announced from time
to time by BofA in San Francisco, California, as its
"reference rate." It is a rate set by BofA based upon
various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate; and
(b) 0.50% per annum above the latest Federal Funds
Rate.
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that
bears interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting
of one or more Bid Loans made to the Company on the same day by
one or more Banks.
"Bid Loan" means a Loan by a Bank to the Company under
Section 2.07, which may be an IBOR Bid Loan or an Absolute Rate
Bid Loan.
"Bid Loan Lender" means, in respect of any Bid Loan,
the Bank making such Bid Loan to the Company.
"Bid Loan Note" has the meaning specified in Section
2.02.
"BofA" means Bank of America National Trust and
Savings Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of
Loans of the same Type and, other than in the case of Base Rate
Committed Loans, having the same Interest Period made to the
Company on the same day by the Banks under Article II, and may be
a Committed Borrowing or a Bid Borrowing.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.03 or 2.08, or any date on which a Letter
of Credit is issued under Section 2.04.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in Chicago, New
York City or San Francisco are authorized or required by law to
close and, if the applicable Business Day relates to any Offshore
Rate Loan, means such a day on which dealings are carried on in
the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not
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having the force of law, in each case, regarding capital adequacy
of any bank or of any corporation controlling a bank.
"Capital Expenditures" means, for any period, the
aggregate of all capitalized software costs and all expenditures
by the Company and its Subsidiaries for the acquisition of fixed
or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such
period) as shown in the Company's consolidated statements of cash
flow for such period in accordance with GAAP.
"Capital Lease" has the meaning specified in the
definition of Capital Lease Obligations.
"Capital Lease Obligations" means all monetary
obligations of the Company or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease ("Capital Lease").
"Cash Equivalents" means:
(b) securities issued or fully guaranteed or insured
by the United States Government or any agency thereof having
maturities of not more than six months from the date of
acquisition;
(c) certificates of deposit, time deposits, Eurodollar
time deposits, repurchase agreements, reverse repurchase
agreements, or bankers' acceptances, having in each case a
tenor of not more than six months, issued by any Bank, or by
any U.S. commercial or investment bank or broker having
combined capital and surplus of not less than $100,000,000
whose short term securities are rated at least A-1 by S&P
and P-1 by Xxxxx'x; and
(d) commercial paper or promissory notes of an issuer
rated at least A-1 by S&P or P-1 by Xxxxx'x and in either
case having a tenor of not more than three months.
"Closing Date" means December 12, 1995.
"Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder as
from time to time in effect.
"Comdata" means Comdata Network, Inc., a Maryland
corporation.
"Comdata Holdings" means Comdata Holdings Corporation,
a Delaware corporation.
"Commitment" means (a) as to each Bank executing this
Agreement on the Closing Date, its commitment to extend credit to
the Company in the amount set forth opposite its name on Schedule
2.01 (as such amount may be reduced from time to time in
accordance with Section 2.09 or Section 10.08) and (b) as to each
financial institution becoming a Bank hereunder pursuant to
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Section 10.08, its commitment to extend credit in the amount
agreed upon in the assignment and acceptance agreement entered
into by it in accordance with Section 10.08.
"Commitment Percentage" means, as to any Bank, the
percentage derived by dividing such Bank's Commitment by the
Aggregate Commitment.
"Committed Borrowing" means a Borrowing hereunder
consisting of Committed Loans made on the same day by the Banks
ratably according to their respective Commitment Percentages and,
in the case of Offshore Rate Committed Loans, having the same
Interest Period.
"Committed Loan" means a Loan by a Bank to the Company
under subsection 2.01(a), and may be an Offshore Rate Committed
Loan or a Base Rate Committed Loan (each, a "Type" of Committed
Loan).
"Competitive Bid" means an offer by a Bank to make a
Bid Loan in accordance with subsection 2.08(b).
"Competitive Bid Request" is defined in
subsection 2.08(a).
"Compliance Certificate" means a certificate delivered
to the Agent by the Company pursuant to subsection 6.02(a),
substantially in the form of Exhibit A attached hereto.
"Consolidated Fixed Charges" means, at any time, (a)
Consolidated Interest Expense for the four fiscal quarters ending
on or before the date of determination, plus (b) Current
Maturities of Long Term Debt measured as of the last day of the
fiscal quarter ending on or before the date of determination (but
excluding principal payable under the Loan Documents), plus (c)
dividends paid on preferred stock issued by the Company
(including the Preferred Stock) for the four fiscal quarters
ending on or before the date of determination, as determined in
accordance with GAAP.
"Consolidated Indebtedness" means, at any time, all
amounts which would, in accordance with GAAP, be included as
Indebtedness on a consolidated balance sheet of the Company and
its Subsidiaries as of such time.
"Consolidated Interest Expense" means, for any period,
gross consolidated interest expense for such period (including
all commissions, discounts, fees and other charges in connection
with Letters of Credit) for the Company and its Subsidiaries.
"Consolidated Net Income (Loss)" means, for any
period, all amounts which would, in accordance with GAAP, be
included in net income (loss) on the consolidated income
statement of the Company and its Subsidiaries for such period.
"Consolidated Net Worth" means, at any time, with
respect to the Company and its Subsidiaries, shareholders' equity
on the date of determination as determined in accordance with
GAAP (except that the effects of direct charges or credits to
shareholders' equity related to accounting for pensions
("FAS 87") and foreign currency translation ("FAS 52") are to be
disregarded).
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"Consolidated Total Assets" means, at any time, the
total consolidated assets of the Company and its Subsidiaries
measured as of the last day of the fiscal quarter ending on or
before the date of determination, as determined in accordance
with GAAP.
"Contingent Obligation" means, as to the Company or
any of its Subsidiaries, (a) any Guaranty Obligation of that
Person; (b) any reimbursement obligation of that Person with
respect to a standby letter of credit, surety bond, banker's
acceptance or similar instrument; (c) any obligation of that
Person to purchase any materials, supplies or other property
from, or to obtain the services of, another Person (other than
the Company or one of its Subsidiaries) if the relevant contract
or other related document or obligation requires that payment for
such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such
services are ever performed or tendered; and (d) all Indebtedness
(other than that of the Company or any of its Subsidiaries)
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned
by the Company or any such Subsidiary; but in all events
excluding obligations of the type described in clauses (a)
through (d) above to the extent that reserves or liabilities have
been established therefor in the Company's consolidated financial
statements.
"Contractual Obligations" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"Conversion Date" means any date on which the Company
elects to convert a Base Rate Committed Loan to an Offshore Rate
Committed Loan or to convert an Offshore Rate Committed Loan to a
Base Rate Committed Loan.
"Credit Extension" means a Borrowing, a continuance or
conversion of Loans or the issuance of or purchase of a
participation under subsection 2.01(c) in a Letter of Credit.
"Credit Extension Date" means the date on which a
Credit Extension is made.
"Current Maturities of Long Term Debt" means the
principal portion of any Indebtedness with a maturity date in
excess of one year that is due within the next 12 months.
"Debt Tender Offer" means the offer by Comdata to
purchase for cash all of its outstanding Senior Notes and all of
its outstanding Senior Subordinated Debentures, and the related
solicitation of consents to amend the related indentures, as set
forth in the Offer to Purchase.
"Default" means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an Event
of Default.
"Dollars", "dollars" and "$" each mean lawful money of
the United States.
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"Domestic Lending Office" means, with respect to each
Bank, the office of that Bank designated as such in the signature
pages hereto or such other office of the Bank as it may from time
to time specify to the Company and the Agent.
"EBIT" means, for any period, for the Company and its
Subsidiaries determined in accordance with GAAP, the sum of (a)
Consolidated Net Income (Loss), plus (b) Consolidated Interest
Expense, plus (c) provision for income taxes to the extent
included in the determination of Consolidated Net Income (Loss),
and minus (d) interest income, all determined on a consolidated
basis for the Company and its Subsidiaries; provided, however,
that Consolidated Net Income (Loss) shall be computed for these
purposes without giving effect to extraordinary losses or gains
or losses or gains from discontinued operations.
"EBITDA" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, the sum of (a) EBIT plus (b) depreciation
and amortization expenses.
"Eligible Assignee" means (a) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is
acting through a branch or agency located in the United States;
and (c) any Bank Affiliate.
"Environmental Claims" means all claims, however
asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any
Environmental Law or for release or injury to the environment or
threat to public health, personal injury (including sickness,
disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response
costs, restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based upon (a)
the alleged or actual presence, placement, migration, spillage,
leakage, disposal, discharge, emission or release of any
Hazardous Material at, in, or from property, whether or not owned
by the Company, or (b) any other circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations, registration
requirements and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental
and land use matters or health and safety matters involving
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the rules and regulations
promulgated thereunder as from time to time in effect.
-9-
"ERISA Affiliate" means any trade or business (whether
or not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with
respect to a Pension Plan; (b) a withdrawal by the Company or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which would reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any
ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning
specified in the definition of "Offshore Rate".
"Event of Default" means any of the events or
circumstances specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of
1934, and regulations promulgated thereunder.
"Existing Comdata Credit Agreement" means that certain
Amended and Restated Credit Agreement dated as of March 3, 1995
by and among Comdata, Comdata Holdings, BT Commercial
Corporation, as agent, and the financial institutions parties
thereto, as amended.
"Existing Company Credit Agreement" means that certain
Second Amended and Restated Credit Agreement dated as of May 23,
1995 by and among the Company, BofA, as agent, and the financial
institutions parties thereto.
"Extension" is defined in Section 2.05.
"Extension Refusal Date" is defined in Section 2.05.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Federal Reserve
Board (including any such successor, "H.15(519)") for such day
opposite the caption "Federal Funds (Effective)". If on any
relevant day such rate is not yet published in H.15(519), the
rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m.
-9-
Quotation") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day the appropriate rate for
such previous day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors
of the Federal Reserve System, or any successor thereto.
"Financial L/C" means, with respect to any Letter of
Credit, a "financial standby letter of credit" as such term is
defined in the Adequacy Guidelines For Bank Holding Companies:
Risk-Based Measure, 12 C.F.R. Part 225, Appendix A, III.D (1993)
and as the definition of such term may be amended from time to
time prior to issuance of any such Letter of Credit. Such term
is described in the 1993 Code of Federal Regulations as
"irrevocable obligations of the banking organization to pay a
third-party beneficiary when a customer (account party) fails to
repay an outstanding loan or debt instrument (direct credit
substitute)."
"GAAP" means generally accepted accounting principles
set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other
entity as may be in general use by significant segments of the
U.S. accounting profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Guarantors" means, collectively, Comdata Holdings,
Comdata and any domestic Material Subsidiary that executes the
Subsidiary Guaranty pursuant to Section 6.12.
"Guaranty Obligation" means, as applied to the Company
or any of its Subsidiaries, any agreement of the Company or any
such Subsidiary to guarantee the Indebtedness of a Person other
than the Company or any of its Subsidiaries (the "primary
obligor"), or any obligation or undertaking of the Company or any
such Subsidiary which, in economic effect, is substantially
equivalent to a guarantee of the primary obligor's Indebtedness
("primary obligations"), including any obligation of the Company
or any such Subsidiary, whether or not contingent, (a) to
purchase, repurchase or otherwise acquire such primary
obligations or any property constituting direct or indirect
security therefor, or (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the primary
obligor, or (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
-11-
primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against
loss in respect thereof.
"Hazardous Materials" means all those substances which
are regulated by, or which may form the basis of liability under,
any Environmental Law, including all substances identified under
any Environmental Law as a pollutant, contaminant, hazardous
waste, hazardous constituent, hazardous chemicals, special waste,
hazardous substance, hazardous material, regulated substance, or
toxic substance, or petroleum or petroleum derived substance or
waste.
"IBOR Auction" means a solicitation of Competitive
Bids setting forth an IBOR Bid Margin pursuant to Section 2.08.
"IBOR Bid Loan" means any Bid Loan that bears interest
at a rate based upon the IBO Rate.
"IBOR Bid Margin" has the meaning specified in
subsection 2.08(c)(ii)(C).
"IBO Rate" has the meaning specified in the definition
of "Offshore Rate".
"Indebtedness" of any Person means, without
duplication, (a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade payables
entered into in the Ordinary Course of Business pursuant to
ordinary terms); (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of
property, assets or businesses; (d) all indebtedness created or
arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event
of default are limited to repossession or sale of such property);
and (e) all Capital Lease Obligations. Indebtedness owed to the
Company by its Subsidiaries, by one Subsidiary to another or by
the Company to a Subsidiary shall not constitute Indebtedness.
"Indemnified Person" has the meaning specified in
subsection 10.05(a).
"Indemnified Liabilities" has the meaning specified in
subsection 10.05(a).
"Insolvency Proceeding" means, with respect to any
Person, (a) any case, action or proceeding with respect to such
Person before any court or other Governmental Authority relating
to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or
(b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case for clause (a)
and (b) above, undertaken under U.S. Federal, State or foreign
law, including the Bankruptcy Code.
"Interest Payment Date" means (a) as to any Base Rate
Committed Loan, the first Business Day of January, April, July
and October, each date on which such Committed Loan is converted
into an Offshore Rate Committed Loan, and the Termination Date;
-11-
(b) as to any Offshore Rate Committed Loan, the last day of each
Interest Period applicable to such Loan and, if any such Interest
Period exceeds three months, the date that falls three months
after the beginning of such Interest Period; (c) as to any
Absolute Rate Bid Loan or any IBOR Bid Loan, the last day of each
Interest Period applicable to such Loan and any intervening dates
prior to the maturity thereof as may be specified by the Company
and agreed to by the applicable Bid Loan Lender in the applicable
Competitive Bid.
"Interest Period" means, (a) as to any Offshore Rate
Loan, the period commencing on the Business Day such Loan is
disbursed, or (in the case of any Offshore Rate Committed Loan)
on the Conversion Date on which such Loan is converted into or
continued as an Offshore Rate Committed Loan, and ending on the
date one, two, three or six months thereafter, as selected by the
Company in its Notice of Borrowing, Notice of
Conversion/Continuation or Competitive Bid Request, as the case
may be; and (b) as to any Absolute Rate Bid Loan, a period of not
less than 14 days and not more than 365 days as selected by the
Company in the applicable Competitive Bid Request; provided,
however, that:
(a) if any Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period shall
be extended to the next succeeding Business Day unless, in
the case of an Offshore Rate Loan, 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) any Interest Period pertaining to an Offshore Rate
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 the
calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the
Termination Date.
"Investment" of a Person means the outstanding amount
of any loan, advance, extension of credit (other than loans,
advances or extensions of credit arising in the Ordinary Course
of Business), or the amount of any contribution of capital by
such Person to any other Person or any investment in, or purchase
or other acquisition of, the stock, partnership or membership
interests, notes, debentures or other securities of any other
Person made by such Person.
"Invitation for Competitive Bids" means a solicitation
for Competitive Bids, substantially in the form of Exhibit C
attached hereto.
"Issuing Bank" means, with respect to each Letter of
Credit, BAI (or any of its Affiliates including BofA) or such
other Bank which may issue a Letter of Credit.
"IRS" means the Internal Revenue Service or any entity
succeeding to any of its principal functions under the Code.
"Joint-Applicant" means, with respect to any Letter of
Credit, a Subsidiary of the Company which together with the
Company signs a Letter of Credit Application.
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"Junior Subordinated Notes" means Comdata's 11% Junior
Subordinated Extendible Notes due 1997.
"Lending Office" means, with respect to any Bank, the
office or offices of such Bank specified as its "Lending Office"
or "Domestic Lending Office" or "Offshore Lending Office", as the
case may be, opposite its name on the applicable signature page
hereto, or such other office or offices of the Bank as it may
from time to time notify the Company and the Agent in writing.
"Letter of Credit" means (a) a standby letter of
credit issued under this Agreement by the Issuing Bank for the
account of the Company and (b) any Old Letter of Credit
outstanding on the Closing Date, including an Extension of any
letter of credit.
"Letter of Credit Application" means a letter of
credit application and agreement in form and substance
satisfactory to the Issuing Bank. Attached hereto as Exhibit D
is the initial form of Letter of Credit Application.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or other security interest
(including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest
of a lessor under a Capital Lease Obligation and any financing
lease having substantially the same economic effect as any of the
foregoing) and any contingent or other agreement to provide any
of the foregoing, but not including the interest of a lessor
under an Operating Lease.
"Loan" means an extension of credit by a Bank to the
Company pursuant to Article II, and may be a Committed Loan or a
Bid Loan.
"Loan Documents" means this Agreement, the Notes, the
Letter of Credit Applications, the Subsidiary Guaranties, and all
documents delivered to the Agent or any Bank in connection
herewith or therewith, as such instruments, agreements and
documents may be amended, supplemented, restated, modified or
renewed from time to time.
"Majority Banks" means (a) at any time prior to the
Termination Date, Banks then having 51% or more of the
Commitments and (b) at all other times, Banks then holding 51% or
more of the then aggregate unpaid principal amount of the Credit
Extensions.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole or
(b) a material adverse effect upon the validity or enforceability
against the Company or any Guarantor of any of the Loan
Documents.
"Material Subsidiary" means at any time any Subsidiary
of the Company the assets of which are 10% or more of
Consolidated Total Assets (or the equivalent thereof in another
currency).
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"Merger" means the merger of Acquisition Corp. with
and into Comdata Holdings pursuant to the Plan of Merger.
"Merger Documents" means the Plan of Merger and all
instruments, agreements and documents executed and delivered in
connection with the Plan of Merger.
"Moody's" means Xxxxx'x Investors Service, Inc. and
any successor thereto.
"Multiemployer Plan" means a "multiemployer plan",
within the meaning of Section 4001(a)(3) of ERISA, to which the
Company or any ERISA Affiliate makes, is making, or is obligated
to make contributions or, during the preceding three calendar
years, has made, or been obligated to make, contributions.
"Notes" means the Bid Loan Notes.
"Notice of Borrowing" means a notice given by the
Company to the Agent pursuant to Section 2.03, in substantially
the form of Exhibit E attached hereto.
"Notice of Conversion/Continuation" means a notice
given by the Company to the Agent pursuant to Section 2.06, in
substantially the form of Exhibit F attached hereto.
"Notice of Lien" means any "notice of lien" or similar
document intended to be filed or recorded with any court,
registry, recorder's office, central filing office or other
Governmental Authority for the purpose of evidencing, creating,
perfecting or preserving the priority of a Lien securing
obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness,
advances, debts, liabilities, obligations, covenants and duties
owing by the Company or any Guarantor to any Bank, the Agent, or
any other Person required to be indemnified under any Loan
Document, of any kind or nature, present or future, whether or
not evidenced by any note, guaranty or other instrument, arising
under this Agreement or under any other Loan Document, whether or
not for the payment of money, whether arising by reason of an
extension of credit, the issuance of a Letter of Credit, loan,
guaranty, indemnification or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising and however acquired.
"Offer to Purchase" means the Offer to Purchase and
Consent Solicitation Statement of Comdata dated November 22, 1995
relating to the Senior Notes and Senior Subordinated Debentures
as it may subsequently be amended (including any amendments to
increase the tender offer consideration), but without giving
effect to any amendments thereto relating to the amendments or
waivers to the Indentures (as defined therein) proposed thereby.
"Offshore Lending Office" means with respect to each
Bank, the office of such Bank designated as such in the signature
pages hereto or such other office of such Bank as such Bank may
from time to time specify to the Company and the Agent.
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"Offshore Rate" means, for each Interest Period in
respect of Offshore Rate Loans comprising part of the same
Borrowing, an interest rate per annum (rounded upward to the
nearest 1/16th of 1%) determined pursuant to the following
formula:
Offshore Rate = IBO Rate
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means (a) with respect
to Offshore Rate Committed Loans, the maximum reserve
percentage (expressed as a decimal, rounded upward to the
nearest 1/100th of 1%) in effect on the date the IBO Rate
for such Interest Period is determined (whether or not
applicable to any Bank) under regulations issued from time
to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities") having a term comparable to such
Interest Period; (b) with respect to IBOR Bid Loans, 0%; and
"IBO Rate" means for any Interest Period with respect
to an IBOR Bid Loan or Offshore Rate Committed Loan, the
rate of interest per annum determined by the Agent as the
rate of interest at which dollar deposits in the approximate
amount of, in the case of IBOR Bid Loans, the IBOR Bid Loans
to be borrowed in such Bid Loan Borrowing, and, in the case
of Offshore Rate Committed Loans, the Offshore Rate
Committed Loan to be made by BofA, and having a maturity
comparable to such Interest Period, would be offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I., to major
banks in the offshore dollar interbank market upon request
of such banks at approximately 11:00 a.m. (New York City
time) two Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as
of the effective date of any change in the Eurodollar
Reserve Percentage.
"Offshore Rate Committed Loan" means any Committed
Loan that bears interest based on the Offshore Rate.
"Offshore Rate Loan" means an IBOR Bid Loan or an
Offshore Rate Committed Loan.
"Old Letters of Credit" means letters of credit issued
by BofA or BankAmerica International under the Existing Company
Credit Agreement and outstanding on the Closing Date, all of
which are listed on Schedule 1.01 attached hereto.
"Operating Lease" means, as applied to any Person, any
lease of property which is not a Capital Lease.
"Ordinary Course of Business" means, in respect of any
transaction involving the Company or any Subsidiary of the
Company, the ordinary course of such Person's business, as
-15-
conducted by any such Person in accordance with past practice and
undertaken by such Person in good faith and not for purposes of
evading any covenant or restriction in any Loan Document.
"Organization Documents" means, for any corporation,
the certificate or articles of incorporation, the bylaws, any
certificate of designations or instrument relating to the rights
of preferred shareholders of such corporation, and all applicable
resolutions of the board of directors (or any committee thereof)
of such corporation.
"Other Taxes" has the meaning specified in subsection
3.01(b).
"Participant" has the meaning specified in subsection
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any of its principal functions under
ERISA.
"Pension Plan" means a pension plan, as defined in
Section 3(2) of ERISA, subject to Title IV of ERISA, which the
Company or any ERISA Affiliate sponsors or maintains, or to which
the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions, or in the case of a multiple
employer plan, as described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five
plan years; but excluding in all cases any Multiemployer Plan.
"Performance L/C" means, with respect to any Letter of
Credit, a "performance standby letter of credit" as such term is
defined in the Adequacy Guidelines For Bank Holding Companies:
Risk-Based Measure, 12 C.F.R. Part 225, Appendix A, III.D (1993)
as the definition of such term may be amended from time to time
prior to issuance of any such Letter of Credit. Such term is
described in the 1993 Code of Federal Regulations as "irrevocable
obligations of the banking organization to pay a third-party
beneficiary when a customer (account party) fails to perform some
other contractual non-financial obligation."
"Permitted Liens" is defined in Section 7.01.
"Person" means an individual, partnership,
corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture
or Governmental Authority.
"Plan" means an employee benefit plan, as defined in
Section 3(3) of ERISA, which the Company or any ERISA Affiliate
sponsors or maintains, or to which the Company or any ERISA
Affiliate makes, is making, or is obligated to make
contributions, and includes any Pension Plan or Multiemployer
Plan.
"Plan of Merger" means that certain Agreement and Plan
of Merger dated as of August 23, 1995 by and among the Company,
Acquisition Corp. and Comdata Holdings.
"Preferred Stock" means the Company's 5-1/2%
Cumulative Convertible Exchangeable Preferred Stock, par value
$100 per share.
-16-
"Purchase" means any transaction, or any series of
related transactions, consummated on or after the Closing Date,
by which the Company or any of its Subsidiaries (a) acquires any
ongoing business or all or substantially all of the assets of any
firm, corporation or division thereof, whether through purchase
of assets, merger or otherwise, or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities
having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the
outstanding partnership or membership interests of a partnership
or limited liability company, respectively.
"Rate Contracts" means interest rate and currency swap
agreements, cap, floor and collar agreements, interest rate
insurance, currency spot and forward contracts and other
agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Rating Agency" means S&P and Xxxxx'x.
"Replacement Bank" has the meaning specified in
Section 3.07.
"Reportable Event" means any of the events set forth
in Section 4043(b) of ERISA or the regulations promulgated
thereunder, other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations issued by
the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of any arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject.
"Responsible Officer" means the chief executive
officer, the chief financial officer, the president, any
executive vice president, the controller or the treasurer of the
Company.
"S&P" means Standard & Poor's Ratings Group, a
division of The McGraw Hill Companies and any successor thereto.
"SEC" means the Securities and Exchange Commission, or
any successor thereto.
"Senior Notes" means Comdata's 12-1/2% Senior Notes
due 1999.
"Senior Subordinated Debentures" means Comdata's 13-
1/4% Senior Subordinated Debentures due 2002.
"Solvent" means, as to any Person at any time, that
(a) the fair value of the property of such Person is greater than
the fair value of such Person's liabilities (including disputed,
contingent and unliquidated liabilities) as such value is
established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for
purposes of the Uniform Fraudulent Conveyances Act (as enacted in
the State of Illinois); (b) the present fair saleable value of
-17-
the property of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its
debts as they become absolute and matured; (c) such Person is
able to realize upon its property and pay its debts and other
liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d)
such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (e) such Person is
not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Stated Amount" means, with respect to any Letter of
Credit, at any date of determination thereof, the maximum
aggregate amount available for drawing thereunder plus the
aggregate amount of all unreimbursed payments and disbursements
under such Letter of Credit.
"Subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of the
voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more
of the Subsidiaries of the Person, or a combination thereof.
Unless the context otherwise clearly requires, references herein
to a "Subsidiary" refer to a Subsidiary of the Company.
"Subsidiary Guaranty" means the Subsidiary Guaranty
executed and delivered by each Guarantor in the form of Exhibit G
attached hereto together with each additional guaranty in
substantially such form executed and delivered by a domestic
Material Subsidiary pursuant to Section 6.12, in each case as
amended, restated, supplemented or otherwise modified from time
to time.
"Taxes" has the meaning specified in subsection
3.01(a).
"Termination Date" means the earlier to occur of:
(b) November 30, 1998; and
(c) the date on which the Aggregate Commitment
terminates in accordance with Section 2.09 or Section 8.02.
"Transferee" has the meaning specified in subsection
10.08(e).
"Type" has the meaning specified in the definition of
"Committed Loan".
"UCC" means the Uniform Commercial Code as in effect
in the State of Illinois.
"United States" and "U.S." each means the United
States of America.
"Wholly-Owned Subsidiary" means any corporation in
which (other than directors' qualifying shares required by law)
100% of the capital stock of each class having ordinary voting
power, and 100% of the capital stock of every other class, in
each case, at the time as of which any determination is being
-18-
made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
I.2 Other Interpretive Provisions.
(a) Defined Terms. Unless otherwise specified herein
or therein, all terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document
made or delivered pursuant hereto. The meaning of defined terms
shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not
otherwise defined herein and that are defined in the UCC shall
have the meanings therein described.
(b) The Agreement.
(i) The words "hereof", "herein", "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 subsection, section,
schedule and exhibit references are to this Agreement unless
otherwise specified.
(ii) The term "documents" includes any and all
instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
The term "including" is not limiting and means "including
without limitation". In the computation of periods of time
from a specified date to a later specified date, the word
"from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word "through"
means "to and including."
(iii) Unless otherwise expressly provided
herein, (A) references to agreements (including this
Agreement) and other contractual instruments shall be deemed
to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan
Document, and (B) references to any statute or regulation
are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(iv) The captions and headings of this Agreement
are for convenience of reference only and shall not affect
the interpretation of this Agreement.
(v) This Agreement and other Loan Documents may
use several different limitations, tests or measurements to
regulate the same or similar matters. All such limitations,
tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise
expressly provided, any reference to any action of the Agent
or the Banks by way of consent, approval or waiver shall be
deemed modified by the phrase "in its/their sole
discretion."
(vi) This Agreement and the other Loan Documents
are the result of negotiations among and have been reviewed
by counsel to the Agent, the Company and the other parties,
and are the products of all parties. Accordingly, they
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shall not be construed against the Banks or the Agent merely
because of the Agent's or Banks' involvement in their
preparation.
I.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed
in accordance with GAAP as in effect from time to time, but all
financial computations required under this Agreement shall be
made in accordance with GAAP as in effect and applied by the
Company on September 30, 1995, consistently applied, except to
the extent otherwise agreed upon by the parties hereto.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
II.1 Amount and Terms of Commitments. Within the limits of
each Bank's Commitment, and subject to the other terms and
conditions hereof, the Company may borrow, repay and reborrow
Loans and obtain the issuance of Letters of Credit.
(a) The Committed Loans. From time to time on any
Business Day during the period from the Closing Date to the
Termination Date, each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make Committed Loans to the
Company in an aggregate outstanding amount not to exceed at any
time the amount of such Bank's Commitment Percentage of the
difference between (i) the Aggregate Commitment minus (ii) the
sum of (A) the aggregate principal amount of all outstanding
Committed Loans and Bid Loans, plus (B) the aggregate undrawn
face amount of all outstanding Letters of Credit and plus (C)
the aggregate amount of drawings made under Letters of Credit for
which the applicable Issuing Bank has not yet been reimbursed.
(b) The Letters of Credit. The Issuing Bank agrees,
on the terms and conditions hereinafter set forth, on any
Business Day on or prior to the Termination Date, to issue
Letters of Credit for the account of the Company and, if
applicable, a Joint-Applicant, in a face amount not in excess at
any time of the Aggregate Commitment, minus the sum of (i) the
aggregate principal amount of all outstanding Loans, plus (ii)
the aggregate undrawn face amount of all outstanding Letters of
Credit, plus (iii) the aggregate amount of drawings made under
Letters of Credit for which the applicable Issuing Bank has not
yet been reimbursed; provided, however, that (A) in no event may
the Stated Amount of Letters of Credit issued to support worker's
compensation obligations of the Company and its Subsidiaries
exceed $10,000,000 at any one time and (B) in no event may the
aggregate Stated Amount of all Letters of Credit outstanding
exceed $75,000,000 at any time. BAI may, at its option, fulfill
its Commitment to issue Letters of Credit by arranging for the
issuance of Letters of Credit by an Affiliate of BAI. Any Letter
of Credit issued by an Affiliate of BAI shall be deemed to be
issued by BAI for the purpose of BAI's fulfilling its Commitment
and retaining a proportionate interest in Letters of Credit
pursuant to subsection (c) of this Section 2.01.
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(c) Participation; Old Letters of Credit. Each Bank
(other than the Issuing Bank) agrees to purchase a participation
(i) in each Letter of Credit on the date of issuance of such
Letter of Credit and (ii) in each amendment increasing the face
amount of a Letter of Credit after the issuance thereof, on the
date of such amendment, in an amount equal to its Commitment
Percentage. The Issuing Bank shall retain a proportionate
interest in the amount of its Commitment Percentage in each
Letter of Credit after such purchase of participations. With
respect to Old Letters of Credit, upon the effectiveness of this
Agreement pursuant to Section 4.01, each Bank (other than the
Issuing Bank) shall be deemed to have purchased a participation
in the amount of its Commitment Percentage in such Old Letters of
Credit and such Old Letters of Credit shall be deemed to be
Letters of Credit existing under this Agreement.
II.2 Loan Accounts.
(a) The Committed Loans made by each Bank shall be
evidenced by one or more loan accounts or records maintained by
such Bank in the ordinary course of business. The loan accounts
or records maintained by the Agent and each Bank shall be
conclusive absent manifest error of the amount of the Committed
Loans made by the Banks to the Company and the interest and
payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation
of the Company hereunder to pay any amount owing with respect to
the Committed Loans. At the request of any Bank, the Company
shall execute and deliver a promissory note in form and substance
satisfactory to the Company and such Bank to reflect the
Committed Loans evidenced by such loan accounts or records.
(b) The Bid Loans made by each Bank shall be evidenced
by one or more notes ("Bid Loan Notes"), in addition to the loan
accounts referenced in subsection 2.02(a). Each such Bank shall
endorse on the schedules annexed to its Bid Loan Note the date,
amount and maturity of each Bid Loan made by it and the amount of
each payment of principal made by the Company with respect
thereto. Each such Bank is irrevocably authorized by the Company
to endorse its Bid Loan Note and each Bank's record shall be
conclusive absent manifest error; provided, however, that the
failure of a Bank to make, or an error in making, a notation
thereon with respect to any Bid Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any such
Bid Loan Note to such Bank.
II.3 Procedure for Committed Borrowings.
(a) Each Committed Borrowing shall be made upon the
Company's irrevocable written notice (or telephonic notice,
promptly confirmed by a writing) delivered to the Agent in the
form of a Notice of Borrowing (which notice must be received by
the Agent prior to (i) 9:30 a.m. (Chicago time) two Business Days
prior to the requested Borrowing date, in the case of Offshore
Rate Committed Loans and (ii) 10:30 a.m. (Chicago time) on the
same Business Day of such proposed Borrowing, in the case of Base
Rate Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which shall
be in an aggregate minimum principal amount of $5,000,000 or
any multiple of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
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(C) whether the Committed Borrowing is to be comprised
of Offshore Rate Committed Loans or Base Rate Committed
Loans; and
(D) the duration of the Interest Period applicable to
such Committed Loans included in such notice. If the Notice
of Borrowing fails to specify the duration of the Interest
Period for any Committed Borrowing, such Borrowing shall
consist of Base Rate Committed Loans, regardless of the type
of Loans requested by the Company;
(b) Upon receipt of the Notice of Borrowing, the Agent
will promptly notify each Bank thereof and of the amount of such
Bank's Commitment Percentage of the Committed Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of each Committed Borrowing available to the Agent for
the account of the Company at the Agent's Payment Office by 1:00
p.m. (Chicago time) on the Borrowing date requested by the
Company in funds immediately available to the Agent. The
proceeds of all such Committed Loans will then be made available
to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of
the amounts made available to the Agent by the Banks and in like
funds as received by the Agent.
(d) Unless the Majority Banks shall otherwise agree,
during the existence of a Default or Event of Default, the
Company may not elect to have a Loan be made as, converted into
or continued as an Offshore Rate Loan.
(e) After giving effect to any Committed Borrowing,
conversion or continuation, there shall not be more than ten
different Interest Periods in effect in respect of all Committed
Loans and all Bid Loans then outstanding.
II.4 Letter of Credit Requests
(a) Whenever the Company wishes to have the Issuing
Bank issue a Letter of Credit, the Company shall deliver to the
Issuing Bank a Letter of Credit Application with appropriate
insertions, signed by the Company, and, if such Letter of Credit
is also to be issued for the account of a Joint-Applicant, signed
by the Joint-Applicant. Such Letter of Credit Application shall
be delivered at least two and not more than fifteen Business Days
prior to the requested date of issuance, except as provided in
clause (iv) in the proviso to Section 2.05. Requests for
amendments to Letters of Credit shall be submitted in writing at
least two and not more than fifteen Business Days prior to the
requested amendment date. If at any time the Issuing Bank is not
the Agent, a copy of such Letter of Credit Application shall be
delivered to the Agent as well. The Agent shall deliver notice
of the request for the issuance of a Letter of Credit to all
other Banks and copies thereof to all such Banks which have
requested such copies. In each Letter of Credit Application, the
Company shall designate whether the Letter of Credit is a
Financial L/C or a Performance L/C and whether, if it is a
Financial L/C, it is being issued to support worker's
compensation obligations of the Company and its Subsidiaries.
The determination of the Issuing Bank and the Agent as to such
designation shall be made at or prior to the time such Letter of
Credit is issued, shall be conclusive in the event of any
disagreement with the Company with respect thereto and shall
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govern during the term of this Agreement, notwithstanding any
subsequent change in the definition of any such term in the
applicable regulations.
(b) Letters of Credit may be Financial L/Cs or
Performance L/Cs, and all Letters of Credit shall be denominated
in Dollars. No Letter of Credit shall have a final expiration
date later than the earlier of (i) one year from the date
issuance or (ii) the Termination Date.
(c) The Agent shall deliver to the Company a copy of
each Letter of Credit issued and each amendment thereto and shall
also promptly deliver a copy thereof to each other Bank which has
requested such a copy. Each Letter of Credit shall provide that
payment thereunder shall not be made earlier than three Business
Days after receipt of any documents demanding payment thereunder.
2.05 Extension of Letters of Credit. If (a) any Letter of
Credit provides that the term thereof will be automatically
extended or renewed (by issuance of a substitute Letter of Credit
or otherwise) unless notice is given by the Issuing Bank on or
before a specified date (hereinafter called the "Extension
Refusal Date") that such Issuing Bank will not permit such
extension or renewal or (b) the Company requests the extension or
renewal of any other Letter of Credit, then for purposes of
Sections 2.01, 2.04, and 4.03 of this Agreement, any such renewal
or extension granted by the Issuing Bank (hereinafter called an
"Extension") shall be deemed to be the issuance of a new Letter
of Credit and such issuance shall be deemed to occur on the
Extension Refusal Date in the case of a Letter of Credit
described in clause (a) above, or the date of such request in the
case of a Letter of Credit described in clause (b) above;
provided, however, that (i) such extension shall not cause the
respective Letter of Credit to expire later than the earlier of
(A) one year from the extension date or (B) the Termination Date;
(ii) the Extension shall not be deemed to cause any duplication
of the amount of such Letter of Credit for purposes of
determining compliance with subsection 2.01(b); (iii) the Issuing
Bank shall receive at least ten but not more than thirty Business
Days' prior written notice of such Extension, and the
accompanying Letter of Credit Application shall state that it
relates to such Extension and shall specify the related Extension
Refusal Date, if any; and (iv) no document need be delivered by
the Issuing Bank pursuant to subsection 2.04(c) with respect to
any Letter of Credit described in clause (a) above unless the
terms of such Letter of Credit so require.
2.06 Conversion and Continuation Elections for Committed
Borrowings.
(a) Prior to the Termination Date, the Company may,
upon irrevocable written notice (or telephonic notice, promptly
confirmed by a writing) to the Agent in accordance with
subsection 2.06(b):
(i) elect, as of any Business Day, in the case of
Base Rate Committed Loans, or as of the last day of the
applicable Interest Period, in the case of Offshore Rate
Committed Loans, to convert any such Committed Loans (or any
part thereof in an amount not less than $5,000,000, or that
is in an integral multiple of $1,000,000 in excess thereof)
into Committed Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Offshore Rate Committed
Loans having Interest Periods expiring on such day (or any
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part thereof in an amount not less than $5,000,000, or that
is in an integral multiple of $1,000,000 in excess thereof);
provided, however, that if the aggregate amount of Offshore Rate
Committed Loans has been reduced, by payment, prepayment, or
conversion of part thereof to be less than $5,000,000, such
Offshore Rate Committed Loans shall automatically convert into
Base Rate Committed Loans, and on and after such date the right
of the Company to continue such Committed Loans as, and convert
such Committed Loans into, Offshore Rate Committed Loans shall
terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation in accordance with Section 10.02 to be
received by the Agent not later than (i) 9:30 a.m. (Chicago time)
at least two Business Days in advance of the Conversion Date or
continuation date, if the Committed Loans are to be converted
into or continued as Offshore Rate Committed Loans; and (ii)
10:30 a.m. (Chicago time) on the Conversion Date, if the
Committed Loans are to be converted into Base Rate Committed
Loans; specifying:
(A) the proposed Conversion Date or continuation date;
(B) the aggregate amount of Committed Loans to be
converted or continued;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Committed Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Committed Loans, the Company has
failed to select a new Interest Period to be applicable to such
Offshore Rate Committed Loans or if any Default or Event of
Default shall then exist, the Company shall be deemed to have
elected to convert such Offshore Rate Committed Loans into Base
Rate Committed Loans effective as of the expiration date of such
current Interest Period.
(d) Upon receipt of a Notice of Conversion/
Continuation, the Agent will promptly notify each Bank thereof,
or, if no timely notice is provided by the Company, the Agent
will promptly notify each Bank of the details of any automatic
conversion. All conversions and continuations shall be made pro
rata according to the respective outstanding principal amounts of
the Committed Loans with respect to which the notice was given
held by each Bank.
(e) Unless the Majority Banks shall otherwise consent,
during the existence of a Default or Event of Default, the
Company may not elect to have a Committed Loan converted into or
continued as an Offshore Rate Committed Loan.
II.7 Bid Borrowings. In addition to Committed Borrowings
pursuant to Section 2.01, each Bank severally agrees that the
Company may, as set forth in Section 2.08, from time to time
request the Banks prior to the Termination Date to submit offers
to make Bid Loans to the Company; provided, however, that the
Banks may, but shall have no obligation to, submit such offers
and the Company may, but shall have no obligation to, accept any
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such offers; and provided, further, that at no time shall (a) the
outstanding aggregate principal amount of all Bid Loans made by
all Banks, plus the outstanding aggregate principal amount of all
Committed Loans made by all Banks, plus the aggregate undrawn
face amount of all outstanding Letters of Credit, plus the
aggregate amount of drawings made under Letters of Credit for
which the applicable Issuing Bank has not yet been reimbursed
exceed the Aggregate Commitment; (b) the outstanding aggregate
principal amount of all Bid Loans made by all Banks exceed 75% of
the Aggregate Commitment; or (c) the number of Interest Periods
for Bid Loans then outstanding plus the number of Interest
Periods for Committed Loans then outstanding exceed ten.
2.08 Procedure for Bid Borrowings. (a) When the Company
wishes to request the Banks to submit offers to make Bid Loans
hereunder, it shall transmit to the Agent by facsimile
transmission a notice in substantially the form of Exhibit H
attached hereto (a "Competitive Bid Request") so as to be
received no later than 11:00 a.m. (Chicago time) (i) four
Business Days prior to the date of a proposed Bid Borrowing in
the case of an IBOR Auction, or (ii) one Business Day prior to
the date of a proposed Bid Borrowing in the case of an Absolute
Rate Auction, specifying:
(A) the date of such Bid Borrowing, which shall be a
Business Day;
(B) the aggregate amount of such Bid Borrowing, which
shall be a minimum amount of $5,000,000 or in integral multiples
of $1,000,000 in excess thereof;
(C) whether the Competitive Bids requested are to be
for IBOR Bid Loans or Absolute Rate Bid Loans or both; and
(D) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest
Period" herein.
Subject to subsection 2.08(c), the Company may not request
Competitive Bids for more than three Interest Periods in a single
Competitive Bid Request and may not request Competitive Bids more
than once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the
Agent will promptly send to the Banks by facsimile transmission
an Invitation for Competitive Bids, which shall constitute an
invitation by the Company to each Bank to submit Competitive Bids
offering to make the Bid Loans to which such Competitive Bid
Request relates in accordance with this Section 2.08.
(c) (i) Each Bank may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans
in response to any Invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this
subsection 2.08(c) and must be submitted to the Agent by
facsimile transmission at the Agent's office for notices set
forth on the signature pages hereto not later than (A) 8:30 a.m.
(Chicago time) three Business Days prior to the proposed date of
Borrowing, in the case of an IBOR Auction or (B) 8:30 a.m.
(Chicago time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction; provided, however, that Competitive
Bids submitted by BofA (or any Affiliate of BofA) in the capacity
of a Bank may be submitted, and may only be submitted, if BofA or
such Affiliate notifies the Company of the terms of the offer or
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offers contained therein not later than (1) 8:15 a.m. (Chicago
time) three Business Days prior to the proposed date of
Borrowing, in the case of an IBOR Auction or (2) 8:15 a.m.
(Chicago time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially
the form of Exhibit I attached hereto, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan for
which such Competitive Bid is being made, which principal
amount (1) may be equal to, greater than or less than the
Commitment of the quoting Bank, (2) must be $5,000,000 or in
multiples of $1,000,000 in excess thereof, and (3) may not
exceed the principal amount of Bid Loans for which
Competitive Bids were requested;
(C) in case the Company elects an IBOR Auction,
the margin above or below the IBO Rate (the "IBOR Bid
Margin") offered for each such Bid Loan, expressed in
multiples of 1/1000th of one basis point to be added to or
subtracted from the applicable IBO Rate and the Interest
Period applicable thereto;
(D) in case the Company elects an Absolute Rate
Auction, the rate of interest per annum expressed in
multiples of 1/1000th of one basis point (the "Absolute
Rate") offered for each such Bid Loan; and
(E) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by
the quoting Bank with respect to each Interest Period specified
in the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit I or does not specify all of the information
required by subsection (c)(ii) of this Section;
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bids; or
(D) arrives after the time set forth in
subsection (c)(i).
(d) Promptly on receipt and not later than 9:00 a.m.
(Chicago time) three Business Days prior to the proposed date of
Borrowing in the case of an IBOR Auction, or 9:00 a.m. (Chicago
time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, the Agent will notify the Company of the
terms (i) of any Competitive Bid submitted by a Bank that is in
accordance with subsection 2.08(c), and (ii) of any Competitive
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Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank with respect to
the same Competitive Bid Request. Any such subsequent
Competitive Bid shall be disregarded by the Agent unless such
subsequent Competitive Bid is submitted solely to correct a
manifest error in such former Competitive Bid and only if
received within the times set forth in subsection 2.08(c). The
Agent's notice to the Company shall specify (i) the aggregate
principal amount of Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid
Request; and (ii) the respective principal amounts and IBOR Bid
Margins or Absolute Rates, as the case may be, so offered.
Subject only to the provisions of Sections 3.02, 3.05 and 4.03
and the provisions of this subsection (d), any Competitive Bid
shall be irrevocable except with the written consent of the Agent
given on the written instructions of the Company.
(e) Not later than 9:30 a.m. (Chicago time) three
Business Days prior to the proposed date of Borrowing, in the
case of an IBOR Auction, or 9:30 a.m. (Chicago time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction, the Company shall notify the Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to
subsection 2.08(d). The Company shall be under no obligation to
accept any offer and may choose to reject all offers. In the
case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that is
accepted. The Company may accept any Competitive Bid in whole or
in part; provided, however, that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in
the related Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing
must be $5,000,000 or in any integral multiple of $1,000,000
in excess thereof;
(iii) acceptance of offers may only be made on
the basis of ascending IBOR Bid Margins or Absolute Rates
within each Interest Period, as the case may be; and
(iv) the Company may not accept any offer that is
described in subsection 2.08(c)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(f) If offers are made by two or more Banks with the
same IBOR Bid Margins or Absolute Rates, as the case may be, for
a greater aggregate principal amount than the amount in respect
of which such offers are accepted for the related Interest
Period, the principal amount of Bid Loans in respect of which
such offers are accepted shall be allocated by the Agent among
such Banks as nearly as possible (in such multiples, not less
than $1,000,000, as the Agent may deem appropriate) in proportion
to the aggregate principal amounts of such offers. Determination
by the Agent of the amounts of Bid Loans shall be conclusive in
the absence of manifest error.
(g) (i) The Agent will promptly notify each Bank
having submitted a Competitive Bid if its offer has been
accepted and, if its offer has been accepted, of the amount
of the Bid Loan or Bid Loans to be made by it on the date of
the Bid Borrowing.
(ii) Each Bank which has received notice pursuant
to subsection 2.08(g)(i) that its Competitive Bid has been
accepted shall make the amounts of such Bid Loans available
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to the Agent for the account of the Company at the Agent's
Payment Office, by 1:00 p.m. (Chicago time) on such date of
Bid Borrowing, in funds immediately available to the Agent
for the account of the Company at the Agent's Payment
Office.
(iii) Promptly following each Bid Borrowing, the
Agent shall notify each Bank of the ranges of bids submitted
and the highest and lowest Bids accepted for each Interest
Period requested by the Company and the aggregate amount
borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Banks
shall furnish such information to the Agent as the Agent may
request relating to the making of Bid Loans, including the
amounts, interest rates, dates of borrowings and maturities
thereof, for purposes of the allocation of amounts received
from the Company for payment of all amounts owing hereunder.
(h) If, on or prior to the proposed date of
Borrowing, the Commitments have not been terminated and if, on
such proposed date of Borrowing all applicable conditions to
funding referenced in Sections 3.02, 3.05 and 4.03 are satisfied,
the Banks whose offers the Company has accepted will fund each
Bid Loan so accepted. Nothing in this Section 2.08 shall be
construed as a right of first offer in favor of the Banks or to
otherwise limit the ability of the Company to request and accept
credit facilities from any Person (including any of the Banks),
provided that no Default or Event of Default would otherwise
arise or exist as a result of the Company executing, delivering
or performing under such credit facilities.
2.09 Voluntary Termination or Reduction of Commitments.
The Company may, upon not less than three Business Days' prior
written or telephonic (promptly confirmed with a writing) notice
to the Agent given prior to 11:00 a.m. (Chicago time) (which
notice shall be irrevocable), terminate or permanently reduce the
Aggregate Commitment by an aggregate minimum amount of
$10,000,000 or any integral multiple of $5,000,000 in excess
thereof; provided, however, that no such reduction or termination
shall be permitted if, after giving effect thereto and to any
prepayments of Committed Loans made on the effective date
thereof, the sum of the then outstanding principal amount of the
Loans and the Stated Amount of the then outstanding Letters of
Credit would exceed the Aggregate Commitment then in effect and,
provided, further, that once reduced in accordance with this
Section 2.09, the Aggregate Commitment may not be increased. Any
reduction of the Aggregate Commitment shall be applied to each
Bank's Commitment in accordance with such Bank's Commitment
Percentage. All accrued commitment fees to, but not including
the effective date of any reduction or termination of
Commitments, shall be paid on the effective date of such
reduction or termination.
II.10 Optional Prepayments. (a) Subject to Section 3.04,
the Company may, at any time or from time to time, upon at least
one Business Day's notice to the Agent with respect to Base Rate
Committed Loans and at least three Business Days' notice to the
Agent with respect to Offshore Rate Committed Loans, ratably
prepay Committed Loans in whole or in part, in an aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in
excess thereof. Each such notice shall be delivered no later
than 11:00 a.m. (Chicago time). Such notice of prepayment shall
specify the date and amount of such prepayment and the type of
Committed Loans being prepaid. Such notice shall not thereafter
be revocable by the Company and the Agent will promptly notify
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each Bank thereof and of such Bank's Commitment Percentage of
such prepayment. Such notice may be given by telephone, promptly
confirmed by a writing. If such notice is given by the Company,
the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such
date on the amount prepaid and any amounts required pursuant to
Section 3.04.
(b) Bid Loans may not be voluntarily prepaid.
2.11 Repayment. The Company shall repay to the Banks in
full on the Termination Date the aggregate principal amount of
the Loans outstanding on the Termination Date. The Company shall
repay each Bid Loan on the last day of the relevant Interest
Period.
2.12 Repayment of Letter of Credit Drawings
(a) With respect to each Letter of Credit,
(i) when a draft or other demand for payment is
received by the Issuing Bank, it shall promptly give notice
thereof by telecopy or telephone to the Agent and the
Company;
(ii) when a payment is made by the Issuing Bank,
it shall promptly give notice thereof to the Company and the
Agent by telephone or telecopy; and
(iii) the Company agrees, and shall cause each
Joint-Applicant through its execution of a Letter of Credit
Application to agree, to promptly reimburse the Issuing Bank
(by making payment to the Agent for the account of such
Issuing Bank) on the date of any payment or disbursement
made by such Issuing Bank under such Letter of Credit for
such payment or disbursement; provided, however, that the
Company shall not be deemed to be in default of this
subsection 2.12(a) or subsection 8.01(a) with respect to any
such reimbursement obligation prior to the second Business
Day after it has been notified that the related payment or
disbursement has been made by the Issuing Bank. Any amount
not reimbursed (by making payment to the Issuing Bank) on
the date of such payment or distribution by the Issuing Bank
shall bear interest from and including the date of such
payment or disbursement to but not including the date the
Issuing Bank is reimbursed by the Company therefor, payable
on demand, at a rate per annum equal to (A) the Base Rate
from time to time in effect for each day through the third
Business Day after the Company's receipt of the notice
provided for in subsection (a)(i) above, and (B) the Base
Rate plus 2% per annum for each day thereafter.
(b) Subject to the terms and conditions of this
Agreement, the Company may use the proceeds of a Loan hereunder
to so reimburse the Issuing Bank. If on or before the first
Business Day after receipt of the notice required pursuant to
subsection 2.12(a)(i), the Company requests a Loan to which it is
entitled under the terms of this Agreement for the purpose of
paying the related reimbursement obligation and in an amount
sufficient to fully pay such reimbursement obligation, then the
Company shall not be deemed to be in default of its reimbursement
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obligations under this Section or subsection 8.01(a) even though
such Loan is not made until a subsequent Business Day (pursuant
to the notice provisions of Section 2.03 or 2.08).
(c) The Company's obligation to reimburse the Issuing
Bank for payments and disbursements made by the Issuing Bank
under any Letter of Credit shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Company or a
Joint-Applicant may have or have had against the Issuing Bank (or
the Agent or any other Bank), including, without limitation,
failure of the Issuing Bank to comply with subsections (a)(i) and
(ii) of this Section, any defense based on the failure of the
demand for payment under such Letter of Credit to conform to the
terms of such Letter of Credit or the legality, validity,
regularity or enforceability of such Letter of Credit or any
defense based on the identity of the transferee of such Letter of
Credit or the sufficiency of the transfer if such Letter of
Credit is transferable; provided, however, that the Company shall
not be obligated to reimburse such Issuing Bank for any wrongful
payment or disbursement made under any Letter of Credit as a
result of acts or omissions constituting gross negligence or
willful misconduct on the part of the Issuing Bank or any of its
officers, employees or agents.
(d) The Company agrees that it will promptly examine
the copy of each Letter of Credit (and any amendments thereto)
sent to it by the Issuing Bank, as well as any and all
instruments and documents delivered to the Company from time to
time, and in the event the Company has any claim of
non-compliance with the Company's instructions or of
discrepancies or other irregularity, the Company will promptly
notify the Issuing Bank and the Agent thereof in writing, and the
Company and any Joint-Applicant shall be deemed by their
execution and delivery of the related Letter of Credit
Application to have waived any such claim against the Issuing
Bank unless such prompt notice is given.
(e) Unless specified to the contrary in the relevant
Letter of Credit Application, or any amendment to a Letter of
Credit, the Company and each Joint-Applicant agree by their
execution of such application that the Issuing Bank and its
correspondents may receive and accept (i) any item drawn or
presented under such Letter of Credit or other document otherwise
in order, issued or purportedly issued by an agent, executor,
trustee in bankruptcy, receiver or other representative of the
party who is authorized under such Letter of Credit to issue such
item or other document, as complying with the terms of such
Letter of Credit and (ii) documents which on their face appear to
comply with the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 or by later Uniform Customs and Practice
fixed by later Congresses of the International Chamber of
Commerce as in effect on the date the related Letter of Credit is
issued.
2.13 Default in Reimbursement of Issuing Bank
(a) If the Issuing Bank is not reimbursed by the
Company for any payment or disbursement under a Letter of Credit,
the Agent shall promptly notify each of the other Banks of such
unreimbursed payment or disbursement, and upon such notice the
other Banks shall promptly on the same day (or the next Business
Day if such notice is received after 10:00 a.m., Chicago time)
provide the Agent with immediately available funds in Dollars for
the account of such Issuing Bank, covering such Bank's Commitment
Percentage of such payment or disbursement. If the Agent
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subsequently receives from the Company or any Joint-Applicant any
reimbursement of such payment or disbursement, the Agent shall
promptly remit to each Bank its Commitment Percentage of such
reimbursement. All interest payments received by the Issuing
Bank or the Agent on account of reimbursements under this
Agreement shall be promptly distributed by the Agent to the
Issuing Bank and the other Banks pro rata according to their
respective Commitment Percentages (except to the extent that the
Issuing Bank was not promptly reimbursed by any such Bank).
(b) The obligation of each Bank to provide the Agent
with such Bank's pro rata share of the amount of any payment or
disbursement made by the Issuing Bank under any outstanding
Letter of Credit shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which such Bank may have or
have had against the Issuing Bank (or the Agent or any other
Bank), including, without limitation, any defense based on the
failure of the demand for payment under such Letter of Credit to
conform to the terms of such Letter of Credit or the legality,
validity, regularity or enforceability of such Letter of Credit
or any defense based on the identity of the transferee of such
Letter of Credit or the sufficiency of the transfer if such
Letter of Credit is transferable; provided, however, that the
Banks shall not be obligated to reimburse such Issuing Bank for
any wrongful payment or disbursement made under any Letter of
Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of such Issuing Bank
or any of its officers, employees or agents.
2.14 Interest.
(a) Subject to subsection 2.14(c), each Committed Loan
shall bear interest on the outstanding principal amount thereof
from the date when made until paid in full at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be,
plus the Applicable Margin for Base Rate Committed Loans or
Offshore Rate Committed Loans, as the case may be. Subject to
subsection 2.14(c), each Bid Loan shall bear interest on the
outstanding principal amount thereof from the relevant Borrowing
Date at a rate per annum equal to the IBO Rate plus (or minus, as
the case may be) the IBOR Bid Margin, or at the Absolute Rate, as
the case may be.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Committed Loans pursuant to Section
2.10 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof and, during the existence
of any Event of Default, interest shall be paid on demand.
(c) While any Event of Default exists or after
acceleration of the Obligations, the Company shall pay interest
(after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all Obligations due
and unpaid at a rate per annum equal to the Base Rate plus 2%.
2.15 Fees.
(a) Fees Payable to BofA and the Agent. The Company
shall pay to the Agent for the Arranger's and the Agent's own
account fees in the amounts and at the times set forth in a
letter agreement between the Company, BofA and the Arranger dated
October 20, 1995.
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(b) Commitment Fees. The Company shall pay to the
Agent for the account of each Bank a commitment fee of the
Applicable Commitment Fee Percentage per annum on the average
daily unused portion of such Bank's Commitment, computed as of
the end of each calendar quarter in arrears based upon the daily
utilization for that quarter as calculated by the Agent. Such
commitment fee shall accrue from the Closing Date to the
Termination Date and shall be due and payable quarterly in
arrears on the fifteenth day after the end of each calendar
quarter through the Termination Date, with the first payment due
on January 16, 1996 and the final payment to be made on the
Termination Date; provided, however, that, (i) in connection with
any reduction of Commitments pursuant to Section 2.09, the
accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction, with the
next succeeding quarterly payment being calculated on the basis
of the period from the reduction date to the end of the quarter
in which such reduction occurs and (ii) in connection with any
termination of the Commitments pursuant to Section 2.09 or
Article VIII, the accrued commitment fee shall be paid on the
date on which the termination takes place. The commitment fees
provided in this subsection shall accrue at all times after the
Closing Date, including at any time during which one or more
conditions in Article IV are not met. For purposes of
calculating the commitment fee, the principal amount of
outstanding Committed Loans and the Stated Amount of outstanding
Letters of Credit shall be deemed utilization of the Commitments,
but the principal amount of outstanding Bid Loans shall not be
deemed utilization of the Commitments.
(c) Letter of Credit Fees.
(i) The Company shall pay to the Agent for the
account of the Banks, pro rata, a fee, according to their
respective Commitment Percentages, with respect to all
Letters of Credit issued for the account of the Company.
Such fee shall be computed as of the end of each calendar
quarter as follows:
(x) With respect to all Financial L/Cs, the
Applicable Financial L/C Percentage per annum of the
daily average Stated Amount of each such Letter of
Credit; and
(y) With respect to Performance L/Cs, the
Applicable Performance L/C Percentage per annum of the
daily average Stated Amount of such Performance L/Cs.
Such Letter of Credit fees shall be payable in arrears on the
fifteenth day after the end of each calendar quarter for Letters
of Credit outstanding during such quarter, with the first such
payment due on January 16, 1996, and on the expiration of the
last Letter of Credit outstanding under this Agreement.
(ii) The Company shall pay to the Issuing Bank for
its sole account:
(x) In arrears on the fifteenth day after
the end of each calendar quarter, with the first such
payment due on January 16, 1996, and on the expiration
of the last Letter of Credit issued by the Issuing
Bank and outstanding under this Agreement, an issuance
fee of 0.15% per annum of the daily average Stated
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Amount of all Letters of Credit issued by the Issuing
Bank and outstanding during the preceding calendar
quarter; and
(y) From time to time, upon the amendment of
any Letter of Credit, such fees as the Issuing Bank
customarily charges in connection therewith at the
times customarily charged by the Issuing Bank.
(d) Fees under the Existing Company Credit Agreement.
On the Closing Date, the Company shall pay to the Agent the fees
owed under the Existing Company Credit Agreement which have not
heretofore been paid.
2.16 Computation of Fees and Interest.
(a) All computations of interest payable in respect of
Base Rate Committed Loans at all times as the Base Rate is
determined by BofA's "reference rate" shall be made on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest under this
Agreement shall be made on the basis of a 360-day year and actual
days elapsed. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first
day thereof to the last day thereof.
(b) The Agent will, with reasonable promptness, notify
the Company and the Banks of each determination of an Offshore
Rate; provided, however, that any failure to do so shall not
relieve the Company of any liability hereunder or provide the
basis for any claim against the Agent.
(c) Each determination of an interest rate by the
Agent pursuant hereto shall be conclusive and binding on the
Company the Banks in the absence of manifest error.
II.17 Payments by the Company.
(a) All payments (including prepayments) to be made by
the Company on account of principal, interest, fees and other
amounts required hereunder, including reimbursement of drawings
under Letters of Credit, shall be made without set-off,
recoupment or counterclaim and shall, except as otherwise
expressly provided herein, be made to the Agent for the ratable
account of the Banks at the Agent's Payment Office, in dollars
and in immediately available funds, no later than 1:00 p.m.
(Chicago time) on the dates specified herein. The Agent will
promptly distribute to each Bank its Commitment Percentage (or
other applicable share as expressly provided herein) of such
principal, interest, fees or other amounts, in like funds as
received. Any payment which is received by the Agent later than
1:00 p.m. (Chicago time) shall be deemed to have been received on
the immediately succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of
interest or fees, as the case may be; subject to the provisions
set forth in the definition of "Interest Period" herein.
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(c) Unless the Agent shall have received notice from
the Company prior to the date on which any payment is due to the
Banks hereunder that the Company will not make such payment in
full as and when required hereunder, the Agent may assume that
the Company has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall
not be so required), in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent the Company
shall not have made such payment in full to the Agent, each Bank
shall repay to the Agent on demand such amount distributed to
such Bank, together with interest thereon for each day from the
date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Rate
as in effect for each such day.
2.18 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a
Bank on the Closing Date or, with respect to each Borrowing after
the Closing Date, at least one Business Day prior to the date of
any proposed Borrowing, that such Bank will not make available to
the Agent as and when required hereunder for the account of the
Company the amount of that Bank's Commitment Percentage of the
Committed Borrowing or that Bank's Bid Loan, as the case may be,
the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the
Borrowing Date and the Agent may (but shall not be so required),
in reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent any
Bank shall not have made its full amount available to the Agent
in immediately available funds and the Agent in such
circumstances has made available to the Company such amount, that
Bank shall on the next Business Day following the date of such
Borrowing make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each
day during such period. A notice of the Agent submitted to any
Bank with respect to amounts owing under this subsection 2.18(a)
shall be conclusive, absent manifest error. If such amount is so
made available, such payment to the Agent shall constitute such
Bank's Loan on the Borrowing Date for all purposes of this
Agreement. If such amount is not made available to the Agent on
the next Business Day following such Borrowing Date, the Agent
shall notify the Company of such failure to fund and, upon demand
by the Agent, the Company shall pay such amount to the Agent for
the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make
the Loan to be made by such other Bank on any Borrowing Date.
2.19 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of
any Credit Extension made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Commitment Percentage (or other share
contemplated hereunder) of payments on account of the Credit
Extensions obtained by all the Banks, such Bank shall forthwith
(a) notify the Agent of such fact, and (b) purchase from the
other Banks such participations in the Credit Extensions made by
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them as shall be necessary to cause such purchasing Bank to share
the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter
recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the
purchasing Bank the purchase price paid therefor, together with
an amount equal to such paying Bank's Commitment Percentage
(according to the proportion of (i) the amount of such paying
Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered. The Company agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.19
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to
Section 10.09) with respect to such participation as fully as if
such Bank were the direct creditor of the Company in the amount
of such participation. The Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of
participations purchased pursuant to this Section 2.19 and will
in each case notify the Banks following any such purchases or
repayments.
2.20 Pro Rata Treatment. All Committed Borrowings and
repayments shall be effected so that after giving effect thereto
all Committed Loans shall be pro rata among the Banks according
to their Commitment Percentages. All participations and Letters
of Credit shall be effected so that after giving effect thereto
all participations in each Letter of Credit shall be pro rata
among the Banks according to their Commitment Percentages.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes.
(a) Subject to subsection 3.01(g), any and all
payments by the Company to each Bank or the Agent under this
Agreement shall be made free and clear of, and without deduction
or withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Bank and the
Agent, such taxes (including income taxes or franchise taxes)
imposed on or measured by such Bank's or the Agent's net income
(all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred
to as "Taxes").
(b) In addition, the Company shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other
Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 3.01(g), the Company shall
indemnify and hold harmless each Bank, the Issuing Bank and the
Agent for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by such Bank, the Issuing
Bank or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or
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were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date any
Bank, the Issuing Bank or the Agent makes written demand
therefor, except that the Company shall not be required to make
such payment within 30 days if (i) no Default or Event of Default
has occurred and is continuing and (ii) the Company is diligently
contesting such Taxes or Other Taxes and has agreed in writing to
the satisfaction of each Bank, the Issuing Bank and the Agent to
pay to each such Bank, the Issuing Bank and the Agent all such
penalties, fines and interest incurred by such Bank, the Issuing
Bank and the Agent as a result of the Company's actions and the
resulting delay in payment. Notwithstanding the foregoing, if at
any time a Default or Event of Default occurs and is continuing,
each Bank, the Issuing Bank and the Agent may request the
Company, and the Company shall, make payment under this
indemnification within 10 days from the date such Bank, the
Issuing Bank or the Agent makes written demand therefor. In any
event, the obligations owed by the Company under this subsection
(c) shall be paid not later than the Termination Date, unless
otherwise agreed by the affected Bank and the Company.
(d) If the Company shall be required by law to deduct
or withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Bank or the Agent, then, subject to
subsection 3.01(g):
(i) the sum payable shall be increased as necessary so
that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 3.01) such Bank or the Agent, as the case may be,
receives an amount equal to the sum it would have received
had no such deductions been made;
(ii) the Company shall make such deductions, and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by
the Company of Taxes or Other Taxes, the Company shall furnish to
the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a
person other than a United States person for United States
Federal income tax purposes) agrees no later than the Closing
Date (or, in the case of a Bank which becomes a party hereto
pursuant to Section 10.08 after the Closing Date, the date upon
which the Bank becomes a party hereto) to deliver to the Company
through the Agent two accurate and complete signed originals of
Internal Revenue Service Form 1001, 4224 or any successor
thereto, as appropriate, in each case indicating that the Bank is
on the date of delivery thereof entitled to receive payments
under this Agreement free from withholding of United States
Federal income tax.
(g) The Company shall not be required to pay any
additional amounts in respect of United States Federal income tax
pursuant to subsection 3.01(d) to any Bank for the account of any
Lending Office of such Bank:
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(i) if the obligation to pay such additional amounts
would not have arisen but for a failure by such Bank to
comply with its obligations under subsection 3.01(f) in
respect of such Lending Office; or
(ii) if such Bank shall have delivered to the
Company the forms referred to in subsection 3.01(f), and
such Bank shall not at any time be entitled to exemption
from deduction or withholding of United States Federal
income tax in respect of payments by the Company hereunder
for the account of such Lending Office for any reason other
than a change in United States law or regulations or in the
official interpretation of such law or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force of
law) after the date of delivery of such forms.
(h) If the Company is required to pay additional
amounts to any Bank or the Agent pursuant to subsection 3.01(d),
then such Bank shall use its reasonable efforts (consistent with
legal and regulatory restrictions) to change the jurisdiction of
its Lending Office so as to eliminate any such additional payment
by the Company which may thereafter accrue if such change in the
judgment of such Bank is not otherwise disadvantageous to such
Bank.
3.2 Illegality.
(a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law
or in the interpretation or administration thereof, has made it
unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Bank or its
Lending Office to make Offshore Rate Loans, then, on notice
thereof by the Bank to the Company through the Agent, the
obligation of that Bank to make Offshore Rate Loans (including in
respect of any IBOR Bid Loan as to which the Company has accepted
such Bank's Competitive Bid, but as to which the Borrowing Date
has not arrived) shall be suspended until the Bank shall have
notified the Agent and the Company that the circumstances giving
rise to such determination no longer exists.
(b) If a Bank determines that it is unlawful for such
Bank to maintain any Offshore Rate Loan, the Company shall prepay
in full all Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon, either on the last day of
the Interest Period thereof if the Bank may lawfully continue to
maintain such Offshore Rate Loans to such day, or immediately, if
the Bank may not lawfully continue to maintain such Offshore Rate
Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.04.
(c) If the Company is required to prepay any Offshore
Rate Loan immediately as provided in subsection 3.02(b), then
concurrently with such prepayment, the Company shall borrow from
the affected Bank, in the amount of such repayment, a Base Rate
Committed Loan.
(d) If the obligation of any Bank to make or maintain
Offshore Rate Loans has been so terminated or suspended, the
Company may elect, by giving notice to the Bank through the Agent
that all Loans which would otherwise be made by the Bank as
Offshore Rate Loans shall be instead Base Rate Committed Loans.
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(e) Before giving any notice to the Agent pursuant to
this Section 3.02, the affected Bank shall designate a different
Lending Office with respect to its Offshore Rate Loans if such
designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of the Bank, be illegal
or otherwise disadvantageous to the Bank.
3.3 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate) in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline
or request from any central bank or other Governmental Authority
(whether or not having the force of law), there is any increase
in the cost to such Bank of agreeing to make or making, funding
or maintaining any Offshore Rate Committed Loans or issuing or
participating in any Letter of Credit, then the Company shall be
liable for, and shall from time to time, upon demand therefor by
such Bank (with a copy of such demand to the Agent), pay to the
Agent for the account of such Bank, upon receipt of a certificate
from such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs. Such certificate
shall set forth the amount owed to such Bank by the Company under
this subsection (a), shall explain the reason the payment is
required and shall be conclusive absent manifest error.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any
corporation controlling the Bank, with any Capital Adequacy
Regulation; reduces or would reduce the rate of return on such
Bank's capital as a consequence of its Commitment, the Loans, the
Letters of Credit or its participation therein to a level below
that which such Bank could have achieved but for such
introduction, change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to
capital adequacy) then, upon demand of such Bank (with a copy to
the Agent), the Company shall pay to the Bank, from time to time
as specified by the Bank, upon receipt of a certificate from such
Bank, additional amounts sufficient to compensate the Bank for
such reduction. Such certificate shall set forth the amount owed
to such Bank by the Company under this subsection (b), shall
explain the reason the payment is required and shall be
conclusive absent manifest error.
3.4 Funding Losses. The Company agrees to reimburse each
Bank and to hold each Bank harmless from any loss or expense
which the Bank may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely
basis any payment or required prepayment of principal of any
Offshore Rate Loan (including payments made after any
acceleration thereof);
(b) the failure of the Company to borrow, continue or
convert a Committed Loan after the Company has given a Notice of
Borrowing or a Notice of Conversion/Continuation;
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(c) the failure of the Company to make any prepayment
of any Committed Loan after the Company has given a notice in
accordance with Section 2.10;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan or Absolute Rate
Bid Loan on a day which is not the last day of the relevant
Interest Period with respect thereto;
(e) the automatic conversion under Section 2.06
of any Offshore Rate Committed Loan to a Base Rate Committed Loan
on a day that is not the last day of the relevant Interest
Period; or
(f) the conversion pursuant to Section 2.06 of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a
day that is not the last day of the respective Interest Period;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its Offshore
Rate Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained. Solely for
purposes of calculating amounts payable by the Company to the
Banks under this Section 3.04, each Offshore Rate Committed Loan
made by a Bank (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been
funded at the IBO Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for
a comparable amount and for a comparable period, whether or not
such Offshore Rate Loan is in fact so funded.
3.5 Inability to Determine Rates. If the Agent determines
that for any reason adequate and reasonable means do not exist
for ascertaining the IBO Rate for any requested Interest Period
with respect to a proposed Offshore Rate Loan or that the IBO
Rate applicable pursuant to subsection 2.14(a) for any requested
Interest Period with respect to a proposed Offshore Rate Loan
does not adequately and fairly reflect the cost to the Banks of
funding such Loan, the Agent will forthwith give notice of such
determination to the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans
hereunder shall be suspended until the Agent revokes such notice
in writing. Upon receipt of such notice, the Company may revoke
any Notice of Borrowing, Notice of Conversion/Continuation or
notice of acceptance of an offer with respect to an IBOR Bid
Loan. If the Company does not revoke such notice, the Banks
shall make, convert or continue the Offshore Rate Loans, as
proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Offshore
Rate Loans shall be made, converted or continued as Base Rate
Committed Loans instead of Offshore Rate Loans.
3.6 Substitution of Banks. Upon the receipt by the
Company from any Bank (an "Affected Bank") of a claim for
compensation pursuant to Sections 3.01, 3.02 or 3.03, the Company
may: (i) request one or more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitments
but no Bank shall be required to do so; or (ii) designate an
Eligible Assignee satisfactory to the Company and the Agent to
acquire and assume all or part of such Affected Bank's Loans and
Commitments (a "Replacement Bank"). Any such designation of a
Replacement Bank under clause (ii) shall be subject to the prior
written consent of the Agent, and such Replacement Bank shall
comply with Section 10.08 as if it were an Assignee.
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3.7 Survival. The agreements and obligations of the
Company in this Article III shall survive the payment of all
other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness and Initial Advances of
Loans and Issuances of Letters of Credit up to an Aggregate
Exposure of $75 Million. This Agreement shall not become
effective until, and the obligation of (i) each Bank to make its
initial Committed Loans hereunder and (ii) the Issuing Bank to
issue, and of each Bank to purchase a participation in, the
initial Letter of Credit, is subject to the condition that (A)
the Agent shall have received on or before the Closing Date the
items set forth in subsections (a) through (n) below in form and
substance satisfactory to the Agent and each Bank in sufficient
copies for each Bank and (B) the condition that the events set
forth in subsections (h), (i) and (l) below shall have been, or
shall be concurrently, completed to the satisfaction of the Agent
and the Banks:
(a) Credit Agreement. This Agreement, executed by
each party thereto (provided that the Agent may accept a
facsimile transmitted signature page from any Bank (to be
confirmed promptly by receipt of originally executed pages) which
shall bind such Bank with the same force and effect as an
originally executed signature page from such Bank);
(b) Resolutions; Incumbency. Each of the following
documents:
(i) copies of the resolutions of the board of
directors of the Company and each Guarantor, or any duly
authorized committee thereof, approving and authorizing the
execution, delivery and performance of this Agreement and
the other Loan Documents and the transactions contemplated
hereby, and authorizing the Credit Extensions, certified as
of the Closing Date by the Secretary or an Assistant
Secretary of the Company and such Guarantor; and
(ii) a certificate of the Secretary or Assistant
Secretary of the Company and each Guarantor, certifying the
names and true signatures of the officers of the Company and
such Guarantor authorized to execute, deliver and perform,
as applicable, this Agreement and all other Loan Documents
to be delivered by each such Person hereunder;
(c) Organization Documents; Good Standing. Each of
the following documents:
(i) the articles or certificate of incorporation and
the bylaws of the Company and each Guarantor as in effect on
the Closing Date, certified by the Secretary or Assistant
Secretary of the Company or such Guarantor as of the Closing
Date; and
(ii) a good standing certificate for the Company
and each Guarantor from the Secretary of State (or similar,
applicable Governmental Authority) of its state of
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incorporation and, with respect to the Company, the state
of Minnesota, and, with respect to Comdata, the states of
Tennessee, Nevada and New Jersey.
(d) Legal Opinion. The opinions of Xxxx X. Xxxxxxx,
counsel to the Company, and of Reboul, MacMurray, Xxxxxx, Xxxxxxx
& Kristol, counsel to the Guarantors, addressed to the Agent and
the Banks, substantially in the form of Exhibit J-1 attached
hereto;
(e) Certificate. A certificate signed by a
Responsible Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article V are true and correct on and as of such date as
though made on and as of such date both before and after
giving effect to the Merger;
(ii) no Default or Event of Default exists or
would result from the initial Borrowing; and
(iii) except as disclosed in filings by the Company
and Comdata Holdings with the Securities and Exchange
Commission on Form 10-K for the year ended December 31,
1994, on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995 and September 30, 1995, on Form 8-K dated
August 24, 1995 and in a Joint Proxy Statement/Prospectus
dated November 9, 1995, there has occurred since December
31, 1994, no event or circumstance that has resulted or
could reasonably be expected to result in a material adverse
change in the financial condition, business, operations,
properties or prospects of the Company and its Subsidiaries
or of Comdata Holdings and its Subsidiaries; and
(iv) all of the conditions precedent set forth in
Section 4.01 on the part of the Company or any Subsidiary of
the Company to be satisfied have been satisfied in full as
of the Closing Date;
(f) Payment of Fees and Expenses. The Company shall
have paid all fees due on the Closing Date, together with the
Agent's Attorney Costs incurred up to and including the Closing
Date;
(g) Subsidiary Guaranty. The Subsidiary Guaranty
executed by Comdata Holdings and Comdata.
(h) Merger. The closing of the transactions
contemplated by the Plan of Merger shall have occurred pursuant
to the terms and conditions of the Plan of Merger; the Plan of
Merger shall not have been amended in a manner that is, in the
reasonable judgment of the Agent and the Banks, adverse to the
interests of the Banks; the Plan of Merger shall have been
approved by the boards of directors of the Company, Acquisition
Corp. and Comdata Holdings, all requisite shareholder approvals
of the Merger shall have been obtained in accordance with the
Plan of Merger and all Requirements of Law, and all other
conditions to the Merger in the Plan of Merger shall have been
satisfied without giving effect to any waiver thereof not
approved in writing by the Agent and the Banks; and the Agent and
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each Bank shall have received satisfactory evidence of the filing
and acceptance of a properly executed certificate of merger with
the Delaware Secretary of State.
(i) Existing Indebtedness. All loans and letters of
credit outstanding under, and all other amounts due in respect
of, the Existing Comdata Credit Agreement and the Existing
Company Credit Agreement shall have been repaid in full or
canceled (except that the Old Letters of Credit shall be deemed
to exist and continue under this Agreement); the commitments
thereunder shall have been permanently terminated and all
obligations thereunder and any security interests relating
thereto shall have been discharged; and the Agent shall have
received reasonably satisfactory evidence of such repayment,
termination and discharge;
(j) Pro Forma Financial Statements. Pro forma
consolidated financial statements of the Company after giving
effect to the Merger and the consummation of the other
transactions contemplated hereby as of (i) September 30, 1995 as
contained in the Ceridian Corporation and Comdata Holdings
Corporation Joint Proxy Statement/Prospectus of Ceridian
Corporation dated November 9, 1995 and (ii) December 31, 1995 as
contained in the October 1995 Confidential Information Memorandum
delivered to each of the Banks;
(k) Indebtedness. After giving effect to the Merger
and the other transactions contemplated hereby, the Company and
its Subsidiaries shall have outstanding no Indebtedness or
preferred stock as of the Closing Date other than (i) the
Obligations, (ii) the Preferred Stock and (iii) other
Indebtedness set forth on Schedule 4.01 hereto;
(l) Approvals and Consents. All requisite or
necessary governmental authorities and third parties shall have
approved or consented to the Merger and the other transactions
contemplated hereby to the extent required, all such approvals
and consents shall remain in effect and all applicable appeal
periods shall have expired, and there shall be no governmental or
judicial action, actual or threatened, that has a reasonable
likelihood of restraining, preventing or imposing burdensome
conditions on the Merger or the other transactions contemplated
hereby;
(m) Compliance Certificate. An estimated pro forma
Compliance Certificate as of December 31, 1995 after giving
effect to the Merger and the consummation of the other
transactions contemplated hereby.
(n) Other Documents. Such other approvals, opinions
or documents as the Agent or any Bank may reasonably request.
Notwithstanding the foregoing, from and after the satisfaction in
full by the Company and its Subsidiaries of the conditions
precedent set forth in this Section 4.01, the Aggregate Exposure
shall exceed $75,000,000 only if and to the extent that the
Company is in compliance with Section 4.02.
4.2 Conditions to Advances of Loans and Issuances of
Letters of Credit in Excess of $75 Million of Aggregate Exposure.
The obligation of each Bank to make Committed Loans hereunder
and of the Issuing Bank to issue, and of each Bank to purchase
participations in, Letters of Credit, in any amount which would
cause the Aggregate Exposure to exceed $75,000,000 at any time,
and the obligation of each Bank to receive through the Agent the
initial and any subsequent Competitive Bid Requests, is subject
to the prior or concurrent satisfaction of (i) the conditions
specified in either subsection (a) or (b) below in the case of
Committed Loans and Letters of Credit and (ii) the conditions
specified in subsection (a) below in the case of Competitive Bid
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Requests, in each case in accordance with the governing
indentures and all applicable Requirements of Law and subject to
the prior or concurrent receipt of the applicable items set forth
below by the Agent and the Banks, in form and substance
reasonably satisfactory to the Agent and the Banks:
(a) After Comdata Debt Retired. All outstanding
Senior Notes, Senior Subordinated Debentures and Junior
Subordinated Notes shall have been repurchased or redeemed and
canceled or defeased (contractually or, in the case of the Senior
Notes and Senior Subordinated Debentures, "in substance") by
Comdata and/or the Company, proceeds of Loans shall have been
utilized to effect any such repurchase, redemption or defeasance
and to pay all interest and premiums in connection therewith,
supplemental indentures to the indentures governing the Senior
Notes and the Senior Subordinated Debentures shall have been duly
executed and delivered by all necessary parties which contain the
amendments to such indentures specified in the Offer to Purchase,
and the Agent shall have received a certificate of a Responsible
Officer of the Company specifying the actions taken to retire or
defease the full amount of each of the Senior Notes, the Senior
Subordinated Debentures and the Junior Subordinated Notes and
certifying that Loan proceeds were used to effect such actions
and that such indentures have been duly executed and delivered by
all necessary parties;
(b) Before Comdata Debt Retired. So long as the
conditions specified in subsection 4.02(a) remain unsatisfied,
the Company shall only be entitled to obtain, and the Banks shall
only be obligated to make, Committed Loans the principal amount
of which would result in an Aggregate Exposure in excess of
$75,000,000 (the "Debt Retirement Loans") subject to the prior or
concurrent satisfaction of the conditions specified in
subsections (i) through (iv) below with respect to Debt
Retirement Loans relating to the Senior Notes and Senior
Subordinated Debentures and subsection (v) below with respect to
Debt Retirement Loans relating to the Junior Subordinated Notes:
(i) Debt Tender Offer. There shall have been validly
tendered and not withdrawn prior to the expiration date of
the Debt Tender Offer at least a majority in principal
amount of the Senior Notes outstanding and a majority in
principal amount of the Senior Subordinated Debentures
outstanding, supplemental indentures to the indentures
governing the Senior Notes and Senior Subordinated
Debentures shall have been duly executed and delivered by
all necessary parties which contain the amendments to such
indentures specified in the Offer to Purchase, and proceeds
of Loans shall be irrevocably deposited (by the Company or
by Comdata through an intercompany loan and/or capital
contribution from the Company) with the depositary under the
Debt Tender Offer in an amount sufficient to make payment
for all Senior Notes and Senior Subordinated Debentures so
tendered (including payment of principal, accrued interest,
tender premium and consent premium), all in accordance with
the Offer to Purchase, the governing indentures and all
applicable Requirements of Law;
(ii) Approvals and Consents. All requisite or
necessary governmental authorities and third parties shall
have approved or consented to the Debt Tender Offer to the
extent required, all such approvals and consents shall
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remain in effect and there shall be no governmental or
judicial action, actual or threatened, that has a reasonable
likelihood of restraining, preventing or imposing burdensome
conditions on the Debt Tender Offer;
(iii) Legal Opinion. An opinion of Xxxx X.
Xxxxxxx, counsel to the Company, and of Reboul, MacMurray,
Xxxxxx, Xxxxxxx & Kristol, counsel to the Guarantors,
addressed to the Agent and the Banks substantially in the
form of Exhibit J-2 hereto;
(iv) Non-Tendered Senior Notes and Senior
Subordinated Debentures. With respect to Senior Notes and
Senior Subordinated Debentures which are not tendered and
purchased pursuant to the Debt Tender Offer, the Company
shall be entitled at any time after the completion of the
Debt Tender Offer and after the due execution and delivery
of supplemental indentures to the indentures governing the
Senior Notes and the Senior Subordinated Debentures by all
necessary parties which contain the amendments to such
indentures specified in the Offer to Purchase, to utilize
the proceeds of Debt Retirement Loans to repurchase, redeem
or defease (contractually or "in substance") any and all
such remaining Senior Notes and Senior Subordinated
Debentures; and
(v) Junior Subordinated Notes. The Junior
Subordinated Notes shall have been called for redemption and
proceeds of Loans shall be irrevocably deposited (by the
Company or by Comdata through an intercompany loan and/or
capital contribution from the Company) with the trustee for
the holders of the Junior Subordinated Notes in an amount
sufficient to pay and discharge the entire indebtedness on
such notes (including principal, premium and interest) as of
the redemption date, such that the Junior Subordinated Notes
and the related indenture shall be contractually defeased
upon such deposit, all in accordance with the governing
indenture and all applicable Requirements of Law.
Notwithstanding the foregoing, at no time shall the Aggregate
Exposure in excess of $75,000,000 exceed the sum of (i) the
aggregate principal amount of the Junior Subordinated Notes which
have been paid in full and discharged or legally defeased, plus
(ii) the aggregate principal amount of the Senior Notes and
Senior Subordinated Debentures which have been purchased and
canceled or defeased legally or "in substance" as described above
and plus (iii) the aggregate amount of interest, fees and premium
paid in connection with the transactions described in clauses (i)
and (ii) above; provided, however, that upon the satisfaction of
the conditions precedent set forth in subsection 4.02(a), the
Aggregate Exposure may exceed $75,000,000 without restriction as
provided above in this sentence on the terms and conditions set
forth in this Agreement.
4.3 Conditions to All Credit Extensions. The obligation
of each Bank to make any Credit Extension to be made by it
hereunder is subject to the satisfaction of the following
conditions precedent on the date of the relevant Credit
Extension:
(a) Notice of Borrowing or Continuation/Conversion
With respect to each Committed Borrowing, the Agent shall have
received a Notice of Borrowing or a Notice of
Continuation/Conversion, as applicable;
(b) Notice of Acceptance. With respect to each Bid
Borrowing, the Agent shall have received notice of acceptance of
the offer(s) by the Company pursuant to subsection 2.08(e);
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(c) Letter of Credit Request. With respect to each
request for the issuance or amendment of a Letter of Credit, the
Issuing Bank shall have received (and in the event the Issuing
Bank is not the Agent, the Agent shall have received) (i) a
Letter of Credit Application, with all blanks completed, signed
by the Company and any Subsidiary of the Company also requesting
the issuance of such Letter of Credit and (ii) a written
certificate signed by a Responsible Officer, designating the
Letter of Credit as a Financial L/C or a Performance L/C and
indicating whether such Letter of Credit supports worker's
compensation obligations;
(d) Continuation of Representations and Warranties.
The representations and warranties made by the Company contained
in Article V shall be true and correct on and as of such Credit
Extension Date with the same effect as if made on and as of such
date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date); provided, however,
that the Company shall not represent or warrant as to subsection
5.10(c) on the date of any Credit Extension which only involves a
conversion or continuation of an existing Loan and/or the
extension of a Letter of Credit and does not require an advance
of a new Loan by the Banks; and
(e) No Existing Default. No Default or Event of
Default shall exist or shall result from such Credit Extension.
Each such Notice of Borrowing, Notice of Continuation/Conversion,
notice of acceptance with respect to any Bid Loan offer or Letter
of Credit Application submitted by the Company hereunder shall
constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or application and
as of the date of each Credit Extension that the conditions in
this Section 4.03 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each
Bank that:
5.1 Corporate Existence and Power.
(a) Each of the Company and each Material Subsidiary:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation;
(ii) has the power and authority and all material
governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business and to
execute, deliver, and perform its obligations under the Loan
Documents and the Merger Documents;
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(iii) is duly qualified as a foreign corporation,
licensed 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 or license, except where the failure to be so
qualified, licensed or in good standing would not adversely
affect the business or operations of the Company or such
Subsidiary in any significant manner; and
(iv) is in compliance with all material
Requirements of Law applicable to it.
(b) Each Subsidiary of the Company which is not a
Material Subsidiary:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of
its incorporation;
(ii) has the power and authority and all
governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business;
(iii) is duly qualified as a foreign corporation,
licensed 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; and
(iv) is in compliance with all material
Requirements of Law applicable to it;
except where any failure to comply with the requirements of this
subsection (b) would not, individually or in the aggregate,
result in a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company and the
Guarantors of this Agreement and each other Loan Document to
which such Person is a party have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Person's
Organization Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which such Person is a
party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law applicable to the
such Person.
5.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or
enforcement against, the Company or any Guarantor of this
Agreement or any other Loan Document.
5.4 Binding Effect. This Agreement and each other Loan
Document to which the Company or any of its Subsidiaries is a
party, when executed and delivered, will constitute the legal,
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valid and binding obligations of the Company and any of its
Subsidiaries to the extent it is a party thereto, enforceable
against such Person in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
5.5 Litigation. Attached hereto as Schedule 5.05 is a
list of all material litigation in which the Company or any
Subsidiary is a plaintiff or a defendant as of the Closing Date.
Except as provided in Part A of Schedule 5.05, there are no
actions, suits, proceedings, claims or disputes pending, or to
the best knowledge of the Company, threatened or contemplated, at
law, in equity, in arbitration or before any Governmental
Authority, against the Company, or its Subsidiaries or any of
their respective properties which:
(a) purport to affect or pertain to this Agreement, or
any other Loan Document, or any of the transactions contemplated
hereby or thereby; or
(b) would reasonably be expected to have a Material
Adverse Effect (and taking into account the reasonable likelihood
of an adverse decision). No injunction, writ, temporary
restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or
therein provided.
5.6 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by the
Company. Neither the Company nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse
Effect.
5.7 ERISA Compliance. Except as referenced or provided
for in either Schedule 5.05 or Schedule 5.07 attached hereto:
(a) To the best knowledge of the Company, no facts or
circumstances exist which would reasonably be expected to have a
Material Adverse Effect in connection with the failure of any
Plan, or the failure of the Company, an ERISA Affiliate or any
Person with regard to the Plan, to comply with the applicable
provisions of ERISA, the Code and other Federal or state law.
The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been
made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has
resulted or would, if determined adversely to the Company or any
Plan, reasonably be expected to result in a Material Adverse
Effect. There has been no prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which
has resulted or would reasonably be expected to result in a
Material Adverse Effect.
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(c) To the best knowledge of the Company (i) no ERISA
Event has occurred or is reasonably expected to occur; (ii)
neither the Company nor any ERISA Affiliate has incurred, nor
reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due
and not delinquent under Section 4007 of ERISA); (iii) neither
the Company nor any ERISA Affiliate has incurred, nor reasonably
expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (iv) neither the
Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
5.8 Title to Properties. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
5.9 Taxes. The Company and its Subsidiaries have filed
all Federal and other material tax returns and reports required
to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise
due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP and no Notice of Lien
has been filed or recorded. There is no proposed tax assessment
against the Company or any of its Subsidiaries which would, if
the assessment were made, have a Material Adverse Effect.
5.10 Financial Condition.
(a) The audited consolidated financial statements of
the Company and its Subsidiaries dated December 31, 1994 and the
unaudited consolidated financial statements of the Company and
its Subsidiaries dated September 30, 1995:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein; and
(ii) are complete, accurate and fairly present the
financial condition of the Company and its Subsidiaries as
of the date thereof and results of operations for the period
covered thereby.
(b) The audited consolidated financial statements of
Comdata Holdings and its Subsidiaries dated December 31, 1994 and
the unaudited consolidated financial statements of Comdata
Holdings and its Subsidiaries dated September 30, 1995:
(i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as
otherwise expressly noted therein; and
(ii) are complete, accurate and fairly present the
financial condition of Comdata Holding's and its
Subsidiaries as of the date thereof and results of
operations for the period covered thereby.
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(c) Except as disclosed in filings by the Company and
Comdata Holdings with the Securities and Exchange Commission on
Form 10-K for the year ended December 31, 1994, on Form 10-Q for
the quarters ended March 31, 1995, June 30, 1995 and September
30, 1995, on Form 8-K dated August 24, 1995 and in a Joint Proxy
Statement/Prospectus dated November 9, 1995, since December 31,
1994, there has been no Material Adverse Effect.
(d) Attached hereto as Schedule 5.10 is a list of
(i) Contingent Obligations of the Company and its consolidated
Subsidiaries and Comdata Holdings and its consolidated
Subsidiaries and (ii) general partnership interests owned by the
Company and its consolidated Subsidiaries and Comdata Holdings
and its consolidated Subsidiaries, showing the aggregate
liabilities of such partnerships and Contingent Obligations on a
pro forma basis as of November 30, 1995 after giving effect to
the consummation of the Merger and the other transactions
contemplated hereby. As of the Closing Date, neither the Company
and its consolidated Subsidiaries nor Comdata Holdings and its
consolidated Subsidiaries have incurred any material Contingent
Obligations except for those set forth on Schedule 5.10.
5.11 Environmental Matters.
(a) The on-going operations of the Company and each of
its Subsidiaries comply in all respects with all Environmental
Laws, except such non-compliance which would not (if enforced in
accordance with applicable law) result in liability that would
reasonably be expected to have a Material Adverse Effect.
(b) As of the Closing Date, except as specifically
disclosed on Schedule 5.11, none of the Company, any of its
Subsidiaries or any of their respective present property or
operations is subject to any outstanding written order from or
agreement with any Governmental Authority nor subject to any
judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material.
(c) Except as specifically disclosed on Schedule 5.11,
there are no Hazardous Materials or other conditions or
circumstances existing with respect to any property, or arising
from operations of the Company or any of its Subsidiaries that
would reasonably be expected to give rise to Environmental Claims
with a potential liability of the Company and its Subsidiaries
that in the aggregate for any such condition, circumstance or
property would reasonably be expected to have a Material Adverse
Effect.
5.12 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary of the Company, is
(a) an "investment company" within the meaning of the Investment
Company Act of 1940; or (b) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness, except that certain
Persons who may be deemed to control the Company, Comdata
Holdings or Comdata are registered investment companies within
the meaning of the Investment Company Act of 1940.
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5.13 No Burdensome Restrictions. Neither the Company nor
any of its Subsidiaries is a party to or bound by any Contractual
Obligation, or subject to any charter or corporate restriction,
or any Requirement of Law, which could reasonably be expected to
have a Material Adverse Effect.
5.14 Solvency. The Company and each of its Material
Subsidiaries are Solvent.
5.15 Labor Relations. There are no strikes, lockouts or
other labor disputes against the Company or any of its
Subsidiaries, or, to the best of the Company's knowledge,
threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint
is pending against the Company or any of its Subsidiaries or, to
the best knowledge of the Company, threatened against any of them
before any Governmental Authority which, in any case, could
reasonably be expected to have a Material Adverse Effect.
5.16 Copyrights, Patents, Trademarks and Licenses, etc
Except for any failure to comply with the requirements of this
Section 5.16 which would not, individually or in the aggregate,
result in a Material Adverse Effect: (a) the Company or its
Subsidiaries own or are licensed or otherwise have the right to
use all of the patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other rights that are
reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person;
(b) to the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed
by the Company or any of its Subsidiaries infringes upon any
rights held by any other Person; and (c) except as specifically
disclosed on Schedule 5.05 attached hereto, no claim or
litigation regarding any of the foregoing is pending or
threatened, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed.
5.17 Material Subsidiaries and Equity Investments. As of
the Closing Date, the Company has no Subsidiaries other than the
Subsidiaries set forth on Schedule 5.17 attached hereto. The
Company has no Material Subsidiaries other than as set forth on
Schedule 5.17 or as disclosed to the Agent and the Banks pursuant
to Section 6.03(h) (including their jurisdiction of
incorporation) and has no Investment in any Person which is not a
Subsidiary of the Company except for such Investments that do not
exceed in the aggregate 10% of Consolidated Total Assets. All
Investments of the Company and its Subsidiaries (other than
Investments in Subsidiaries) with a net book value in excess of
$1,000,000 as of the Closing Date are set forth on Schedule
5.17(A) attached hereto.
5.18 Insurance. As of the Closing Date, the properties of
the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies, in such amounts, with
such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such
Subsidiary operates.
5.19 Merger. The Company has delivered to the Agent and
each of the Banks a true, complete and correct copy of the Plan
of Merger. The Plan of Merger as originally executed and
delivered by the parties thereto is in full force and effect and
has not been amended, waived, supplemented or modified in any
material respect without the consent of the Agent and the
Required Banks. Each of the representations and warranties of
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the Company (and, to the Company's knowledge, of Comdata
Holdings) therein is true and correct in all material respects as
of the date hereof. Neither the Company nor, to the Company's
knowledge, any other party thereto is in material default in the
performance of or compliance with any provision thereof. The
Merger has become effective in accordance with the terms of the
Plan of Merger and in accordance with applicable laws and
regulations.
5.20 Full Disclosure. None of the representations or
warranties made by the Company or any of its Subsidiaries in the
Loan Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained in
each exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the
Loan Documents as of the date such statements are made or deemed
made, contains any untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances
under which they are made, not misleading.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the
Majority Banks waive compliance in writing:
6.1 Financial Statements. The Company shall deliver to
the Agent in form and detail satisfactory to the Agent and the
Majority Banks, with sufficient copies for each Bank:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of the audited
consolidated financial statements of the Company as of the end of
such fiscal year, setting forth in each case in comparative form
the figures for the previous year, and accompanied by the opinion
of KPMG Peat Marwick LLP or another nationally-recognized
independent public accounting firm which report shall state that
such consolidated financial statements present fairly in all
material respects the financial position of the Company and its
Subsidiaries as of the dates indicated and the results of their
operations and their cash flows for the periods indicated in
conformity with GAAP; such opinion shall not be qualified or
limited for any reason, including, without limitation, because of
a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records;
and
(b) as soon as available, but not later than 60 days
after the end of each calendar quarter, a copy of the Company's
quarterly report on Form 10-Q filed with the SEC with respect to
such fiscal quarter and an operating report similar to that
provided by the Company under the Existing Credit Agreement
showing the relevant data by business unit of the Company.
6.2 Certificates; Other Information. The Company shall
furnish to the Agent, with sufficient copies for each Bank:
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(a) concurrently with the delivery of the financial
statements referred to in subsections 6.01(a) and (b) above, a
Compliance Certificate, signed by a Responsible Officer;
(b) copies of each registration statement (or
prospectus contained therein) of the Company other than with
respect to employee benefit plans, each periodic report regarding
the Company required pursuant to Section 13 of the Exchange Act,
each annual report, each proxy statement and any amendments to
any of the above filed or reported by the Company with or to any
securities exchange or the Securities and Exchange Commission, of
each communication from the Company or any Subsidiary to the
Company's shareholders generally, promptly upon the filing or
making thereof and copies of such other filings, reports and
communications with the Company's shareholders as the Agent may
from time to time request;
(c) upon release, copies of all financially material
press releases;
(d) promptly after the creation or Purchase of any
Material Subsidiary, the name of such Subsidiary, a description
of its business, the price paid for the stock or assets of such
Subsidiary, its net worth and the value of its assets; and
(e) promptly, such additional business, financial,
corporate affairs and other information as the Agent, at the
request of any Bank, may from time to time reasonably request.
6.3 Notices. The Company shall promptly notify the Agent
and each Bank upon a Responsible Officer of the Company obtaining
knowledge:
(a) of the occurrence of any Default or Event of
Default;
(b) of (i) any breach or non-performance of, or any
default under, any Contractual Obligation of the Company or any
of its Subsidiaries which would reasonably be expected to result
in a Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any
time between the Company or any of its Subsidiaries and any
Governmental Authority which would reasonably be expected to
result in a Material Adverse Effect (and taking into account the
reasonable likelihood of an adverse decision);
(c) of the commencement of, or any material
development in, any litigation or proceeding affecting the
Company or any Subsidiary (i) which would reasonably be expected
to have a Material Adverse Effect (and taking into account the
reasonable likelihood of an adverse decision), or (ii) in which
the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document;
(d) of (i) any and all enforcement, cleanup, removal
or other governmental or regulatory actions instituted or
threatened against the Company or any of its Subsidiaries or any
of their respective properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and
(iii) any environmental or similar condition on any real property
adjoining or in the vicinity of the property of the Company or
any Subsidiary that could reasonably be anticipated to cause the
property of the Company or any of its Subsidiaries or any part
thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of such property under any
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Environmental Laws, if, individually or in the aggregate, the
events or conditions described or the amount claimed in clauses
(i), (ii) and (iii) would reasonably be expected to result in a
Material Adverse Effect;
(e) of the occurrence of any ERISA Event affecting the
Company or any ERISA Affiliate, and deliver to the Agent and each
Bank a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with
respect to such event;
(f) any Material Adverse Effect subsequent to the date
of the most recent audited financial statements of the Company
delivered to the Banks pursuant to subsection 6.01(a);
(g) of any labor controversy resulting in or
threatening to result in any strike, work stoppage, boycott,
shutdown or other labor disruption against or involving the
Company or any of its Subsidiaries;
(h) of any Subsidiary (including its jurisdiction
of incorporation) which is not a Guarantor being or becoming a
Material Subsidiary; and
(i) of any change in any rating assigned by any Rating
Agency with respect to the Company.
Each notice pursuant to this Section 6.03 shall be
accompanied by a written statement by a Responsible Officer of
the Company setting forth details of the occurrence referred to
therein, and stating what action, if any, the Company proposes to
take with respect thereto and at what time. Each notice under
subsection 6.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document
that have been breached or violated.
6.4 Preservation of Corporate Existence, Etc The Company
shall, and shall cause each of its Subsidiaries to:
(a) except as permitted in Section 7.02, preserve and
maintain in full force and effect its corporate existence and
good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all
material rights, privileges, qualifications, permits, licenses
and franchises necessary or desirable in the normal conduct of
its business except in connection with transactions permitted by
Section 7.02;
(c) use its reasonable efforts, in the Ordinary Course
of Business, to preserve its business organization and preserve
the goodwill and business of the customers, suppliers and others
having material business relations with it; and
(d) preserve or renew all of its registered
trademarks, trade names and service marks, the non-preservation
of which would reasonably be expected to have a Material Adverse
Effect, provided, however, that the Company shall not be deemed
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to be in default under this Section 6.04 if a Subsidiary (other
than a Material Subsidiary) fails to comply herewith so long as
such failure is not material.
6.5 Maintenance of Property. The Company shall maintain,
and shall cause each of its Subsidiaries to maintain, and
preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear
excepted, make all necessary repairs thereto and renewals and
replacements thereof, and to keep such property free of any
Hazardous Materials, except where the failure to do so would not
reasonably be expected to result in a Material Adverse Effect,
except as permitted by Section 7.02. The Company shall use at
least the standard of care typical in the industry in the
operation of its facilities.
6.6 Insurance. The Company shall maintain, and shall
cause each of its Material Subsidiaries to maintain, with
financially sound and reputable independent insurers, insurance
with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar
circumstances by such other Persons; including workers'
compensation insurance, public liability and property and
casualty insurance. Upon request of the Agent or any Bank, the
Company shall furnish the Agent, with sufficient copies for each
Bank, at reasonable intervals (but not more than once per
calendar year) a certificate of a Responsible Officer of the
Company (and, if requested by the Agent, any insurance broker of
the Company) setting forth the nature and extent of all insurance
maintained by the Company and its Material Subsidiaries in
accordance with this Section 6.06 (and which, in the case of a
certificate of a broker, were placed through such broker).
6.7 Payment of Obligations. The Company shall, and shall
cause its Subsidiaries to, pay and discharge as the same shall
become due and payable, all their respective obligations and
liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings
and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its property; and
(c) all Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness;
provided, however, that the Company and its Subsidiaries shall
not be deemed to be in default under this Section 6.07 if failure
to comply herewith would not result in a Material Adverse Effect.
6.8 Compliance with Laws. The Company shall comply, and
shall cause each of its Subsidiaries to comply, in all material
respects with all material Requirements of Law applicable to it
or its business (including the Federal Fair Labor Standards Act),
except such as may be contested in good faith or as to which a
bona fide dispute may exist.
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6.9 Inspection of Property and Books and Records. The
Company shall maintain and shall cause each of its Material
Subsidiaries to maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions
and matters involving the assets and business of the Company and
such Subsidiaries. The Company shall permit, and shall cause
each of its Material Subsidiaries to permit, representatives and
independent contractors of the Agent or any Bank to visit and
inspect any of their respective properties, to examine their
respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective
officers and independent public accountants at such reasonable
times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the
Company; provided, however, when a Default exists, (i) the Agent
or any Bank may do any of the foregoing with respect to the
Company or any Subsidiary at any time during normal business
hours and without advance notice and (ii) such inspection,
examination and meetings shall be at the Company's expense.
6.10 Environmental Laws.
(a) The Company shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its
property in compliance in all material respects with all
Environmental Laws.
(b) Upon the written request of the Agent or any Bank,
the Company shall submit to the Agent with sufficient copies for
each Bank, at the Company's sole cost and expense, a report
providing an update of the status of any environmental, health or
safety compliance, hazard or liability issue identified in any
notice or report required pursuant to subsection 6.03(d).
6.11 Use of Proceeds. The Company shall use the proceeds
of the Loans and the Letters of Credit (a) to provide all or a
portion of the funds necessary (i) to repay in full all of the
indebtedness owing by Comdata under the Existing Comdata Credit
Agreement, (ii) to repay in full all of the indebtedness owing by
the Company, and replace any letters of credit outstanding under
the Existing Company Credit Agreement, (iii) to repurchase or
redeem the Senior Notes, the Junior Subordinated Notes and the
Senior Subordinated Debentures, or to provide for such repurchase
or redemption, (iv) to pay fees, premiums and expenses in
connection with the payment, repurchase or redemption of the
Existing Comdata Credit Agreement, the Existing Company Credit
Agreement, the Senior Notes, the Junior Subordinated Notes and
the Senior Subordinated Debentures, the consummation of the
Merger and the transactions contemplated hereby, and (b) for
working capital and other general corporate purposes (including
permitted Purchases). Letters of Credit shall be used by the
Company and its Subsidiaries for Ordinary Course of Business
purposes.
6.12 Additional Guarantors. The Company shall cause any
domestic Subsidiary which becomes a Material Subsidiary at any
time to promptly execute and deliver to the Agent, in sufficient
copies for all Banks, a Subsidiary Guaranty.
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6.13 Further Assurances.
(a) The Company shall ensure that all written
information, exhibits and reports furnished to the Agent or the
Banks do not and will not contain any untrue statement of a
material fact and do not and will not omit to state any material
fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, and will
promptly disclose to the Agent and the Banks and correct any
defect or error that may be discovered therein or in any Loan
Document or in the execution, acknowledgment or recordation
thereof.
(b) Promptly upon request by the Agent or the Majority
Banks, the Company shall (and shall cause any of its Subsidiaries
to) do, execute, acknowledge and deliver any and all such further
acts, certificates, assurances and other instruments as the Agent
or such Banks, as the case may be, may reasonably require from
time to time in order (i) to carry out more effectively the
purposes of this Agreement or any other Loan Document, and (ii)
to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Agent and Banks the rights granted or
now or hereafter intended to be granted to the Banks under any
Loan Document or under any other document executed in connection
therewith.
ARTICLE VII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any
Bank shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the
Majority Banks waive compliance in writing:
7.1 Limitation on Liens. The Company shall not, and shall
not suffer or permit any of its Subsidiaries to, directly or
indirectly, make, create, incur, assume or suffer to exist any
Lien upon or with respect to any part of its property, whether
now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other
governmental charges or statutory obligations which are not
delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.07, provided
that no notice of Lien has been filed or recorded under the Code;
(c) Liens arising in the Ordinary Course of Business
in connection with obligations (other than obligations for
borrowed money) that are not overdue or which are being contested
in good faith and by appropriate proceedings, including, but not
limited to Liens under bid, performance and other surety bonds,
supersedeas and appeal bonds, Liens on advance or progress
payments received from customers under contracts for the sale,
lease or license of goods, software or services and upon the
products being sold or licensed, in each case securing
performance of the underlying contract or the repayment of such
advances in the event final acceptance of performance under such
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contracts does not occur; and Liens upon funds collected
temporarily from others pending payment or remittance on their
behalf;
(d) Liens (other than any Lien imposed by ERISA)
required in the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and other social
security legislation;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the Ordinary Course of Business
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct
of the businesses of the Company and its Subsidiaries;
(f) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries in the
Ordinary Course of Business securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost
of acquiring such property to the extent permitted under Section
7.04; provided, however, that (i) any such Lien attaches to such
property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the
property so acquired in such transaction, and (iii) the principal
amount of the debt secured thereby does not exceed 100% of the
cost of such property;
(g) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution;
provided, however, that (i) such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Federal Reserve Board,
and (ii) such deposit account is not intended by the Company or
any of its Subsidiaries to provide collateral to the depository
institution;
(h) rights of the holders of Senior Notes, Senior
Subordinated Debentures or Junior Subordinated Notes in deposits
placed in trust to legally or "in substance" defease such notes
or such debentures; and
(i) any Lien (not otherwise permitted by this Section
7.01) securing an obligation of the Company or any Subsidiary if
the aggregate amount of all such obligations secured by all such
Liens does not exceed 15% of Consolidated Total Assets; provided,
however, that the assets of any Material Subsidiary may only be
subject to Liens permitted under this subsection 7.01(i) which
secure obligations that do not exceed 15% of such Material
Subsidiary's total assets, as determined in accordance with GAAP
(except that the terms of this proviso shall not apply to
Computing Devices Canada Ltd. prior to April 1, 1996).
7.2 Mergers, Consolidations and Dispositions of Assets
(a) Except as provided in Section 7.02(b), the Company
shall not, and shall not permit any of its Subsidiaries to: (i)
sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of related transactions) any property
or assets (including accounts and notes receivable, with or
without recourse) (collectively, "transfer") to any Person except
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in the Ordinary Course of Business; (ii) transfer to any Person
other than the Company or a Subsidiary any outstanding capital
stock that has been issued by any Subsidiary; or (iii)
consolidate with or merge into any other Person.
(b) Subsection 7.02(a) shall not apply to or restrict:
(i) the merger or consolidation of any third Person
with or into the Company or any existing Subsidiary of the
Company, provided that (A) no Default or Event of Default
has occurred and is continuing at the time of, or would
result from, the consummation of such merger or
consolidation, and (B) either (1) the Company or such
existing Subsidiary of the company is the surviving entity
in such merger or, if the third Person or a new entity is
the surviving or resulting entity in such merger or
consolidation, it becomes a Subsidiary of the Company by
virtue of such merger or consolidation with an existing
Subsidiary, or (2) if the merger or consolidation involves
an existing Subsidiary of the Company and clause (B)(1) is
not applicable, the transaction would be permitted by
subsection 7.02(b)(ix) utilizing the net book value of the
Subsidiary;
(ii) the merger or consolidation of any Subsidiary
into the Company, or with or into any other Subsidiaries,
provided that if any such transaction is between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary is the continuing or surviving corporation;
(iii) the transfer by any Subsidiary of the Company
of any assets (upon voluntary liquidation or otherwise) to
the Company or a Wholly-Owned Subsidiary of the Company;
(iv) transfers of real estate not used or useful
in the business of the Company and its Subsidiaries, any
bulk sale of inventory not representing a then current
product line of the Company or its Subsidiaries, or any sale
of property or assets used in connection with discontinued
or abandoned product lines of the Company or its
Subsidiaries;
(v) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price
of similar replacement equipment, or the proceeds of such
sale are reasonably promptly applied to the purchase price
of such replacement equipment;
(vi) (A) the transfer of assets by the Company to
any of its Subsidiaries if such transfer is a sale for fair
market value and the consideration received by the Company
is cash and (B) the transfer of the business and assets of
the Company's Computing Devices International division to a
Subsidiary of the Company;
(vii) the transfer, merger or consolidation of the
assets listed on Schedule 7.02 attached hereto;
(viii) any transfer of assets by the Company or
any of its Subsidiaries to any Person in connection with the
extension of Indebtedness or making an investment or
acquisition transaction or business combination otherwise
permitted under this Agreement; and
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(ix) transfers of assets not otherwise permitted
hereunder (whether by merger, consolidation or otherwise)
occurring after the Closing Date which are made for fair
market value; provided, however, that (A) at the time of any
transfer, no Default or Event of Default exists or would
result from such transfer and (B) the aggregate net book
value of all assets so transferred by the Company and its
Subsidiaries together shall not exceed 10% of Consolidated
Total Assets.
7.3 Cash Investments; Minority Investments. The Company
shall not, and shall not permit any of its Subsidiaries to, (A)
invest any assets classified in accordance with GAAP on the
Company's consolidated balance sheet as "cash and equivalents" or
"short-term investments" in investments other than Cash
Equivalents and investment grade marketable securities or (B)
make any Investment in any Person which is not a Subsidiary of
the Company except for such Investments that, when aggregated
with the Investments set forth on Schedule 5.17(A) hereto, do not
exceed in the aggregate 10% of Consolidated Total Assets.
7.4 Indebtedness. The Company shall not, and shall not
permit any of its Subsidiaries to, incur, assume or suffer to
exist any Indebtedness if a Default or Event of Default has
occurred and is continuing or would result from the incurrence or
assumption of such Indebtedness.
7.5 Contingent Obligations. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Contingent Obligations
except:
(a) Contingent Obligations incurred pursuant to this
Agreement;
(b) endorsements for collection or deposit in the
Ordinary Course of Business;
(c) any Contingent Obligations relating to letters of
credit, bank guarantees or similar instruments incurred by
Computing Devices Canada Ltd. in connection with the IRIS system
contract dated April 18, 1991 and in connection with a contract
dated as of January 3, 1994 with the Diesel Division of General
Motors Canada Limited; and
(d) Contingent Obligations of the Company and its
Subsidiaries in an aggregate amount not in excess of $45,000,000.
7.6 Use of Proceeds. The Company shall not and shall not
suffer or permit any of its Subsidiaries to use any portion of
the Loan proceeds, directly or indirectly, (i) to purchase or
carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of the Company or others incurred to purchase or
carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
7.7 Hostile Acquisitions. The Company shall not, and
shall not permit any of its Subsidiaries to, (a) Purchase, or
attempt to Purchase, any Person by means of a public debt or
equity tender offer or other unsolicited takeover (or the
equivalent thereof in any jurisdiction) or (b) engage in a proxy
contest (or the equivalent thereof in any jurisdiction) for
control of the board of directors (or the functional equivalent
thereof) of any Person, in either case which has not been
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approved and recommended by the board of directors (or the
functional equivalent thereof) of the Person being acquired or
proposed to be acquired or which is the subject of such proxy
contest.
7.8 Lease Obligations. The Company shall not permit the
aggregate minimum non-cancelable payment commitments in respect
of Operating Leases for the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP at the end
of any fiscal year to exceed, for any subsequent fiscal year,
$60,000,000 (exclusive of $16,000,000, or such lesser amount as
may be reserved in the Company's consolidated financial
statements to pay such commitments).
7.9 Consolidated Net Worth. The Company shall not permit
its Consolidated Net Worth at the end of any fiscal quarter to be
less than $115,000,000 plus (a) 75% of Consolidated Net Income,
if positive, subsequent to December 31, 1995, plus (b) 100% of
the net cash proceeds from the issuance of any capital stock
(other than stock issued to or in connection with employee or
director benefit plans), plus (c) the amount of any conversion of
indebtedness to equity by the Company after December 31, 1995.
7.10 Fixed Charge Coverage Ratio. On and after the
Closing Date, the Company shall not permit its ratio of
(a) EBITDA, plus interest income, minus Capital Expenditures to
(b) Consolidated Fixed Charges, all calculated on a consolidated
basis for the immediately preceding four fiscal quarters of the
Company, to be less than 2.25 to 1.00.
7.11 Leverage Ratio. On and after the Closing Date,
the Company shall not permit its ratio of (a) Consolidated
Indebtedness to (b) EBITDA, minus Capital Expenditures and minus
dividends paid on preferred stock issued by the Company
(including the Preferred Stock), all calculated on a consolidated
basis for the immediately preceding four fiscal quarters of the
Company, to be more than 3.00 to 1.00.
7.12 Change in Business. The Company shall not, and
shall not permit any of its Subsidiaries to, (i) engage in any
material line of business substantially different from those
lines of business carried on by the Company and its Subsidiaries
on the Closing Date; or (ii) extend any material amount of
Indebtedness to or make any material equity investment in any
Person which engages in one or more lines of business all of
which are substantially different from those lines of business
carried on by the Company and its Subsidiaries on the Closing
Date; or (iii) enter into any joint venture which engages in a
material line of business substantially different from those
lines of business carried on by the Company and its Subsidiaries
on the Closing Date.
7.13 Accounting Changes. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, make any
significant change in accounting treatment or reporting
practices, except as required or permitted by GAAP, or change the
fiscal year of the Company or of any of its consolidated
Subsidiaries.
7.14 Contracts of Subsidiaries The Company shall not
permit any of its Subsidiaries (other than Computing Devices
Canada Ltd. and Computing Devices Company Ltd. and its
Subsidiaries) to enter into any contract restricting the ability
of such Subsidiary to pay dividends or make loans to the Company
or Subsidiaries of the Company.
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ARTICLE VIII
EVENTS OF DEFAULT
8.1 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of any
Loan, or any reimbursement obligation in respect of a Letter of
Credit, or (ii) within 5 days after the same shall become due,
any interest, fee or any other amount payable hereunder or
pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any of its Subsidiaries made or deemed
made herein, in any Loan Document, or which is contained in any
certificate, document or financial or other statement by the
Company, any of its Subsidiaries, or their respective Responsible
Officers, furnished at any time under this Agreement, or in or
under any Loan Document, shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in
subsection 6.03(a), (b), (c), (d) or (f), Section 6.09 or in
Article VII; or the Company fails to perform or observe any term,
covenant or agreement contained in Section 6.01 or 6.02 or in
subsection 6.03(e), (g), (h) or (i), and such default continues
unremedied for a period of 10 days; or
(d) Other Defaults. The Company fails to perform or
observe any other term or covenant contained in this Agreement or
any Loan Document, and such default continues unremedied for a
period of 20 days; or
(e) Cross-Default. The Company or any of its
Subsidiaries (i) fails to make any required payment when due in
respect of any Indebtedness or Contingent Obligation having a
principal or face amount of $7,500,000 or more when due or any
Rate Contract having a notional amount of $7,500,000 or more when
due (whether at scheduled maturity or required prepayment or by
acceleration, demand, or otherwise); or (ii) fails to perform or
observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, and
such failure continues after the applicable grace or notice
period, if any, specified in the document relating thereto on the
date of such failure if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity, or
such Contingent Obligation to become payable or cash collateral
in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The Company or
any other Subsidiary of the Company (i) ceases or fails to be
Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the
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ordinary course; (iii) commences an y Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or
authorize any of the foregoing; provided, however, that it shall
not be an Event of Default under this subsection (f) if any
Subsidiary of the Company (other than a Guarantor) to which this
subsection applies does not have annual revenues in excess of 1%
of the consolidated revenues of the Company or net worth which
constitutes more than 5% of the Consolidated Net Worth of the
Company in the fiscal year immediately preceding the date this
subsection first becomes applicable to such Subsidiary; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any other Subsidiary of the Company, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or
levied against a substantial part of the Company's or any of its
Subsidiaries' Properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing
or levy; (ii) the Company or any of its Subsidiaries admits the
material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any of its Subsidiaries acquiesces in the
appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its
property or business; provided, however, that it shall not be an
Event of Default under this subsection (g) if any Subsidiary of
the Company (other than a Guarantor) to which this subsection
applies does not have annual revenues in excess of 1% of the
consolidated revenues of the Company or net worth which
constitutes more than 5% of the Consolidated Net Worth of the
Company in the fiscal year immediately preceding the date this
subsection first becomes applicable to such Subsidiary; or
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or Multiemployer Plan which has
resulted or would reasonably be expected to result in liability
of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount which would
reasonably be expected to result in a Material Adverse Effect; or
(ii) the Company or any ERISA Affiliate shall fail to pay when
due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount which would reasonably be expected to result in
a Material Adverse Effect; or
(i) Monetary Judgments. One or more final
(non-interlocutory) judgments, orders or decrees shall be entered
against the Company or any of its Subsidiaries involving in the
aggregate a liability (not fully covered by independent
third-party insurance) as to any single or related series of
transactions, incidents or conditions, of $10,000,000 or more,
and the same shall remain unvacated and unstayed pending appeal
for a period of 10 days after the entry thereof; or
(j) Ownership. Any Person or group of Persons is the
beneficial owner of 30% or more of the voting power of the
Company for a period of 30 days or more. For purposes of this
subsection (j), the terms "group" and "beneficial owner" shall
have the meanings given to those terms in Section 13 of the
Securities Exchange Act of 1934, as amended; or
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(k) Subsidiary Guaranty. Any Subsidiary Guaranty
shall fail to remain in full force and effect (except, with
respect to any Subsidiary, upon the merger of such Subsidiary
with and into the Company or any other Subsidiary which is a
Guarantor), or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any Subsidiary
Guaranty, or any Guarantor shall fail to comply with any of the
terms or provisions of its Subsidiary Guaranty, or any Guarantor
denies that it has any further liability under its Subsidiary
Guaranty, or gives notice to such effect.
8.2 Remedies. If any Event of Default occurs, the
Agent shall, at the request of, or may, with the consent of, the
Majority Banks,
(a) declare the Commitment of each Bank to make Loans
and purchase participations in Letters of Credit and of the
Issuing Bank to issue Letters of Credit to be terminated,
whereupon such Commitments shall forthwith be terminated;
(b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all
rights and remedies available to it and the Banks under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of any event
specified in paragraph (f) or (g) of Section 8.01 above (in the
case of clause (i) of paragraph (g) upon the expiration of the
60-day period mentioned therein), the obligation of each Bank to
make Loans and purchase participations in Letters of Credit and
of the Issuing Bank to issue Letters of Credit shall
automatically terminate without notice to the Company and the
unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and
payable without further act of the Agent or any Bank and without
notice to the Company. If at the time an Event of Default
occurs, Letters of Credit are issued and unexpired, the Company
shall deposit with the Agent cash in an amount equal to the
Stated Amount of all Letters of Credit to be held as collateral
therefor.
8.3 Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative and
are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE IX
THE AGENT
9.1 Appointment and Authorization. Each Bank hereby
irrevocably (subject to Section 9.09) appoints, designates and
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
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exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting
the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not
intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative
relationship between independent contracting parties.
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9.2 Delegation of Duties. The Agent may execute any of
its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
9.3 Liability of Agent. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any
officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or for the value of any collateral or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the
Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person
shall 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 any
other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or
Affiliates.
9.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement 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 counsel to
the Company), independent accountants and other experts selected
by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction
by the Banks against any and all liability and expense which may
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be incurred by it by reason of taking or continuing to take any
such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of
the Majority Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the
conditions specified in Sections 4.01, 4.02 and 4.03, each Bank
that has executed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with each
document or other matter either sent by the Agent to such Bank
for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank, unless an officer of the Agent
responsible for the transactions contemplated by the Loan
Documents shall have received notice from the Bank prior to the
initial Borrowing specifying its objection thereto and either
such objection shall not have been withdrawn by notice to the
Agent to that effect or the Bank shall not have made available to
the Agent the Bank's ratable portion of such Borrowing.
9.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have
received written 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 Agent receives such a notice, the Agent shall give
notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be
requested by the Majority Banks in accordance with Article VIII;
provided, however, that unless and until the Agent shall have
received any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interest of the Banks.
9.6 Credit Decision. Each Bank expressly acknowledges
that none of the Agent-Related Persons has made any
representation or warranty to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any
Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated thereby, and made its own decision
to enter into this Agreement and extend credit to the Company
hereunder. Each Bank also represents that it will, independently
and without reliance upon the Agent 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 other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and
other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of
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the Company which may come into the possession of any of the
Agent-Related Persons.
9.7 Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Banks shall
indemnify upon demand the Agent-Related Persons (to the extent
not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), ratably from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Loans and
the termination or resignation of the related Agent) be imposed
on, incurred by or asserted against any such Person any way
relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by any such Person under or in connection with any of
the foregoing; provided, however, that no Bank shall be liable
for the payment to the Agent-Related Persons of any portion of
such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein to the
extent that the Agent is not reimbursed for such expenses by or
on behalf of the Company. Without limiting the generality of the
foregoing, if the Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or
because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank
shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Agent under this Section, together
with all costs and expenses (including Attorney Costs). The
obligation of the Banks in this Section shall survive the payment
of all Obligations hereunder and the resignation or replacement
of the Agent.
9.8 Agent in Individual Capacity. BofA and its Affiliates
may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The
Banks acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such
Affiliates) and acknowledge that the Agent shall be under no
obligation to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though
it were not the Agent, and the terms "Bank" and "Banks" shall
include BofA in its individual capacity.
9.9 Successor Agent. The Agent may, and at the request of
the Majority Banks shall, resign as Agent upon 30 days' notice to
the Banks. If the Agent shall resign as Agent under this
Agreement, 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 successor agent is appointed
prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article IX
and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a
retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the
Banks shall perform all of the duties of the Agent hereunder
until such time, if any, as the Majority Banks appoint a
successor agent as provided for above.
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent with respect to any departure by the Company or any
Guarantor therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks (or by the Agent at
the written request of the Majority Banks), the Company and
acknowledged by the Agent, and then such waiver shall be
effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all
the Banks, the Company and acknowledged by the Agent, do any of
the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to subsection
8.02(a)) or subject any Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment
of principal, interest, fees or other amounts due to the Banks
(or any of them) hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or of any fees or other amounts
payable hereunder or under any Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which shall be
required for the Banks or any of them to take any action under
any Loan Document;
(e) release any Guarantor from the Subsidiary Guaranty
to which it is a party; or
(f) amend this Section 10.01 or Section 2.19;
and, provided further, that no amendment, waiver or consent
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shall, unless in writing and signed by the Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect
the rights or duties of the Agent under this Agreement or any
other Loan Document.
10.2 Notices.
(a) All notices, requests, consents, approvals,
waivers and other communications provided for hereunder or in
connection herewith shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Company by facsimile
(i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on the applicable signature
page hereof, and (ii) shall be followed promptly by a hard copy
original thereof) and mailed, faxed or delivered, to the address
or facsimile number specified for notices on the applicable
signature page hereof; or, as directed to the Company or the
Agent, to such other address as shall be designated by such party
in a written notice to the other parties, and as directed to each
other party, at such other address as shall be designated by such
party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next day) delivery, or
transmitted by facsimile machine, respectively, or if delivered,
upon delivery, except that notices pursuant to Article II or IX
shall not be effective until actually received by the Agent.
(c) The Company acknowledges and agrees that any
agreement of the Agent and the Banks in Article II herein to
receive certain notices by telephone and facsimile is solely for
the convenience and at the request of the Company. The Agent and
the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action
taken or not taken by the Agent or the Banks in reliance upon
such telephonic or facsimile notice. The obligation of the
Company to repay the Loans shall not be affected in any way or to
any extent by any failure by the Agent and the Banks to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is at
variance with the terms understood by the Agent and the Banks to
be contained in the telephonic or facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the 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.
10.4 Costs and Expenses. The Company shall, whether or not
the transactions contemplated hereby shall be consummated:
(a) pay or reimburse BofA (including in its capacity
as Agent) within twenty Business Days after demand (subject to
subsection 4.01(f)) for all costs and expenses incurred by BofA
(including in its capacity as Agent) in connection with the
development, preparation, delivery, administration and execution
of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection herewith
or therewith, and the consummation of the transactions
contemplated hereby and thereby, including the reasonable
Attorney Costs incurred by BofA (including in its capacity as
Agent) with respect thereto;
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(b) pay or reimburse each Bank and the Agent within
twenty Business Days after demand (subject to subsection 4.01(f))
for all costs and expenses incurred by them in connection with
the enforcement, attempted enforcement, or preservation of any
rights or remedies (including in connection with any "workout" or
restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding) under this
Agreement, any other Loan Document, and any such other documents,
including Attorney Costs incurred by the Agent and any Bank; and
(c) pay or reimburse BofA (including in its capacity
as Agent) within twenty Business Days after demand (subject to
subsection 4.01(i)) for all audit, environmental inspection and
review (including the allocated cost of such internal services),
search and filing costs, fees and expenses, incurred or sustained
by BofA (including in its capacity as Agent) in connection with
the matters referred to under subsections (a) and (b) of this
Section 10.04.
10.5 Indemnity. Whether or not the transactions
contemplated hereby shall be consummated:
(a) General Indemnity. The Company shall pay, defend,
indemnify, and hold each Bank, the Agent, the Arranger and each
of their respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including cleanup costs and
engineering consulting costs in respect of Environmental Claims
and Attorney Costs) of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and
administration of this Agreement and any other Loan Documents, or
the transactions contemplated hereby and thereby, and with
respect to any investigation, litigation or proceeding (including
any Insolvency Proceeding, Environmental Claim proceedings or
appellate proceeding) related to this Agreement or the Loans or
the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, however, that the Company
shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of such Indemnified Person.
(b) Survival; Defense. The obligations in this
Section 10.05 shall survive payment and cancellation of all other
Obligations. At the election of any Indemnified Person, the
Company shall defend such Indemnified Person using legal counsel
satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Company;
provided, however, that the Company shall only be obligated to
hire one counsel to represent all of the Banks unless any Bank
advises the Company that its legal counsel has advised it that
its interest is materially different from that of the other Banks
and it would not be adequately represented without its own
separate counsel, in which case the Company shall hire separate
counsel for such Bank, satisfactory to such Bank. All amounts
owing under this Section 10.05 shall be paid within 30 days after
demand.
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10.6 Marshalling; Payments Set Aside. Neither the Agent
nor the Banks shall be under any obligation to xxxxxxxx any
assets in favor of the Company or any other Person or against or
in payment of any or all of the Obligations. To the extent that
the Company makes a payment or payments to the Agent or the
Banks, or the Agent or the Banks exercise their rights of
set-off, and such payment or payments or the proceeds of such
set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Agent
or such Bank in its sole discretion) to be repaid to a trustee,
receiver or any other party in connection with any Insolvency
Proceeding, or otherwise, then (a) to the extent of such recovery
the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or
set-off had not occurred, and (b) each Bank severally agrees to
pay to the Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Agent.
10.7 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank.
10.8 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the
Company (which consent shall not be unreasonably withheld or
delayed) at all times other than during the existence of an Event
of Default and of the Agent and the Issuing Bank, at any time
assign and delegate to one or more Eligible Assignees (provided
that no written consent of the Company, the Agent or the Issuing
Bank shall be required in connection with any assignment and
delegation by a Bank to a Bank Affiliate of such Bank) (each an
"Assignee") all, or any ratable part of all, of the Loans, the
Commitments and the other rights and obligations of such Bank
hereunder, and if in part, in a minimum amount of $10,000,000;
provided, however, that (i) the Company and the Agent may
continue to deal solely and directly with such Bank in connection
with the interest so assigned to an Assignee until (A) written
notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee,
shall have been given to the Company and the Agent by such Bank
and the Assignee; (B) such Bank and its Assignee shall have
delivered to the Company and the Agent an assignment and
acceptance agreement in substantially the form of Exhibit B
attached hereto, together with any Notes subject to such
assignment and (C) the assignor Bank or Assignee has paid to the
Agent a processing fee in the amount of $3,500. The consent of
the Company to any such assignment shall not be unreasonably
withheld.
(b) From and after the date that the Agent notifies
the assignor Bank that it has received (and provided its consent
with respect to) an executed assignment and acceptance and
payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such assignment and acceptance agreement, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the
assignor Bank shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned
by it pursuant to such assignment and acceptance agreement,
relinquish its rights and be released from its obligations under
the Loan Documents.
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(c) Promptly after its receipt of notice by the Agent
that it has received an executed assignment and acceptance
agreement and payment of the processing fee, the Company shall
execute and deliver to the Agent a new Note evidencing such
Assignee's Bid Loans and, if the assignor Bank has not retained
any portion of its Loans and its Commitment, the assignor Bank
shall return its original Note to the Company for cancellation.
Immediately upon each Assignee's making its processing fee
payment under the assignment and acceptance agreement, this
Agreement, shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee
and the resulting adjustment of the Commitments arising
therefrom. The Commitment allocated to each Assignee shall reduce
such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank (the
"originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's obligations
under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to
deal solely and directly with the originating Bank in connection
with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall
transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other
Loan Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as described
in clauses (a), (b) and (c) in the first proviso to Section
10.01. In the case of any such participation, the Participant
shall be entitled to the benefit of Sections 3.01, 3.03 and 10.05
as though it were also a Bank hereunder, and if amounts
outstanding under this Agreement are due and 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 set-off in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality
of all information identified as "confidential" by the Company
and provided to it by the Company or any Subsidiary of the
Company, or by the Agent on such Company's or Subsidiary's
behalf, in connection with this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any
such information for any purpose or in any manner other than
pursuant to the terms contemplated by this Agreement; except to
the extent such information (i) was or becomes generally
available to the public other than as a result of a disclosure by
the Bank, or (ii) was or becomes available on a non -confidential
basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the
Company known to the Bank; provided further, however, that any
Bank may disclose such information (A) at the request or pursuant
to any requirement of any Governmental Authority to which the
Bank is subject or in connection with an examination of such Bank
by any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the
provisions of any applicable requirement of law; and (D) to such
Bank's independent auditors and other professional advisors.
Notwithstanding the foregoing, the Company authorizes each Bank
to disclose to any Participant or Assignee (each, a "Transferee")
and to any prospective Transferee, such financial and other
information in such Bank's possession concerning the Company or
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its Subsidiaries which has been delivered to Agent or the Banks
pursuant to this Agreement or which has been delivered to the
Agent or the Banks by the Company in connection with the Banks'
credit evaluation of the Company prior to entering into this
Agreement; provided that, unless otherwise agreed by the Company,
such Transferee agrees in writing to such Bank to keep such
information confidential to the same extent required of the Banks
hereunder.
(f) Notwithstanding any other provision contained in
this Agreement or any other Loan Document to the contrary, any
Bank may assign all or any portion of the Loans or Notes held by
it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Loans or Notes made by the
Company to or for the account of the assigning or pledging Bank
in accordance with the terms of this Agreement shall satisfy the
Company's obligations hereunder in respect to such assigned Loans
or Notes to the extent of such payment. No such assignment shall
release the assigning Bank from its obligations hereunder.
X.9 Set-off. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists, each
Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the
Company to the fullest extent permitted by law, to set off and
apply any and all Company deposits (general or special, time or
demand, provisional or final) at any time held by, and other
-71-
indebtedness at any time owing by, such Bank to or for the credit
or the account of the Company against any and all Obligations
owing to such Bank, now or hereafter existing, irrespective of
whether or not the Agent or such Bank shall have made demand
under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Company and the Agent after any such
set-off and application made by such Bank; provided, however,
that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each
Bank under this Section 10.09 are in addition to the other rights
and remedies (including other rights of set-off) which the Bank
may have.
10.10 Automatic Debits of Fees. With respect to any fee, or
any other cost or expense (including Attorney Costs) due and
payable to the Agent or BofA under the Credit Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit
account of the Company with BofA in an amount such that the
aggregate amount debited from all such deposit accounts does not
exceed such fee or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount
of the fee or other cost or expense then due, such debits will be
reversed (in whole or in part, in BofA's sole discretion) and
such amount not debited shall be deemed to be unpaid. No such
debit under this Section 10.10 shall be deemed a setoff.
10.11 Notification of Addresses, Lending Offices, Etc. Each
Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of its Offshore Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.12 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement in any number of
separate counterparts, each of which, when so executed, shall be
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deemed an original, and all of said counterparts taken together
shall be deemed to constitute but 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 Agent.
10.13 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.14 No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and legal benefit of the
Company, the Banks and the Agent, and their permitted successors
and assigns, and no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the
other Loan Documents. Neither the Agent nor any Bank shall have
any obligation to any Person not a party to this Agreement or
other Loan Documents.
10.15 Time. Time is of the essence as to each term or
provision of this Agreement and each of the other Loan Documents.
10.16 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
ILLINOIS; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY,
THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
10.17 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
-73-
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding among the Company, the Banks and the Agent, and
supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof, except for the letter
agreement between the Agent, the Arranger and the Company
described in subsection 2.15(a).
10.19 Interpretation. This Agreement is the result of
negotiations between and has been reviewed by counsel to the
Agent, the Company and other parties, and is the product of all
parties hereto. Accordingly, this Agreement and the other Loan
Documents shall not be construed against the Banks or the Agent
merely because of the Agent's or Banks' involvement in the
preparation of such documents and agreements.
10.20 Term of Agreement. This Agreement shall not terminate
until all Obligations (other than inchoate obligations under
Article III and Section 10.05 which survive the termination of
this Agreement) have been paid to the Agent and the Banks, even
though the Termination Date may have occurred.
10.21 Foreign Currency Conversion. If for the purpose of
(a) determining the amount owed to an Issuing Bank in respect of
payments made under a Letter of Credit or (b) obtaining judgment
in any court, it is necessary to convert a sum due hereunder in
another currency into U.S. Dollars, the Company agrees, to the
fullest extent that it may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase such other currency
with U.S. Dollars at San Francisco, California on the Business
Day preceding that on which the reimbursement amount in respect
of the Letter of Credit is due or final judgment is given.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
CERIDIAN CORPORATION
By: /s/Xxxx X. Xxxxxxxx
Name:Xxxx X. Xxxxxxxx
Title:Vice President & Treasurer
Address for notices:
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Treasury Department
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-1
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:/s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
Bank of America National Trust and
Savings Association
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Agency Management Services #5596
Re: Ceridian
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for payment:
Bank of America NT&SA
ABA No. 000-000-000
Attn: Agency Management Services
No. 5596
Credit to Account No. 12339-15086
Ref: Ceridian Corporation
X-0
XXXX XX XXXXXXX XXXXXXXX
By: /s/M. A. Xxxxxxx
Name:M. A. Xxxxxxx
Title:Vice President
Lending Office:
Bank of America-Account
Administration
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Bank of America-Account
Administration
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America Illinois
000 Xxxxx XxXxxxx Xxxxxx (0X)
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-3
BANK OF MONTREAL
By: /s/Xxxx X. Xxxxxx
Name:Xxxx X. Xxxxxx
Title:Director
Lending Office:
Bank of Montreal
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: 2) 750-3798
(31
Telephone: (000) 000-0000
Address for notices:
Bank of Montreal
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
X-0
XXX XXXX XX XXX XXXX
By: /s/Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title:Assistant Vice President
Lending Office:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Commercial Lending Office
Facsimile: (000) 000-0000 or 7924
Telephone: (000) 000-0000
Address for notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000 or 1209
Telephone: (000) 000-0000
S-5
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By: /s/Xxxx X. Xxxxxxx
Name:Xxxx X. Xxxxxxx
Title:Vice President
Lending Office:
The Boatmen's National Bank of St. Louis
Xxx Xxxxxxx'x Xxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx Kovsch
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
The Boatmen's National Bank of St. Louis
Xxx Xxxxxxx'x Xxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-6
CHEMICAL BANK
By: /s/Xxxx X. Xxxxx III
Name:Xxxx X. Xxxxx III
Title:Managing Director
Lending Office:
Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-7
FIRST AMERICAN NATIONAL BANK
By: /s/Xxxxxxx X. Xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title:Vice President
Lending Office:
First American National Bank
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Frenisa Joy
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
First American National Bank
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-8
FIRST BANK NATIONAL ASSOCIATION
By: /s/Xxxx X. Xxxxxx
Name:Xxxx X. Xxxxxx
Title:Vice President
Lending Office:
First Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
First Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-9
PNC BANK, NATIONAL ASSOCIATION
By: /s/Xxx X. Xxxxxxxxx
Name:Xxx X. Xxxxxxxxx
Title:Assistant Vice President
Lending Office:
PNC Bank, National Association
Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
PNC Bank, National Association
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-10
XXXXX FARGO BANK, N.A.
By: /s/Xxxxx X. Xxxxxxxxx
Name:Xxxxx X. Xxxxxxxxx
Title:Vice President
Lending Office:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-11
ABN AMRO BANK N.V.
By: /s/Xxxxxxx X. XxXxxxxx
Name:Xxxxxxx X. XxXxxxxx
Title:Group Vice President
By: /s/Xxxxxxxxx X. Xxxxxx
Name:Xxxxxxxxx X. Xxxxxx
Title:Vice President
Lending Office:
ABN AMRO Bank N.V.
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Loan Operations
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
ABN AMRO Bank N.V.
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X.X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-12
TORONTO DOMINION BANK (TEXAS), INC.
By: /s/Xxxxxxxx Xxxxxx
Name:Xxxxxxxx Xxxxxx
Title:Vice President
Lending Office:
Toronto Dominion Bank (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Toronto Dominion Bank (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-13
THE LONG TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:Senior Vice President and
Joint General Manager
Lending Office:
The Long Term Credit Bank of
Japan, Ltd.
Chicago Branch
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
The Long Term Credit Bank of
Japan, Ltd.
Chicago Branch
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S-14
BofA is a party to this Agreement solely as an Issuing Bank with
respect to Letters of Credit. BofA shall have no commitment to
make Loans, to hold or purchase a participation in any Letter of
Credit, or to issue any additional Letters of Credit hereunder.
Notwithstanding the foregoing, BofA shall be a "Bank", under the
provisions of this Agreement, with a Commitment Percentage of
zero percent (0%).
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Vice President
Address for payment:
Bank of America-Account
Administration
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for notices:
Bank of America-Account
Administration
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
