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CONFORMED COPY
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364-DAY
CREDIT AGREEMENT
dated as of
December 16, 1998
among
CONVERGYS CORPORATION
The Lenders Party Hereto
PNC BANK, NATIONAL ASSOCIATION,
NATIONSBANK, N.A. and
CITIBANK, N.A.
as Co-Syndication Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
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as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms........................................ 1
SECTION 1.02. Classification of Loans and Borrowings............... 18
SECTION 1.03. Terms Generally ..................................... 19
SECTION 1.04. Accounting Terms; GAAP............................... 19
ARTICLE II
The Credits
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SECTION 2.01. Commitments.......................................... 20
SECTION 2.02. Loans and Borrowings................................. 20
SECTION 2.03. Requests for Revolving Borrowings.................... 21
SECTION 2.04. Competitive Bid Procedure............................ 22
SECTION 2.05. Extension of Termination Date and/or 24
Maturity Date........................................
SECTION 2.06. Increase in Commitments.............................. 26
SECTION 2.07. Funding of Borrowings................................ 28
SECTION 2.08. Interest Elections................................... 29
SECTION 2.09. Termination and Reduction of
Commitments........................................ 30
SECTION 2.10. Repayment of Loans; Evidence of Debt................. 31
SECTION 2.11. Prepayment of Loans.................................. 32
SECTION 2.12. Fees................................................. 33
SECTION 2.13. Interest............................................. 34
SECTION 2.14. Alternate Rate of Interest........................... 35
SECTION 2.15. Increased Costs...................................... 36
SECTION 2.16. Break Funding Payments............................... 37
SECTION 2.17. Taxes................................................ 38
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs................................ 39
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders............................................ 42
SECTION 2.20. Swingline Loans...................................... 43
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ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers................................. 44
SECTION 3.02. Authorization; Enforceability........................ 45
SECTION 3.03. Governmental Approvals; No Conflicts................. 45
SECTION 3.04. Financial Condition; No Material Adverse
Change.............................................. 45
SECTION 3.05. Properties........................................... 46
SECTION 3.06. Litigation and Environmental Matters................. 46
SECTION 3.07. Compliance with Laws and Agreements.................. 47
SECTION 3.08. Investment and Holding Company Status................ 47
SECTION 3.09. Taxes................................................ 47
SECTION 3.10. ERISA................................................ 47
SECTION 3.11. Disclosure........................................... 47
SECTION 3.12. Use of Proceeds...................................... 48
SECTION 3.13. Subsidiaries......................................... 48
SECTION 3.14. Year 2000............................................ 48
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date....................................... 49
SECTION 4.02. Each Credit Event.................................... 50
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other
Information........................................ 51
SECTION 5.02. Notices of Material Events........................... 52
SECTION 5.03. Existence; Conduct of Business....................... 53
SECTION 5.04 Payment of Obligations............................... 53
SECTION 5.05. Maintenance of Properties; Insurance................. 53
SECTION 5.06. Books and Records; Inspection Rights................. 54
SECTION 5.07. Compliance with Laws................................. 54
SECTION 5.08. Use of Proceeds...................................... 54
SECTION 5.09. Future Guarantors.................................... 54
ARTICLE VI
Negative Covenants
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SECTION 6.01. Liens................................................ 55
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SECTION 6.02. Sale and Lease-Back Transactions..................... 56
SECTION 6.03. Fundamental Changes.................................. 56
SECTION 6.04. Transactions with Affiliates......................... 57
SECTION 6.05. Restrictive Agreements............................... 57
SECTION 6.06. Interest Coverage Ratio.............................. 57
SECTION 6.07. Consolidated Total Debt to
Consolidated Total Capitalization
Ratio.............................................. 58
ARTICLE VII
Events of Default.............................. 58
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ARTICLE VIII
The Administrative Agent........................... 61
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ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices.............................................. 64
SECTION 9.02. Waivers; Amendments.................................. 65
SECTION 9.03. Expenses; Indemnity;
Damage Waiver....................................... 66
SECTION 9.04. Successors and Assigns............................... 67
SECTION 9.05. Survival............................................. 70
SECTION 9.06. Counterparts; Integration;
Effectiveness...................................... 71
SECTION 9.07. Severability......................................... 71
SECTION 9.08. Right of Setoff...................................... 71
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process...................... 72
SECTION 9.10. WAIVER OF JURY TRIAL................................. 73
SECTION 9.11. Headings............................................. 73
SECTION 9.12. Confidentiality...................................... 73
SECTION 9.13. Interest Rate Limitation............................. 74
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SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiaries
Schedule 6.05 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D - Form of Indemnity, Subrogation and Contribution
Agreement
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364-DAY CREDIT AGREEMENT dated as of
December 16, 1998, among CONVERGYS CORPORATION, an
Ohio corporation, the LENDERS party hereto, PNC BANK,
NATIONAL ASSOCIATION, NATIONSBANK, N.A. and CITIBANK,
N.A., as Co-Syndication Agents, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this
Agreement, the following terms have the meanings specified
below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an
Administrative Questionnaire in a form supplied by the
Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
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"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"APPLICABLE RATE" means, for any day, with respect to any
Eurodollar Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurodollar Spread" or "Facility Fee Rate", as the case may
be, based upon the ratings by Xxxxx'x and S&P, respectively, applicable on such
date to the Index Debt:
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Eurodollar Facility Fee
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Index Debt Ratings: Spread Rate
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Category 1 .325% .075%
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A- or higher or A3 or higher
Category 2 .400% .100%
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BBB+ or Baa1
Category 3 .625% .125%
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BBB or Baa2
Category 4 .725% .150%
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BBB- and Baa3
Category 5 .800% .200%
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BB+ and Ba1
Category 6 1.000% .250%
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lower than BB+ or lower than
Ba1
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For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
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such rating agency shall be deemed to have established a rating in Category 6;
(ii) if the ratings established or deemed to have been established by Xxxxx'x
and S&P for the Index Debt shall fall within different Categories, then (A) if
both such ratings are at or above Category 4, the Applicable Rate shall be based
on the higher of the two ratings unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable Rate shall be
determined by reference to the Category next above that of the lower of the two
ratings and (B) if one or both of such ratings is below Category 4, the
Applicable Rate shall be determined by reference to the lower of the two
ratings; and (iii) if the ratings established or deemed to have been established
by Xxxxx'x and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of Xxxxx'x or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"ASSESSMENT RATE" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; PROVIDED that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
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"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Termination Date and the date
of termination of the Commitments.
"BASE CD RATE" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"BOARD" means the Board of Governors of the
Federal Reserve System of the United States of America.
"BORROWER" means Convergys Corporation, an Ohio
corporation.
"BORROWING" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"BORROWING REQUEST" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED that, when used in connection with a
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
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Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) the acquisition of direct or indirect Control of the Borrower by any Person
or group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Competitive
Loans or Swingline Loans.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and acquire participations in
Swingline Loans hereunder expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04 and (c) increased pursuant to Section 2.06. The
initial amount of each Lender's
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Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $600,000,000.
"COMPETITIVE BID" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"COMPETITIVE BID RATE" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"COMPETITIVE LOAN" means a Loan made pursuant to
Section 2.04.
"CONSOLIDATED EBITDA" means, for any fiscal period, with
respect to the Borrower and the Consolidated Subsidiaries, Consolidated Net
Income for such period PLUS, to the extent deducted in computing such
Consolidated Net Income, without duplication, the sum of (a) income tax expense,
(b) interest expense, (c) depreciation and amortization expense, (d) any
extraordinary or non-recurring losses and (e) other noncash items (other than
accruals) reducing Consolidated Net Income, MINUS, to the extent added in
computing such Consolidated Net Income, without duplication, the sum of (i)
interest income, (ii) any extraordinary or non-recurring gains and (iii) other
noncash items increasing Consolidated Net Income, all as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any fiscal period,
the aggregate of all payments by the Borrower and the Consolidated Subsidiaries
for such period that, in accordance with GAAP, are or should be included in
"interest paid, net of amounts capitalized" and "capital lease inter est paid"
reflected in the statement of cash flows for the Borrower and the Consolidated
Subsidiaries, less the amount of capital lease interest paid to the Borrower or
any Consolidated Subsidiary for such period that is not reflected in
Consolidated EBITDA for such period, all as determined on a consolidated basis
in accordance with GAAP.
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"CONSOLIDATED NET INCOME" means, for any fiscal period, net
income of the Borrower and the Consolidated Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means any Subsidiary that should be
consolidated with the Borrower for financial reporting purposes in accordance
with GAAP.
"CONSOLIDATED TOTAL CAPITALIZATION" means, on any date, the
sum of (a) Consolidated Total Debt and (b) stockholders' equity of the Borrower
and the Consolidated Subsidiaries, at such date, determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" means, at any date, all Indebtedness
of the Borrower and the Consolidated Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"CONTRIBUTION AGREEMENT" means the indemnity, subrogation and
contribution agreement, substantially in the form of Exhibit D, to be entered
into by the Administrative Agent, the Borrower and the Guarantors.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the
United States of America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
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"ENVIRONMENTAL LAWS" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or
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Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"EVENT OF DEFAULT" has the meaning assigned to
such term in Article VII.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds
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transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FIXED RATE" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"FIXED RATE LOAN" means a Competitive Loan bearing
interest at a Fixed Rate.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such
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Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"GUARANTEE AGREEMENT" means the guarantee agreement,
substantially in the form of Exhibit C, to be entered into by the Administrative
Agent and the Guarantors.
"GUARANTOR" means any of (a) Convergys Information Management
Group Inc., a wholly owned Subsidiary, (b) Convergys Customer Management Group
Inc., a wholly owned Subsidiary, (c) any indirect Subsidiary that on the date
hereof has outstanding any Indebtedness (other than Intercompany Indebtedness
and Indebtedness of the type described in clauses (d), (e) and (h) of the
definition of "Indebtedness"), and (d) each Subsidiary that shall become a party
to the Guarantee Agreement pursuant to Section 5.09.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are
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customarily paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEX DEBT" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated November 1998 relating to the Borrower and the Transactions.
"INTERCOMPANY INDEBTEDNESS" means any Indebtedness
of any Subsidiary which is owing to the Borrower or any
other Subsidiary.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period
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applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to a Swingline Loan,
the day that such Loan is required to be repaid.
"INTEREST PERIOD" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender, nine or twelve months)
thereafter, as the Borrower may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 360
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; PROVIDED, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
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"LENDERS" means (a) the Persons listed on Schedule 2.01, (b)
any other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance and (c) any Person that shall have
become a party hereto pursuant to Section 2.06. Unless the context requires
otherwise, the term "Lenders" includes the Swingline Lenders.
"LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement and any promissory note
issued hereunder, the Guarantee Agreement and the Contribution Agreement.
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"LOANS" means the loans, including Swingline Loans, made by
the Lenders to the Borrower pursuant to this Agreement.
"MARGIN" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform any of its obligations under this Agreement
or (c) the rights of or benefits available to the Lenders under this Agreement.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $15,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements provided for in such Hedging
Agreements) that the Borrower or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
"MATURITY DATE" means the Termination Date, unless
extended pursuant to Section 2.05.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
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"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not
yet due or are being contested in compliance with
Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
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"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the total Revolving Credit Exposures and unused Commitments at such time;
PROVIDED that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its Swingline Exposure at such time.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"SPIN-OFF" means the distribution by Cincinnati Xxxx, Inc., an
Ohio corporation, of 90.2% of the capital stock of the Borrower, all as
described in the Registration
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Statement on Form S-1, as amended prior to the date hereof, filed by the
Borrower with the Securities and Exchange Commission on May 26, 1998.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any
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Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"SWINGLINE LENDERS" means The Chase Manhattan
Bank, Bank of America, National Trust & Savings Association and Citibank, N.A.,
in their capacity as lenders of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to
Section 2.20.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERMINATION DATE" means December 15, 1999, unless
extended pursuant to Section 2.05.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"TRANSACTIONS" means (a) the execution, delivery and
performance by the Borrower of this Agreement, the borrowing of Loans and the
use of the proceeds thereof and (b) the execution, delivery and performance by
the Guarantors of the Guarantee Agreement.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
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"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class
and Type (E.G., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Revolving Borrowing") or by Type
(E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrower notifies the Administrative
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Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Commitment or (b) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; PROVIDED
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each
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Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement; PROVIDED FURTHER, that in exercising such option, each
Lender shall comply with its obligation under Section 2.19(a).
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. Each Competitive Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline
Loan shall be in an aggregate amount that is an integral multiple of $1,000,000
and not less than $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; PROVIDED that there shall not at any time be more
than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing that is not a
Swingline Loan, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
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(i) the aggregate amount of the requested
Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. COMPETITIVE BID PROCEDURE. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; PROVIDED
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans shall not exceed the total
Commitments. To request Competitive Bids, the Borrower shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; PROVIDED that the Borrower may submit
no more than one Competitive Bid Request on the same day and a Competitive Bid
Request shall not be made within five Business Days after the date of any
previous Competitive Bid
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Request, unless any and all such previous Competitive Bid Requests shall have
been withdrawn or all Competitive Bids received in response thereto rejected.
Each such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested
Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the
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principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing re quested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; PROVIDED that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; PROVIDED FURTHER that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
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provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. EXTENSION OF TERMINATION DATE AND/OR MATURITY
DATE. (a) The Borrower may, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders) given not less than 45 days and
not more than 60 days prior to the Termination Date then in effect, request that
the Lenders extend the Termination Date for an additional period of not more
than 364 days as specified in such notice. Any such notice shall specify any
fees that the Borrower agrees to pay as consideration for such extension, any
changes to the Applicable Rates that will apply during the term of such
extension and the amendments, if any, to the covenants contained herein or other
provisions hereof proposed by the Borrower to be applicable during the term of
such extension. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not earlier than the 30th day and not later than the
25th day prior to the Termination Date then in effect, advise the Borrower
whether or not it agrees to such extension on the terms set forth in such
notice. Any Lender that has not so advised the Administrative Agent by such day
shall be deemed to have declined to agree to such extension.
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(b) If the Borrower shall have requested and the Lenders shall
have agreed to an extension of the Termination Date, then the Termination Date
shall be extended for the additional period and on the terms specified in the
Borrower's notice provided for under subsection (a) and, if such terms vary from
those contained in this Agreement, the Borrower and the extending Lenders shall
enter into an amendment to this Agreement to be effective as of the Termination
Date in effect prior to such extension pursuant to which such terms shall be
given effect.
(c) The decision to agree or withhold agreement to any
extension of the Termination Date hereunder shall be at the sole discretion of
each Lender. The Commitment of any Lender that has declined to agree to any
requested extension of the Termination Date (a "Non-Extending Lender") shall
terminate on the Termination Date in effect prior to giving effect to any such
extension (the "Existing Termination Date"), and the principal amount of any
outstanding Loans made by such Lender, together with any accrued interest
thereon, and any accrued fees and other amounts payable hereunder shall be due
and payable on the Existing Termination Date. Notwithstanding the foregoing,
pursuant to Section 2.19(b), the Borrower shall have the right to replace a
Non-Extending Lender with a Lender or other financial institution that will
agree to an extension of the Termination Date.
(d) The Borrower may, at its sole option, by notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
Lenders) given not less than 10 days and not more than 60 days prior to the
Termination Date at any time in effect, extend the Maturity Date to a date not
later than the first anniversary of such Termination Date. Loans repaid or
prepaid after the Termination Date may not be reborrowed (except in the case of
a refinancing of a Eurodollar Revolving Loan with another Revolving Loan at the
time of such repayment or prepayment).
SECTION 2.06. INCREASE IN COMMITMENTS. (a) The Borrower may on
one occasion at any time not later than three months prior to the Termination
Date, by written notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders), request that the total Commitments be
increased by an amount not in excess of $100,000,000. Such notice shall set
forth the amount of the requested increase in the total Commitments and the date
on
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which such increase is requested to become effective (which shall be not less
than 30 days or more than 60 days after the date of such notice), and shall
offer each Lender the opportunity to increase its Commitment by its Applicable
Percentage of the proposed increased amount. Each Lender shall, by notice to the
Borrower and the Administrative Agent given not more than 30 days after the date
of the Borrower's notice, either agree to increase its Commitment by all or a
portion of the offered amount (each Lender so agreeing being an "INCREASING
LENDER") or decline to increase its Commitment (and any Lender that does not
deliver such a notice within such period of 30 days shall be deemed to have
declined to increase its Commitment) (each Lender so declining or deemed to have
declined being a "NON-INCREASING LENDER"). In the event that, on the 30th day
after the Borrower shall have delivered a notice pursuant to the first sentence
of this paragraph, the Lenders shall have agreed pursuant to the preceding
sentence to increase their Commitments by an aggregate amount less than the
increase in the total Commitments requested by the Borrower, the Administrative
Agent may arrange for one or more banks or other financial institutions (any
such bank or other financial institution referred to in this clause (a) being
called an "AUGMENTING LENDER"), which may include any Lender, to extend
Commitments or increase their existing Commitments in an aggregate amount equal
to the unsubscribed amount, PROVIDED that each Augmenting Lender, if not already
a Lender hereunder, shall be subject to the approval of the Borrower and the
Administrative Agent (which approvals shall not be unreasonably withheld) and
each Augmenting Lender shall execute all such documentation as the
Administrative Agent shall specify to evidence its Commitment and its status as
a Lender hereunder. Increases and new Commitments created pursuant to this
clause (a) shall become effective on the date specified in the notice delivered
by the Borrower pursuant to the first sentence of this paragraph.
Notwithstanding the foregoing, no increase in the total Commitments (or in the
Commitment of any Lender) shall become effective under this paragraph unless,
(i) on the date of such increase, the conditions set forth in paragraphs (a) and
(b) of Section 4.02 shall be satisfied (with all references in such paragraphs
to a Borrowing being deemed to be references to such increase) and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower, (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Lenders) documents consistent with those delivered on the
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Effective Date under clauses (b) and (c) of Section 4.01 as to the corporate
power and authority of the Borrower to borrow hereunder after giving effect to
such increase and (iii) following any such increase pursuant to this Section, no
Lender shall have a Commitment representing more than 30% of the total
Commitments.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of
any increase in the total Commitments pursuant to Section 2.06(a) (the
"COMMITMENT INCREASE"), (i) the aggregate principal amount of the Loans
outstanding (the "INITIAL LOANS") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Lender prior to the Commitment Increase shall pay to the Administrative Agent in
same day funds an amount equal to the difference between (A) the product of (1)
such Lender's Applicable Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings
(as hereinafter defined) and (B) the product of (1) such Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall pay to
Administrative Agent in same day funds an amount equal to the product of (1)
such Augmenting Lender's Applicable Percentage (calculated after giving effect
to the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, and (iv) after the Administrative Agent receives the funds specified
in clauses (ii) and (iii) above, the Administrative Agent shall pay to each
Non-Increasing Lender the portion of such funds that is equal to the difference
between (A) the product of (1) such Non-Increasing Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, and (B) the product of (1)
such Non-Increasing Lender's Applicable Percentage (calculated after giving
effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase,
the Borrower shall be deemed to have made new Borrowings (the "SUBSEQUENT
BORROWINGS") in an aggregate principal amount equal to the aggregate principal
amount of the Initial Loans and of the types and for the Interest Periods
specified in a Borrowing Request delivered to the Administrative Agent in
accordance with Section 2.03, (vi) each Non-Increasing Lender, each Increasing
Lender and
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each Augmenting Lender shall be deemed to hold its Applicable Percentage of each
Subsequent Borrowing (calculated after giving effect to the Commitment Increase)
and (vii) the Borrower shall pay each Increasing Lender and each Non-Increasing
Lender any and all accrued but unpaid interest on the Initial Loans. The deemed
payments made pursuant to clause (i) above in respect of each Eurodollar Loan
shall be subject to indemnification by the Borrower pursuant to the provisions
of Section 2.16 if the Increase Effective Date occurs other than on the last day
of the Interest Period relating thereto.
SECTION 2.07. FUNDING OF BORROWINGS. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.20. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing Request
or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the
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Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08. INTEREST ELECTIONS. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless previously terminated, the Commitments shall terminate on the Termination
Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; PROVIDED that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $1,000,000 and
not less than $10,000,000 and (ii) the Borrower shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposure
plus
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the aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; PROVIDED that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the
account of the applicable Lenders the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan
and (iii) to the applicable Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of the Maturity Date and the first date after
such Swingline Loan is made that is the 15th or last day of a calendar month and
is at least two Business Days after such Swingline Loan is made; PROVIDED that
on each date that a Revolving Borrowing or Competitive Borrowing is funded, the
Borrower shall repay all Swingline Loans that were outstanding on the date the
relevant notice of Borrowing for such Revolving Borrowing or Competitive
Borrowing was delivered.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
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(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section; PROVIDED that the Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of a prepayment of a Swingline Loan, the applicable Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later
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than 11:00 a.m., New York City time, one Business Day before the date of
prepayment or (iii) in the case of a prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; PROVIDED that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the date on which such Commitment terminates; PROVIDED
that, if such Lender continues to have any Revolving Loans outstanding after its
Commitment terminates, then such facility fee shall continue to accrue on the
daily principal amount of such Lender's outstanding Revolving Loans from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Loans outstanding. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
PROVIDED that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) For any day on which the outstanding principal amount of
Loans shall be greater than 50% of the
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total Commitments (or, following the date on which the Commitments terminate,
50% of the total Commitments on such date), the Borrower shall pay to the
Administrative Agent for the account of each Lender a utilization fee equal to
0.125% per annum on the aggregate amount of each Lender's outstanding Loans on
such day. The utilization fees, if any, in respect of any fiscal quarter shall
be payable in arrears on the last day of each March, June, September and
December and on the date on which the Commitments terminate and, if Loans remain
outstanding after such date and if the outstanding principal amount of Loans on
the date the Commitments terminate was greater than 50% of the total Commitments
in effect on such date, on the last day of each March, June, September and
December and on the Maturity Date. All utilization fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans
comprising each ABR Borrowing (including each Swingline
Loan) shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus (or minus, as applicable)
the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other
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amount payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable
to such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; PROVIDED that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If
prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
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(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; PROVIDED that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. INCREASED COSTS. (a) If any
Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of
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any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by, such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered. It is acknowledged
that this Agreement is being entered into by the Lenders on the understanding
that the Lenders will not be required to maintain capital against their
Commitments under currently applicable laws, regulations and regulatory
guidelines. In the event the Lenders shall otherwise determine that such
understanding is incorrect, it is agreed that the Lenders will be entitled to
make claims under this paragraph (b) based upon market requirements prevailing
on the date hereof for commitments under comparable credit facilities against
which capital is required to be maintained.
(c) A certificate of a Lender setting forth in reasonable
detail the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; PROVIDED that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
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costs or reductions and of such Lender's intention to claim compensation
therefor; PROVIDED FURTHER that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.19, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the
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eurodollar market. A certificate of any Lender setting forth in reasonable
detail any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate in reasonable detail as to the amount of such payment
or liability delivered to the Borrower by a Lender, or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a
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Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) (i) If at any time insufficient funds are received by and
available to the Administrative Agent to pay
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fully all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (x) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (y) second, towards
payment of principal then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties.
(ii) For purposes of determining the available Commitments of
the Lenders at any time, each outstanding Competitive Borrowing shall be deemed
to have utilized the Commitments of the Lenders (including those Lenders which
shall not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Swingline Loans; PROVIDED that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a
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participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.07(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
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hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender shall not agree to a requested extension of the Maturity Date
pursuant to Section 2.05, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); PROVIDED that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and if a Commitment is being assigned, the Swingline Lenders), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 2.20. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$15,000,000 or (ii) the sum of the
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total Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans exceeding the total Commitments; PROVIDED that no
Swingline Lender shall be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the applicable Swingline Lender of any
such notice received from the Borrower. The applicable Swingline Lender shall
make each Swingline Loan available to the Borrower by means of a credit to the
general deposit account of the Borrower with such Swingline Lender by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) Any Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding from such Swingline
Lender. Such notice shall specify the aggregate amount of Swingline Loans in
which Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender, specifying in such
notice such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the
applicable Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in
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Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the applicable Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the applicable
Swingline Lender. Any amounts received by any Swingline Lender from the Borrower
(or other party on behalf of the Borrower) in respect of a Swingline Loan after
receipt by such Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant
to this paragraph and to such Swingline Lender, as their interests may appear.
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within the Borrower's or Guarantor's, as the case may be, corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. Each of the Loan Documents has been duly executed and
delivered by the Borrower or the Guarantors, as applicable, and constitutes a
legal, valid
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and binding obligation of the Borrower or the Guarantors, as applicable,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended December 31, 1997, reported on by Coopers &
Xxxxxxx L.L.P., independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended September 30, 1998,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 31, 1997, there has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid
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leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) Except
for Disclosed Matters, there are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any
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Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves in accordance with GAAP
and (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $1,000,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $5,000,000 the
fair market value of the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the
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Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, when taken as a whole, not
misleading; PROVIDED that, with respect to projected financial information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. USE OF PROCEEDS. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock (within the meaning of Regulation
T, U or X of the Board) and no part of the proceeds of any Loan will be used to
buy or carry any margin stock.
SECTION 3.13. SUBSIDIARIES. Schedule 3.13 contains an accurate
list of all of the material Subsidiaries of the Borrower on the date hereof,
setting forth their respective jurisdictions of organization and the percentage
of their respective ownership interest held by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of such
material Subsidiaries have been duly authorized and issued and are fully paid
and non-assessable.
SECTION 3.14. YEAR 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
and each Subsidiary's computer systems and equipment containing embedded
microchips (including, to the best of the Borrower's knowledge after reasonable
inquiry, systems and equipment supplied by others or with which the Borrower's
or such Subsidiary's systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by September 30, 1999. The cost
to the Borrower or any Subsidiary of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Borrower or any such
Subsidiary (including, without limitation, to the best of the Borrower's
knowledge after reasonable inquiry, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the
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reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Borrower and its Subsidiaries
are and, with ordinary course upgrading and maintenance, will continue for the
term of this Agreement to be, sufficient to permit the Borrower and its
Subsidiaries to conduct its business without a Material Adverse Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have
received from each Guarantor either (i) a counterpart of each of the
Guarantee Agreement and the Contribution Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature
page of each of the Guarantee Agreement and the Contribution Agreement)
that such party has signed a counterpart of the Guarantee Agreement and
the Contribution Agreement.
(c) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of (i) Frost & Xxxxxx LLP and (ii)
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Borrower, substantially in
the form of Exhibit B, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Required
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Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinions.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower and the Guarantors, the authorization of the
Transactions and any other legal matters relating to the Borrower and
the Guarantors, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(e) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(g) There shall be no litigation or administrative proceeding
that would reasonably be expected to have a Material Adverse Effect.
(h) The Lenders shall have received (i) pro forma financial
information giving effect to the Spin-Off and (ii) three-year
projections for the Borrower.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 23, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any
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Borrowing is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) After giving effect to such Borrowing, the aggregate
amount of such Borrowing, together with all other short term and medium
term borrowings by the Borrower, will not exceed the aggregate amount
of short term and medium term borrowings authorized by the resolutions
of the Board of Directors of the Borrower.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated in whole
and the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full, the Borrower covenants and agrees with the Lenders
that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Coopers &
Xxxxxxx L.L.P. or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial
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statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.06 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
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(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The
Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000;
(d) any change in the date of its fiscal year end;
and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; PROVIDED that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
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SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS. The proceeds of the Loans will
be used only for general corporate purposes
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(including working capital needs, refinancing Indebtedness, providing commercial
paper back-up and financing acquisitions that are approved by the board of
directors, or other governing body, of the target entity before the acquiror
commences a tender offer, proxy solicitation or similar action with respect to
the target's voting capital stock). No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.09. FUTURE GUARANTORS. The Borrower will promptly
cause each (a) direct Subsidiary not in existence (or not a direct Subsidiary)
on the date hereof and (b) indirect Subsidiary not in existence (or not an
indirect Subsidiary or not an indirect Subsidiary that has incurred the type of
Indebtedness described below) on the date hereof that has created, incurred or
permitted to exist any Indebtedness (other than Intercompany Indebtedness and
Indebtedness of the type described in clauses (d), (e) and (h) of the definition
of "Indebtedness"), in each case to become a party to the Guarantee Agreement
and the Contribution Agreement and to assume all of the obligations of a
Guarantor under each such agreement.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated in whole and
the principal of and interest on each Loan and all fees payable hereunder have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. LIENS. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof; PROVIDED that (i) such Lien
shall not apply to any other property or asset of the Borrower or any
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Subsidiary, (ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof
and (iii) all such Liens secure obligations having an aggregate
principal amount not exceeding at any time $5,000,000;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
PROVIDED that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof; and
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (i) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Indebtedness secured thereby
does not exceed 90% of the cost of acquiring, constructing or improving
such fixed or capital assets and (iii) such security interests shall
not apply to any other property or assets of the Borrower or any
Subsidiary.
SECTION 6.02. SALE AND LEASE-BACK TRANSACTIONS. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except to the extent the aggregate sales
price for the assets transferred in all such arrangements in effect at any time
does not exceed
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$15,000,000; PROVIDED that on or prior to December 31, 1999, the Borrower may,
and may permit its Subsidiaries to, enter into such an arrangement in an amount
not to exceed $100,000,000 for the sole purpose of enabling the Borrower to take
advantage of a capital loss carryforward.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.04. TRANSACTIONS WITH AFFILIATES. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate and (c) dividends or other distributions (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower
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or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
SECTION 6.05. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
PROVIDED that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement and (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule
6.05 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition).
SECTION 6.06. INTEREST COVERAGE RATIO. The Borrower will not
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for any period of four consecutive fiscal quarters, to be
less than 4.0 to 1.00.
SECTION 6.07. CONSOLIDATED TOTAL DEBT TO CONSOLIDATED TOTAL
CAPITALIZATION RATIO. The Borrower will not permit the ratio of (a) Consolidated
Total Debt to (b) Consolidated Total Capitalization, in each case at any time,
to be greater than 0.6 to 1.0.
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ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document
or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made or
deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material
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Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
PROVIDED that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the
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benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $15,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) the Guarantee Agreement or any provision thereof shall be
declared to be unenforceable or null and void or any Guarantor or any
person acting by or on behalf of such Guarantor shall deny or disaffirm
any of such Guarantor's obligations under the Guarantee Agreement or
any Guarantor shall fail to perform or observe any term, covenant or
agreement on its part to be performed or observed pursuant to the
Guarantee Agreement;
(n) a Change in Control shall occur; or
(o) the Spin-Off shall not have been consummated on or prior
to January 31, 1999 on terms consistent in all material respects with
the pro forma financial information and projections described in
paragraph (h) of Section 4.01.
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
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Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
Each bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
It is understood that the Co-Syndication Agents do not have
any duties or responsibilities under this Agreement (other than in their
capacity as a Lender). The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) neither the Administrative Agent nor the
Documentation
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Agent shall be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may
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consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein or in any other Loan Document shall be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 X. Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention of Xxxxxx X.
Xxxxx (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxxxx Xxxxxxx (Telecopy No.
(000) 000-0000);
(c) if to the Swingline Lenders, to (i) The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxxxx Xxxxxxx (Telecopy No.
(000) 000-0000); (ii) NationsBank, N.A., 000 X. Xxxxx Xxxxxx,
Xxxxxxxxx, X.X. 00000, Attention of Xxxx Xxxxxxxx (Telecopy No. (704)
388-0960 or (iii) Citibank, N.A., 000 Xxxx Xxxxxx, Xxx
00
00
Xxxx, XX 00000, Attention of Xxxxxxxxx Xxxxxxxx (Telecopy No. (212)
793-6873; and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under any other Loan Document are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders; PROVIDED that no such agreement shall (i)
increase the Commitment of any Lender, including pursuant to Section 2.06,
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written
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consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the Maturity Date or the scheduled date of expiration of
any Commitment, including pursuant to Section 2.05 (PROVIDED that nothing herein
shall limit the right of the Borrower to extend the Maturity Date pursuant to
Section 2.05(d) without the consent of any Lender), without the written consent
of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder or
(vi) release any Guarantor from its Guarantee obligations under the Guarantee
Agreement, or limit its liability in respect of such Guarantee obligations,
without the written consent of each Lender; PROVIDED FURTHER that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Swingline Lenders hereunder without the prior
written consent of the Administrative Agent or the Swingline Lenders, as the
case may be.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
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(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "INDEMNITEE") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated thereby, (ii) any Loan or
the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; PROVIDED that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Swingline Lenders
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent or the Swingline Lenders, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lenders in their capacity as
such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in
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connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its Swingline Exposure, the Swingline Lenders) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive
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Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and PROVIDED FURTHER that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender
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and an assignee, the assignee's completed Administrative Questionnaire (unless
the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent or the Swingline Lenders, sell participations to one or
more banks or other entities (a "PARTICIPANT") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); PROVIDED that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; PROVIDED that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is
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made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrower or the Guarantors in the
Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under any Loan Document is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans or the termination
of the Commitments or of this Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a
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single contract. This Agreement and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) This Agreement shall be
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construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or any other Loan Document or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
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OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "INFORMATION" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; PROVIDED that, in the case of information received
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from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"), shall
exceed the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CONVERGYS CORPORATION,
by
/s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: VP Finance & Treasurer
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THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ Xxxx X. Mix
------------------------------
Name: Xxxx X. Mix
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
individually and as Co-Syndication
Agent,
by
/s/ X. X. Xxxxxxxxxx
------------------------------
Name: C. Xxxxxx Xxxxxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A., individually and
as Co-Syndication Agent,
by
/s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
CITIBANK, N.A., individually and as
Co-Syndication Agent,
by
/s/ X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
BANKERS TRUST COMPANY,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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THE BANK OF NEW YORK,
by
/s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx XxXxxxx
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS, CHICAGO
BRANCH,
by
/s/ Xxxxxx Xxxxxx Du Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President
& General Mgr.
by
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Manager
COMMERZBANK AKTIENGESELLSCHAFT,
by
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
by
/s/ Rie Ando
-----------------------------------
Name: Rie Ando
Title: Assistant Treasurer
FIFTH THIRD BANK,
by
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK,
by
/s/ Xxxxxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx Xxxxxx
Title: Vice President
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NBD BANK,
by
/s/ Xxxxx X. With
-----------------------------------
Name: Xxxxxx X. With
Title: First Vice President
STAR BANK, NATIONAL ASSOCIATION,
by
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SUNTRUST BANK CENTRAL FLORIDA, N.A.,
by
/s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
TORONTO DOMINION (TEXAS), INC.,
by
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
88
BANKBOSTON, N.A.,
by
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
89
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
December 16, 1998 (as amended and in effect on the date hereof, the "Credit
Agreement"), among Convergys Corporation, the Lenders named therein, PNC Bank,
National Association, NationsBank, N.A. and Citibank, N.A., as Co-Syndication
Agents, and The Chase Manhattan Bank, as Administrative Agent for the Lenders.
Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the Assignment Date and Revolving Loans owing to the Assignor
which are outstanding on the Assignment Date but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the Assigned Interest, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.17(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The parties hereto shall pay the fee payable to
the Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
90
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned
of
Facility/Commitment
Principal Amount (set forth, to at
Assigned (and least 8 decimals,
identifying as a percentage of
information as the Facility and
to individual the aggregate
Competitive Commitments of all
Facility Loans) Lenders Thereunder)
----------------- ---------------- -------------------
Commitment $ %
Assigned:
Revolving Loans:
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as
---------------------
Assignor
By: __________________________
Name:
Title:
91
[Name of Assignee] , as
---------------------
Assignee
By: __________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
Convergys Corporation The Chase Manhattan Bank,
as Administrative Agent,
By: _____________________ By: _____________________
Name: Name:
Title: Title:
92
EXHIBIT B
(000) 000-0000
December 16, 1998
The Chase Manhattan Bank, as
Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Securities Inc., as Lead Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders party to the Credit
Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel for Convergys Corporation, a corporation organized
under the laws of the State of Ohio (the "Borrower"), in connection with (a)
extensions of credit to the Borrower pursuant a 364-Day Credit Agreement of even
date herewith (the "Credit Agreement") between the Borrower, the lenders party
thereto (the "Lenders"), PNC Bank, National Association, NationsBank, N.A., and
Citibank, N.A., as Co-Syndication Agents, and The Chase Manhattan Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and (b) the Contribution Agreement of even date herewith among the
Borrower, the Guarantors (as defined below) and the Administrative Agent. We
also have represented Convergys Customer Management Group Inc., a corporation
organized under the laws of the State of Ohio ("CMG"), and Convergys Information
Management Group Inc., a corporation organized under the laws of the State of
Ohio ("IMG"), in connection with the Guarantee Agreement and the Contribution
Agreement (the "Guarantee Documents"). CMG and IMG are sometimes hereinafter
referred to as the "Guarantors". The Credit Agreement, the Contribution
Agreement and all other documents executed by the Borrower in connection with
the Transaction (as defined below) are sometimes hereinafter referred to as the
"Credit Documents". The execution, delivery and performance by the Borrower of
the Credit Documents and the execution, delivery and performance by the
Guarantors of the Guarantee Documents is sometimes hereinafter referred to as
the "Transaction".
00
Xxx Xxxxx Xxxxxxxxx Bank
December 16, 1998
Page 2
This opinion is given to you pursuant to Section 4.01 of the Credit
Agreement. Capitalized terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings given those terms in the Credit
Agreement.
In connection with this opinion, we have examined certificates of officers
of the Borrower and the Guarantors (the "Officer's Certificates"). We also have
examined the Credit Documents, the Guarantee Documents and such certificates of
public officials, corporate documents and records and other certificates,
opinions and instruments and have made such other investigations as we have
deemed necessary in connection with the opinions hereinafter set forth.
In rendering the opinions set forth herein, we have assumed, other than as
to the Borrower and the Guarantors, (i) the due authorization, execution and
delivery of the Credit Documents and the Guarantee Documents and (ii) that the
Credit Documents and Guarantee Documents constitute the valid and binding
obligations of all parties to the Credit Documents and Guarantee Documents under
applicable law. Further, we have assumed the authenticity of all documents
submitted to us as originals, the legal capacity of all parties signing such
documents, the genuineness of the signatures on such documents, and the
conformity to original documents of all photostatic copies of such documents
submitted to us. Finally, we have assumed that the records of the proceedings of
the directors of the Borrower and the Guarantors contained in the minute books
furnished to us by the Borrower and the Guarantors are complete and accurate,
and include all such records and reflect actions duly and validly taken by the
directors of the Borrower and the Guarantors.
The opinions hereinafter expressed are subject to the following additional
qualifications:
(i) The enforceability of the Credit Documents and the Guarantee Documents
is subject to and may be affected by applicable state and/or federal bankruptcy,
insolvency, reorganization, equity of redemption, moratorium laws, or similar
laws affecting the rights of creditors or debtors generally, and the application
of general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and matters of public policy,
including without limitation, concepts of materiality, reasonableness, good
faith and fair dealing.
(ii) No opinion is expressed as to the validity, binding effect or
enforceability of (a) self-help provisions, (b) waivers of constitutional
rights, (c) provisions waiving the right to trial by jury, waiving rights to
automatic stay, relating to venue, purporting to establish evidentiary standards
or specifying that provisions may be waived only in writing, (d) warrants of
attorney to confess judgment, (e) provisions related to waiver of remedies (or
the delay or omission of enforcement thereof), disclaimers, liability
limitations with respect to third parties, powers of attorney, liquidated
damages or the creation of remedies not available under Ohio law, (f) provisions
pursuant to which the Lender attempts to exempt itself from liability for its
own
00
Xxx Xxxxx Xxxxxxxxx Bank
December 16, 1998
Page 3
negligence, fault or actions, or providing for indemnification against criminal
liability, civil penalties or punitive damages or against actions to the extent
that the indemnitee has been grossly negligent or engaged in willful misconduct,
(g) provisions requiring the payment of attorney's fees or litigation expenses,
or (h) provisions which purport (1) to require the payment of interest on
interest or (2) compensate any party for loss or expense in excess of actual
loss or reasonable expenses or which constitute a penalty.
As used herein, the phrases "to our knowledge", "known to us" or similar
phrases mean we have relied solely upon: (i) the Officer's Certificates, (ii)
the representations contained in the Credit Documents and the Guarantee
Documents and (iii) the actual knowledge of the limited number of attorneys in
this firm who regularly perform legal services for the Borrower and the
Guarantors obtained in the scope of such representation and without (unless
expressly described herein) any independent investigation or inquiry, and no
inference as to our knowledge concerning factual matters should or may be drawn.
The phrases "corporate power" and "validly existing" refer to and are
limited by Chapter 1701 of the Ohio Revised Code and the Articles of
Incorporation and Regulations of the Borrower.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Borrower and each of the Guarantors are corporations validly
existing and in good standing under the laws of the State of Ohio.
2. The Borrower and each of the Guarantors are qualified to do business and
are in good standing as foreign corporations in all jurisdictions where the
failure to be so qualified would have a material adverse effect upon the
Borrower, the Guarantors or the transactions contemplated by the Credit
Documents and the Guarantee Documents.
3. The Borrower has the corporate power to execute and deliver each of the
Credit Documents and to perform its obligations thereunder. Each Guarantor has
the corporate power to execute and deliver each of the Guarantee Documents and
to perform its obligations thereunder.
4. Each of the Credit Documents has been duly authorized by all necessary
corporate action, including, if required, stockholder action, and has been duly
executed and delivered on behalf of the Borrower. Each of the Guarantee
Documents has been duly authorized by all necessary corporate action, including,
if required, stockholder action, and has been duly executed and delivered on
behalf of the Guarantors.
5. Each of the Credit Documents constitutes the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their terms. Each of the
00
Xxx Xxxxx Xxxxxxxxx Bank
December 16, 1998
Page 4
Guarantee Documents constitutes the legal, valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their terms.
6. The execution and delivery of the Credit Documents by the Borrower, and
the performance of the terms thereof by the Borrower, do not violate or
constitute on the part of the Borrower a breach or default under (a) its
Articles of Incorporation or Regulations, or (b) to our knowledge, any of the
following: (i) any agreements to which the Borrower is a party or by which it
may be bound (provided, however, that no analysis has been made with respect to
compliance with or effects upon financial ratios, tests or covenants or the
like), (ii) any applicable provisions of statutory law or regulation to which
the Borrower is subject (iii) any order, judgment or decree of any court or
governmental agency or authority of Ohio to which the Borrower is subject. The
execution and delivery of the Guarantee Documents by the Guarantors, and the
performance of the terms thereof by the Guarantors, do not violate or constitute
on the part of either of the Guarantors a breach or default under (a) its
Articles of Incorporation or Regulations, or (b) to our knowledge, any of the
following: (i) any agreements to which either of the Guarantors is a party or by
which it may be bound (provided, however, that no analysis has been made with
respect to compliance with or effects upon financial ratios, tests or covenants
or the like), (ii) any applicable provisions of statutory law or regulation to
which either of the Guarantors is subject (iii) any order, judgment or decree of
any court or governmental agency or authority of Ohio to which either of the
Guarantors is subject.
7. To our knowledge and except to the extent disclosed in Borrower's
reports and filings made pursuant to the Securities Exchange Act of 1934, as
amended, there are no actions, suits, proceedings or governmental investigations
pending before any arbitrator, court or governmental agency or authority or
overtly threatened in writing, against the Borrower or any of its Subsidiaries
(a) which would reasonably be expected to result in a Material Adverse Effect in
the financial condition of the Borrower or any of its Subsidiaries or (b) that
involve the Credit Documents, the Guarantee Documents or the Transaction.
8. No approval, authorization or other action by, or filing with, any
governmental body or governmental agency or authority (which has not been
obtained) is required in connection with the execution and delivery by the
Borrower any of the Credit Documents and the performance of the terms thereof by
the Borrower; and the transaction will not result in the creation or imposition
of any lien on any asset of the Borrower or any of its Subsidiaries. No
approval, authorization or other action by, or filing with, any governmental
body or governmental agency or authority (which has not been obtained) is
required in connection with the execution and delivery by the Guarantors of
either of the Guarantee Documents and the performance of the terms thereof by
the Guarantors.
9. Neither the Borrower nor any of its Subsidiaries is: (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding
00
Xxx Xxxxx Xxxxxxxxx Bank
December 16, 1998
Page 5
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
10. The execution, delivery and performance of the Credit Documents, the
borrowings under the Credit Agreement and the use of the proceeds thereof in
accordance with the terms of the Credit Agreement will not violate or be
inconsistent with any of the provisions of Regulation U or Regulation G of the
Board of Governors of the Federal Reserve System of the United States and all
official rulings and interpretations thereunder or thereof.
The opinions expressed herein are limited to the laws (excluding principles
of conflicts of law) of the State of Ohio and the Federal laws of the United
States. To the extent that the Credit Documents and the Guarantee Documents are
not governed by Ohio law, we assume that the governing law is in all material
respects identical to the law of the State of Ohio.
This opinion is given solely for the use and benefit of the Lenders and the
Administrative Agent and each of their successors and assigns under the Credit
Documents and Guarantee Documents in connection with the loans contemplated by
the Credit Agreement and may not be relied upon for any other purpose or by any
other party or entity. This opinion speaks as of its date only and is based upon
facts and law in existence on the date hereof and we disclaim any undertaking to
advise you of changes occurring therein after the date hereof.
Very truly yours,
/s/ Frost & Xxxxxx LLP
97
OFFICER'S CERTIFICATE
The undersigned, Xxxxxxx X. Xxxxxxx, III, Secretary of Convergys
Corporation (the "Borrower"), for the purpose of enabling and inducing Frost &
Xxxxxx to issue its legal opinion, a copy of which is attached hereto ("Legal
Opinion") on behalf of the Borrower pursuant to a 364-Day Credit Agreement
between the Borrower, the Lenders named therein PNC Bank, National Association,
Bank of America NT&SA and Citibank, N.A., as Co-Syndication Agents, and The
Chase Manhattan Bank, as Administrative Agent ("Credit Agreement"), certifies as
follows:
1. There are no presently existing or contemplated plans to dissolve
the Borrower or to terminate its existence as an Ohio corporation.
2. There are no actions, suits, proceedings or governmental
investigations pending or threatened, or any judgments entered, against or
affecting the Borrower, its Subsidiaries or their properties except to the
extent disclosed in Borrower's reports and filings made pursuant to the
Securities Exchange Act of 1934, as amended, which would reasonably be
expected to result in a material adverse change in the financial condition
of the Borrower, its Subsidiaries or their properties or that involve the
Credit Agreement or the Transaction.
3. The Borrower is not subject to any material court or governmental
agency or authority orders, judgments or decrees except to the extent
disclosed in Borrower's reports and filings made pursuant to the Securities
Exchange Act of 1934, as amended.
4. Neither the execution, delivery nor performance by the Borrower of
the Credit Agreement is subject to any authorization, consent, approval or
review by any governmental body or regulatory authority.
5. The execution, delivery and performance by the Borrower of the
Credit Agreement do not violate or constitute (or become with notice or
lapse of a cure or grace period) a breach or default under (a) the
Borrower's Articles of Incorporation or Regulations, (b) any agreements to
which the Borrower is a party, or (c) any court or governmental agency or
authority orders, judgments or decrees.
6. The undersigned is not aware of any facts or circumstances which
would render Frost & Xxxxxx' legal opinion untrue.
7. The undersigned is authorized to issue this Certificate on behalf
of the Borrower.
Capitalized Terms used herein and not otherwise defined herein will have
the meanings given such terms in the Credit Agreement and/or the Legal Opinion.
Signed on December 16, 1998.
----------------------------------------
Xxxxxxx X. Xxxxxxx, III, Secretary
98
OFFICER'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxxxx, Assistant Secretary of Convergys
Customer Management Group, Inc. (the "Guarantor"), for the purpose of enabling
and inducing Frost & Xxxxxx to issue its legal opinion, a copy of which is
attached hereto ("Legal Opinion") on behalf of the Borrower pursuant to a
364-Day Credit Agreement between Convergys Corporation (the "Borrower"), the
Lenders named therein PNC Bank, National Association, Bank of America NT&SA and
Citibank, N.A., as Co-Syndication Agents, and The Chase Manhattan Bank, as
Administrative Agent ("Credit Agreement"), certifies as follows:
1. There are no presently existing or contemplated plans to dissolve
the Guarantor or to terminate its existence as an Ohio corporation.
2. There are no actions, suits, proceedings or governmental
investigations pending or threatened, or any judgments entered, against or
affecting the Guarantor, its Subsidiaries or their properties except to the
extent disclosed in Borrower's reports and filings made pursuant to the
Securities Exchange Act of 1934, as amended, which would reasonably be
expected to result in a material adverse change in the financial condition
of the Guarantor, its Subsidiaries or their properties or that involve the
Credit Agreement or the Transaction.
3. The Guarantor is not subject to any material court or governmental
agency or authority orders, judgments or decrees except to the extent
disclosed in Guarantor's reports and filings made pursuant to the
Securities Exchange Act of 1934, as amended.
4. Neither the execution, delivery nor performance by the Guarantor of
the Guarantee Documents is subject to any authorization, consent, approval
or review by any governmental body or regulatory authority.
5. The execution, delivery and performance by the Guarantor of the
Guarantee Documents do not violate or constitute (or become with notice or
lapse of a cure or grace period) a breach or default under (a) the
Guarantor's Articles of Incorporation or Regulations, (b) any agreements to
which the Guarantor is a party, or (c) any court or governmental agency or
authority orders, judgments or decrees.
6. The undersigned is not aware of any facts or circumstances which
would render Frost & Xxxxxx' legal opinion untrue.
7. The undersigned is authorized to issue this Certificate on behalf
of the Guarantor.
Capitalized Terms used herein and not otherwise defined herein will have
the meanings given such terms in the Credit Agreement and/or the Legal Opinion.
Signed on December 16, 1998.
----------------------------------------
Assistant Secretary
99
OFFICER'S CERTIFICATE
The undersigned, Xxx X. Xxxxxxxx, Assistant Secretary of Convergys
Information Management Group, Inc. (the "Guarantor"), for the purpose of
enabling and inducing Frost & Xxxxxx to issue its legal opinion, a copy of which
is attached hereto ("Legal Opinion") on behalf of the Borrower pursuant to a
364-Day Credit Agreement between Convergys Corporation (the "Borrower"), the
Lenders named therein PNC Bank, National Association, Bank of America NT&SA and
Citibank, N.A., as Co-Syndication Agents, and The Chase Manhattan Bank, as
Administrative Agent ("Credit Agreement"), certifies as follows:
1. There are no presently existing or contemplated plans to dissolve
the Guarantor or to terminate its existence as an Ohio corporation.
2. There are no actions, suits, proceedings or governmental
investigations pending or threatened, or any judgments entered, against or
affecting the Guarantor, its Subsidiaries or their properties except to the
extent disclosed in Borrower's reports and filings made pursuant to the
Securities Exchange Act of 1934, as amended, which would reasonably be
expected to result in a material adverse change in the financial condition
of the Guarantor, its Subsidiaries or their properties or that involve the
Credit Agreement or the Transaction.
3. The Guarantor is not subject to any material court or governmental
agency or authority orders, judgments or decrees except to the extent
disclosed in Guarantor's reports and filings made pursuant to the
Securities Exchange Act of 1934, as amended.
4. Neither the execution, delivery nor performance by the Guarantor of
the Guarantee Documents is subject to any authorization, consent, approval
or review by any governmental body or regulatory authority.
5. The execution, delivery and performance by the Guarantor of the
Guarantee Documents do not violate or constitute (or become with notice or
lapse of a cure or grace period) a breach or default under (a) the
Guarantor's Articles of Incorporation or Regulations, (b) any agreements to
which the Guarantor is a party, or (c) any court or governmental agency or
authority orders, judgments or decrees.
6. The undersigned is not aware of any facts or circumstances which
would render Frost & Xxxxxx' legal opinion untrue.
7. The undersigned is authorized to issue this Certificate on behalf
of the Guarantor.
Capitalized Terms used herein and not otherwise defined herein will have
the meanings given such terms in the Credit Agreement and/or the Legal Opinion.
Signed on December 16, 1998.
----------------------------------------
Secretary
100
December 16, 1998
The Chase Manhattan Bank, as Administrative
Agent (the "Agent") under the Credit Agreement,
as hereinafter defined
and
The Lenders listed on Schedule I hereto which are parties to the Credit
Agreement on the date hereof
Re: The 364-Day Credit Agreement dated as of December 16, 1998 (the "Credit
Agreement"), among Convergys Corporation, an Ohio corporation (the
"Company"), the lending institutions identified in the Credit Agreement
(the "Lenders"), PNC Bank, National Association, NationsBank, N.A. and
Citibank N.A., as Co-Syndication Agents and the Agent
------------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special New York counsel to the Company in connection
with the preparation, execution and delivery of (i) the Credit Agreement (the
"Credit Agreement"), (ii) the Guarantee Agreement, dated as of December 16,
1998, among each of the Subsidiaries of the Company listed on Schedule 1 thereto
(the "Guarantors') and the Agent (the "Guarantee Agreement") and (iii) the
Indemnity, Subrogation and Contribution Agreement, dated as of December 16, 1998
(the "Contribution Agreement"), among the Borrower, the Guarantors and the Agent
(collectively, the "Credit Documents"). Unless otherwise indicated, capitalized
terms used but not defined herein shall have the respective meanings set forth
in the Credit Agreement. This opinion is furnished to you pursuant to Section
4.01(c) of the Credit Agreement.
In connection with this opinion, we have examined the execution
copy of Credit Agreement, the execution copy of the Guarantee Agreement and the
execution copy of the Contribution Agreement, each delivered to us on December
15. We also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates of public officials and of
officers and representatives of the Company and the Guarantors. In addition, we
have examined, and have relied as to matters of fact upon, the representations
made in the Credit Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us
101
as originals, the conformity to original documents of all documents submitted to
us as duplicates or certified or conformed copies, and the authenticity of the
originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, and assuming that the execution
copy of each Credit Document reviewed by us is the form executed and delivered
by the parties thereto, we are of the opinion that:
1. The execution and delivery by the Company of the Credit Agreement
and the Contribution Agreement, its borrowings in accordance with the terms of
the Credit Agreement, and performance of its payment obligations thereunder,
assuming that proceeds of borrowings will be used in accordance with the terms
of the Credit Agreement, will not result in any violation of any New York
statute or any rule or regulation issued pursuant to any New York statute.
2. The execution and delivery by each Guarantor of the Guarantee
Agreement and the Contribution Agreement and the performance of its payment
obligations thereunder will not result in any violation of any New York statute
or any rule or reputation issued pursuant to any New York statute.
3. No consent, approval. authorization, order, filing, registration or
qualification of or with any New York governmental agency or body is required
for the execution and delivery by the Company or by any Guarantor of the Credit
Documents to which it is a party, the borrowings by the Company in accordance
with the terms of the Credit Amement or the performance by the Company or the
Guarantors of their respective payment obligations under the Credit Documents.
4. Assuming that the Credit Agreement is a valid and legally binding
obligation of each of the Lenders parties thereto and that the Contribution
Agreement is a valid and legally binding obligation of the Administrative Agent,
and assuming that (a) the Company is validly existing and in good standing under
the laws of the jurisdiction in which it is organized and has duly authorized
the Credit Agreement and the Contribution Agreement in accordance with its
Certificate of Incorporation and By-Laws, (b) execution, delivery and
performance by the Company of the Credit Agreement and the Contribution
Agreement do not violate the laws of the jurisdiction in which it is organized
or any other applicable laws (excepting the laws of the State of New York), (c)
execution, delivery and performance by the Company of the Credit Agreement and
the Contribution Agreement do not constitute a breach or violation of any
agreement or instrument which is binding upon the Company and (d) the Company is
not an "investment company" within the meaning of and subject to regulation
under the Investment Company Act of 1940 or a "holding company" as defined in,
or subject to regulation under, the Public Utility Holding Company Act of 1935,
each of the Credit Agreement and the Contribution Agreement constitutes the
valid and legally binding obligation of the Company enforceable against the
Company.
5. Assuming, that each of the Guarantee Agreement and the Contribution
Agreement is a valid and legally binding obligation of the Administrative Agent
and assuming that (a) each Guarantor is validly existing and in good standing
under the laws of the jurisdiction in which it is organized and has duly
authorized the Guarantee Agreement and the Contribution Agreement in
102
accordance with its Certificate of Incorporation and By-Laws, (b) execution,
delivery and performance by each Guarantor of the Guarantee Agreement and the
Contribution Agreement do not violate the laws of the jurisdiction in which it
is organized or any other applicable laws (excepting the laws of the State of
New York), (c) execution, delivery and performance by each Guarantor of the
Guarantee Agreement and the Contribution Agreement do not constitute a breach or
violation of any agreement or instrument which is binding upon each Guarantor
and (d) no Guarantor is an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940 or a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, each of the Guarantee Agreement and the
Contribution Agreement constitutes the valid and legally binding obligation of
each Guarantor enforceable against each Guarantor.
Our opinions in paragraphs 4 and 5 above are subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
We express no opinion with respect to:
(A) the effect of any provision of the Credit Documents which
is intended to permit modification thereof only by means of an agreement signed
in writing by the parties thereto;
(B) the effect of any provision of the Credit Agreement
insofar as it provides that any Person purchasing a participation from a Lender
or other Person may exercise set-off or similar rights with respect to such
participation or that any Lender or other Person may exercise set-off or similar
rights other than in accordance with applicable law;
(C) the effect of any provision of the Credit Documents
imposing penalties or forfeitures;
(D) the enforceability of any provision of any of the Credit
Documents to the extent that such provision constitutes a waiver of illegality
as a defense to performance of contract obligations;
(E) the effect of any provision of the Credit Documents
relating to indemnification or exculpation in connection with violations of any
securities laws or relating to indemnification, contribution or exculpation in
connection with willful, reckless or criminal acts or gross negligence of the
indemnified or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Documents whereby the
Company and the Guarantors submit to the jurisdiction of the United States
District Court for the Southern District of New York, we note the limitations of
28 U.S.C. sections 1331 and 1332 on Federal court jurisdiction, and we also note
that such submissions cannot supersede such court's discretion in determining
whether to transfer an action from one Federal court to another under 28 U.S.C.
section 1404(a).
103
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York.
This opinion letter is rendered to you in connection with the above
described transactions. This opinion letter may not be relied upon by you for
any other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
104
EXHIBIT C
CONFORMED COPY
GUARANTEE AGREEMENT dated as of December 16,
1998, among each of the subsidiaries listed on
Schedule I hereto (each such subsidiary,
individually, a "Guarantor" and, collectively, the
"Guarantors") of CONVERGYS CORPORATION, an Ohio
corporation (the "Borrower"), and THE CHASE MANHATTAN
BANK, as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit
Agreement referred to below).
Reference is made to the 364-Day Credit Agreement dated as of December
16, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto (the "Lenders"), PNC BANK, NATIONAL ASSOCIATION, NATIONSBANK, N.A. AND
CITIBANK, N.A., as Co-Syndication Agents, and the Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans (including Swingline Loans) to
the Borrower pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Each of the Guarantors is a wholly owned
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders. The obligations of the
Lenders to make Loans are conditioned on, among other things, the execution and
delivery by the Guarantors of a Guarantee Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make Loans, the
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
105
SECTION 1. GUARANTEE. Each Guarantor unconditionally guarantees (the
"Guarantee"), jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, (a) the due and punctual payment by the
Borrower of (i) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether such interest is
allowed or allowable as a claim in such proceeding) on the Loans (including
Swingline Loans), when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether such monetary
obligations are allowed or allowable as a claim in such proceeding), of the
Borrower to the Lenders under the Credit Agreement and the other Loan Documents,
(b) the due and punctual performance of all covenants, agreements, obligations
and liabilities of the Borrower under or pursuant to the Credit Agreement and
the other Loan Documents (c) the due and punctual payment and performance of all
the covenants, agreements, obligations and liabilities of each other Guarantor
under or pursuant to this Agreement and the other Loan Documents and (d) the due
and punctual payment and performance of all obligations of the Borrower under
each Hedging Agreement entered into with any counterparty that was a Lender (or
an Affiliate thereof) at the time such Hedging Agreement was entered into (all
the monetary and other obligations described in the preceding clauses (a)
through (d) being collectively called the "Obligations"). Each Guarantor further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
the Guarantee notwithstanding any extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary notwithstanding,
the obligations of each Guarantor hereunder shall be limited to a maximum
aggregate amount equal to the greatest amount that would not render such
Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of Intercompany Indebtedness to the Borrower or
Affiliates of the Borrower to the extent that such indebtedness would be
106
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(b) under any guarantee of senior unsecured indebtedness or Indebtedness
subordinated in right of payment to the Obligations, which guarantee contains a
limitation as to maximum amount similar to that set forth in this paragraph,
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (i) applicable law or (ii) any agreement providing for an equitable
allocation among such Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties (including the Contribution
Agreement).
SECTION 2. OBLIGATIONS NOT WAIVED. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of the Guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of the Administrative Agent or any
other Lender to assert any claim or demand or to enforce or exercise any right
or remedy against the Borrower or any other Guarantor under the provisions of
the Credit Agreement, any other Loan Document or otherwise or (b) any
rescission, waiver, amendment or modification of, or any release from any of the
terms or provisions of this Agreement, any other Loan Document, any Guarantee or
any other agreement, including with respect to any other Guarantor under this
Agreement.
SECTION 3. GUARANTEE OF PAYMENT. Each Guarantor further agrees that the
Guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any other Lender to any of the security held for payment of the Obligations
or to any balance of any deposit account or credit on the books of the
Administrative Agent or any other Lender in favor of the Borrower or any other
person.
SECTION 4. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
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4
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any other
Lender to assert any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations, or by any other act
or omission that may or might in any manner or to any extent vary the risk of
any Guarantor or that would otherwise operate as a discharge of each Guarantor
as a matter of law or equity (other than the indefeasible payment in full in
cash of all the Obligations) or which would impair or eliminate any right of
such Guarantor to subrogation.
SECTION 5. DEFENSES OF BORROWER WAIVED. To the fullest extent permitted
by applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the indefeasible payment in full in cash
of all the Obligations. The Administrative Agent and the Lenders may, at their
election, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other Guarantor or exercise any other
right or remedy available to them against the Borrower or any other Guarantor,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent that all the Obligations have been indefeasibly
paid in full in cash. Pursuant to applicable law, each of the Guarantors waives
any defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other Guarantor.
SECTION 6. AGREEMENT TO PAY; SUBORDINATION. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any other Lender has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Guarantor to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent or such other Lender as designated thereby in cash the amount of such
unpaid Obligations. Upon
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5
payment by any Guarantor of any sums to the Administrative Agent or any Lender
as provided above, all rights of such Guarantor against the Borrower arising as
a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full in cash of all the
Obligations. In addition, any indebtedness of the Borrower now or hereafter held
by any Guarantor is hereby subordinated in right of payment to the prior payment
in full in cash of the Obligations. If any amount shall erroneously be paid to
any Guarantor on account of (a) such subrogation, contribution, reimbursement,
indemnity or similar right or (b) any such indebtedness of the Borrower, such
amount shall be held in trust for the benefit of the Lenders and shall forthwith
be paid to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 7. INFORMATION. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 9. TERMINATION. The Guarantees (a) shall terminate when all the
Obligations have been indefeasibly paid in full in cash and the Lenders have no
further commitment to lend under the Credit Agreement and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, any Guarantor or otherwise.
SECTION 10. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party, and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall
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6
become effective as to any Guarantor when a counterpart hereof (or a Supplement
referred to in Section 19) executed on behalf of such Guarantor shall have been
delivered to the Administrative Agent, and a counterpart hereof (or a Supplement
referred to in Section 19) shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the other
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). This
Agreement shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and without
affecting the obligations of any other Guarantor hereunder.
SECTION 11. WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
hereunder and of the other Lenders under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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7
SECTION 13. NOTICES. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it in
care of the Borrower.
SECTION 14. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the other Lenders and
shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Lenders or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any other fee or amount payable under this Agreement or any other Loan
Document is outstanding and unpaid and as long as the Commitments have not been
terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 10. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 16. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
111
8
of New York sitting in New York County and of the United States District Court
of the Southern District of New York, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any other Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against any Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 18.
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9
SECTION 19. ADDITIONAL GUARANTORS. Pursuant to Section 5.09 of the
Credit Agreement, each (a) direct Subsidiary that was not in existence (or not a
direct Subsidiary) on the date of the Credit Agreement and (b) indirect
Subsidiary not in existence (or not an indirect Subsidiary or not an indirect
Subsidiary that has incurred the type of Indebtedness described below) on the
date hereof that has created, incurred or permitted to exist any Indebtedness
(other than Intercompany Indebtedness and Indebtedness of the type described in
clauses (d), (e) and (h) of the definition of "Indebtedness"), is required
promptly to enter into this Agreement as a Guarantor upon becoming a Subsidiary.
Upon execution and delivery after the date hereof by the Administrative Agent
and such a Subsidiary of an instrument in the form of Annex 1, such Subsidiary
shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
SECTION 20. RIGHT OF SET-OFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by such Lender to or
for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 20 are in addition to other rights and remedies
(including other rights of set-off) that such Lender may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
113
10
CONVERGYS INFORMATION
MANAGEMENT GROUP INC.,
by
/s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
CONVERGYS CUSTOMER
MANAGEMENT GROUP INC.,
by
/s/ XXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
/s/ XXXX X. MIX
---------------------------------
Name: Xxxx X. Mix
Title: Vice President
114
Schedule I to the
Guarantee Agreement
GUARANTOR ADDRESS
--------- -------
Convergys Information 000 X. Xxxxxx Xxxxxx
Management Group Inc. Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Convergys Customer 000 X. Xxxxxx Xxxxxx
Management Group Inc. Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
115
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of
, to the Guarantee Agreement dated as of
December 16, 1998, among each of the subsidiaries
thereto (each such subsidiary, individually, a
"Guarantor" and, collectively, the "Guarantors") of
CONVERGYS CORPORATION, an Ohio corporation (the
"Borrower"), and THE CHASE MANHATTAN BANK, as
administrative agent (the "Administrative Agent") for
the Lenders (as defined in the Credit Agreement
referred to below).
A. Reference is made to the 364-Day Credit Agreement dated as of
December 16, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Borrower, the lenders from time to time
party thereto (the "Lenders"), PNC BANK, NATIONAL ASSOCIATION, NATIONSBANK, N.A.
AND CITIBANK, N.A., as Co-Syndication Agents, and the Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.09 of the Credit
Agreement, each (a) direct Subsidiary that was not in existence (or not a direct
Subsidiary) on the date of the Credit Agreement and (b) indirect Subsidiary not
in existence (or not an indirect Subsidiary or not an indirect Subsidiary that
has incurred the type of Indebtedness described below) on the date hereof that
has created, incurred or permitted to exist any Indebtedness (other than
Intercompany Indebtedness and Indebtedness of the type described in clauses (d),
(e) and (h) of the definition of "Indebtedness"), is required to enter into the
Guarantee Agreement as a Guarantor upon becoming such a Subsidiary. Section 19
of the Guarantee Agreement provides that additional Subsidiaries of the Borrower
may become Guarantors under the Guarantee Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Guarantor under the
Guarantee Agreement in order to induce the Lenders to make additional Loans and
as consideration for Loans previously made.
116
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 19 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a "Guarantor" in the Guarantee Agreement shall be deemed to
include the New Guarantor. The Guarantee Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the other Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular
117
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
care of the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[Name Of New Guarantor],
by
----------------------
Name:
Title:
Address:
--------------
------------------------
------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-----------------------
Name:
Title:
118
EXHIBIT D
CONFORMED COPY
INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT (together with instruments executed and
delivered pursuant to Section 12, the "Contribution
Agreement") dated as of December 16, 1998, among
CONVERGYS CORPORATION, an Ohio corporation (the
"Borrower"), each subsidiary of the Borrower listed
on Schedule I hereto (the "Guarantors") and THE CHASE
MANHATTAN BANK, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders
(as defined in the Credit Agreement referred to
below).
Reference is made to (a) the 364-Day Credit Agreement dated as of
December 16, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among the Borrower, the lenders from time to time
party thereto (the "Lenders"), PNC BANK, NATIONAL ASSOCIATION, NATIONSBANK, N.A.
AND CITIBANK, N.A., as Co-Syndication Agents, and the Administrative Agent and
(b) the Guarantee Agreement dated as of December 16, 1998, among the Guarantors
and the Administrative Agent (the "Guarantee Agreement"). Capitalized terms used
herein and not defined herein are used with the meanings assigned to such terms
in the Credit Agreement.
The Lenders have agreed to make Loans (including Swingline Loans) to
the Borrower pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. The Guarantors have guaranteed such Loans
and the other Obligations (as defined in the Guarantee Agreement) of the
Borrower and the Guarantors under the Credit Agreement and the other Loan
Documents pursuant to the Guarantee Agreement. The obligations of the Lenders to
make Loans are conditioned on, among other things, the execution and delivery by
the Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
119
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that in the event a payment shall be
made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and, until such
indemnification obligation shall have been satisfied, such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement, and
such other Guarantor (the Claiming Guarantor) shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing Guarantor
shall, to the extent the Claiming Guarantor shall not have been so indemnified
by the Borrower, indemnify the Claiming Guarantor in an amount equal to the
amount of such payment, multiplied by a fraction of which the numerator shall be
the net worth of the Contributing Guarantor on the date hereof (or, in the case
of any Guarantor becoming a party hereto pursuant to Section 12, the date of the
Supplement hereto executed and delivered by such Guarantor) and the denominator
shall be the aggregate net worth of all the Guarantors on the date hereof (or,
in the case of any Guarantor becoming a party hereto pursuant to Section 12, the
date of the Supplement hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this Section 2 shall be subrogated to the rights of such Claiming Guarantor
under Section 1 to the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
SECTION 4. TERMINATION. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash or any of the Commitments under the Credit
Agreement have not been terminated, and shall continue to be effective or be
120
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Lender or any
Guarantor upon the bankruptcy or reorganization of the Borrower, any Guarantor
or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. NO WAIVER; AMENDMENT. (a) No failure on the part of the
Administrative Agent or any Guarantor to exercise, and no delay in exercising,
any right, power or remedy here under shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. None of the Administrative Agent and the Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and signed by
such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Administrative Agent, with the prior
written consent of the Required Lenders (except as otherwise provided in the
Credit Agreement).
SECTION 7. NOTICES. All communications and notices hereunder shall be
in writing and given as provided in the Credit Agreement or the Guarantee
Agreement, as applicable, and addressed as specified therein.
SECTION 8. BINDING AGREEMENT; ASSIGNMENTS. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement with respect to any payments made
or assets sold after the date of such release.
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SECTION 9. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Administrative Agent, the other Lenders and each Guarantor, shall
survive the making by the Lenders of the Loans and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loans or
any other fee or amount payable under the Credit Agreement, this Agreement or
any of the other Loan Documents is outstanding and unpaid or the Commitments
have not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Administrative Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 11. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. ADDITIONAL GUARANTORS. Pursuant to Section 5.09 of the
Credit Agreement, each (a) direct Subsidiary that was not in existence (or not a
direct Subsidiary) on the date of the Credit Agreement and (b) indirect
Subsidiary not in existence (or not an indirect Subsidiary or not an indirect
Subsidiary that has incurred the type of Indebtedness described below) on the
date hereof that has created, incurred or permitted to exist any Indebtedness
(other than Intercompany Indebtedness and Indebtedness of the type described in
clauses (d), (e) and (h) of the definition of "Indebtedness"), is required
promptly to enter into this
122
6
Agreement as a Guarantor upon becoming such a Subsidiary. Upon execution and
delivery, after the date hereof, by the Administrative Agent and such a
Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor hereunder. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Agreement shall not require
the consent of any Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
CONVERGYS CORPORATION,
by
/S/ XXXXXX X. XXXXX, XX.
-------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: VP Finance &
Treasurer
CONVERGYS INFORMATION
MANAGEMENT GROUP INC.,
by
/s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
CONVERGYS CUSTOMER
MANAGEMENT GROUP INC.,
by
/s/ XXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & CEO
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
/s/ XXXX X. MIX
-------------------------------------------
Name: Xxxx X. Mix
Title: Vice President
123
7
124
8
SCHEDULE I
to the Indemnity, Subrogation
and Contribution Agreement
GUARANTORS
NAME ADDRESS
Convergys Information 000 X. Xxxxxx Xxxxxx
Management Group Inc. Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Convergys Customer 000 X. Xxxxxx Xxxxxx
Management Group Inc. Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
125
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. (this "Supplement") dated as
of [ ], to the Indemnity, Subrogation and
Contribution Agreement dated as of December 16, 1998
(as the same may be amended, supplemented or
otherwise modified from time to time, the
"Contribution Agreement"), among CONVERGYS
CORPORATION, an Ohio corporation (the "Borrower"),
each subsidiary of the Borrower listed on Schedule I
thereto (the "Guarantors") and THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders (as defined
in the Credit Agreement referred to below).
A. Reference is made to (a) the 364-Day Credit Agreement dated as of
December 16, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among the Borrower, the lenders from time to time
party thereto (the "Lenders"), PNC BANK, NATIONAL ASSOCIATION, NATIONSBANK, N.A.
AND CITIBANK, N.A., as Co-Syndication Agents, and the Administrative Agent and
(b) the Guarantee Agreement dated as of December 16, 1998, among the Guarantors
and the Administrative Agent (the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Contribution Agreement and the
Credit Agreement.
C. The Borrower and the Guarantors have entered into the Contribution
Agreement in order to induce the Lenders to make Loans. Pursuant to Section 5.09
of the Credit Agreement, each (a) direct Subsidiary that was not in existence
(or not a direct Subsidiary) on the date of the Credit Agreement and (b)
indirect Subsidiary not in existence (or not an indirect Subsidiary or not an
indirect Subsidiary that has incurred the type of Indebtedness described below)
on the date hereof that has created, incurred or permitted to exist any
Indebtedness (other than Intercompany Indebtedness and Indebtedness of the type
described in clauses (d), (e) and (h) of the definition of "Indebtedness"), is
required promptly to enter into the Contribution Agreement as a Guarantor upon
becoming such a Subsidiary. Section 12 of the Contribution Agreement
126
2
provides that additional Subsidiaries may become Guarantors under the
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Credit Agreement to
become a Guarantor under the Agreement in order to induce the Lenders to make
additional Loans and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Contribution Agreement,
the New Guarantor by its signature below becomes a Guarantor under the
Contribution Agreement with the same force and effect as if originally named
therein as a Guarantor and the New Guarantor hereby agrees to all the terms and
provisions of the Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Contribution Agreement shall
be deemed to include the New Guarantor. The Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Contribution
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
127
3
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Contribution Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Contribution Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Contribution Agreement as of the day and
year first above written.
[Name Of New Guarantor]
by
-------------------------------
Name:
Title:
Address:
THE CHASE MANHATTAN BANK
as Administrative Agent
by
-----------------------------
Name:
Title:
128
SCHEDULE I
to Supplement No.___ to the Indemnity,
Subrogation and Contribution Agreement
GUARANTORS
NAME ADDRESS
---- -------
129
SCHEDULE 2.01
COMMITMENTS
LENDER COMMITMENTS
------ -----------
The Chase Manhattan Bank $ 57,500,000.00
NationsBank, N.A. $ 57,500,000.00
Citibank, N.A. $ 57,500,000.00
PNC Bank, National Association $ 57,500,000.00
NBD Bank $ 45,000,000.00
Commerzbank Aktiengesellschaft $ 45,000,000.00
Fleet National Bank $ 45,000,000.00
Toronto Dominion (Texas), Inc. $ 45,000,000.00
BankBoston, N.A. $ 32,500,000.00
The Bank of New York $ 32,500,000.00
Bankers Trust Company $ 25,000,000.00
Banque Nationale de Paris, Chicago $ 25,000,000.00
Branch
Fifth Third Bank $ 25,000,000.00
Star Bank, National Association $ 25,000,000.00
Suntrust Bank Central Florida, N.A. $ 25,000,000.00
---------------
Total $ 600,000,000.00
================
130
SCHEDULE 3.06
DISCLOSED MATTERS
None except as set forth in Borrower's reports and filings made pursuant to the
Securities and Exchange Act of 1934, as amended, prior to the date of this
Agreement.
131
SCHEDULE 3.13
Convergys Information Management Group Inc.
Convergys IMG Europe Inc.
Convergys IMG International Inc.
Convergys IMG International Service Inc.
Convergys IMG International Sales Corporation
Convergys Customer Management Group Inc.
MATRIXX Marketing International Inc.
MATRIXX Marketing Europe S.A.
MATRIXX Marketing Customer Care Canada
MATRIXX Marketing Services S.A.
MATRIXX Marketing S.A.
All subsidiaries are 100% owned.
132
SCHEDULE 6.05
EXISTING RESTRICTIONS
None
