Exhibit 4.1
EXECUTION COPY
CREDIT AGREEMENT
among
EQUIFAX INC.
as a Borrower and as a Guarantor
EQUIFAX PLC
as a Designated Borrower
CERTAIN OTHER SUBSIDIARIES OF EQUIFAX INC.
FROM TIME TO TIME PARTY HERETO
as Designated Borrowers
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
Dated as of August 20, 2004
--------------------------------------------------------------------------------
SUNTRUST XXXXXXXX XXXXXXXX, a division of SUNTRUST CAPITAL MARKETS, INC.
Joint Lead Arranger
BANC OF AMERICA SECURITIES LLC
Joint Lead Arranger
BANK OF AMERICA, N.A.
Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
Co-Documentation Agent
BANK OF NEW YORK
Co-Documentation Agent
and
ROYAL BANK OF SCOTLAND
Co-Documentation Agent
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS, ETC........................................................................................1
SECTION 1.1 DEFINITIONS........................................................................1
SECTION 1.2 GENERAL...........................................................................22
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS..................................................22
SECTION 1.4 CURRENCY EQUIVALENTS GENERALLY....................................................23
SECTION 1.5 SPECIAL PROVISIONS RELATING TO CURRENCY...........................................23
ARTICLE II CREDIT FACILITIES.....................................................................................23
SECTION 2.1 AMOUNT AND TERMS OF CREDIT........................................................23
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS..................................24
SECTION 2.3 REPAYMENT OF LOANS................................................................25
SECTION 2.4 REVOLVING CREDIT NOTES............................................................27
SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE...............................................27
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.....................................................31
SECTION 2.7 COMMITMENT REDUCTIONS AND INCREASES...............................................34
SECTION 2.8 TERMINATION.......................................................................35
SECTION 2.9 UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE CURRENCIES.......................35
SECTION 2.10 DESIGNATED BORROWERS..............................................................36
SECTION 2.11 LIMITATION ON LIABILITY...........................................................37
ARTICLE III LETTER OF CREDIT FACILITY............................................................................37
SECTION 3.1 L/C COMMITMENT....................................................................37
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.......................................38
SECTION 3.3 FEES AND OTHER CHARGES............................................................40
SECTION 3.4 L/C PARTICIPATIONS................................................................40
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS; LIMITATION ON LIABILITY................41
SECTION 3.6 OBLIGATIONS ABSOLUTE..............................................................42
SECTION 3.7 EFFECT OF L/C APPLICATION.........................................................43
ARTICLE IV GENERAL LOAN PROVISIONS...............................................................................44
SECTION 4.1 INTEREST..........................................................................44
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT LOANS.............................46
SECTION 4.3 FEES..............................................................................47
SECTION 4.4 MANNER OF PAYMENT.................................................................47
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS................................................48
SECTION 4.6 ADJUSTMENTS.......................................................................49
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF CREDIT; ASSUMPTION BY
THE ADMINISTRATIVE AGENT..........................................................49
SECTION 4.8 CHANGED CIRCUMSTANCES.............................................................50
SECTION 4.9 INDEMNITY...........................................................................
i
SECTION 4.10 CAPITAL REQUIREMENTS..............................................................53
SECTION 4.11 TAXES.............................................................................53
SECTION 4.12 MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS.................................56
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING...........................................................57
SECTION 5.1 CONDITIONS TO CLOSING.............................................................57
SECTION 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT............................................60
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES..................................................61
SECTION 6.1 REPRESENTATIONS AND WARRANTIES....................................................61
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC...................................67
ARTICLE VII FINANCIAL INFORMATION AND NOTICES....................................................................67
SECTION 7.1 FINANCIAL STATEMENTS, ETC.........................................................68
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE..................................................68
SECTION 7.3 ACCOUNTANTS' CERTIFICATE..........................................................70
SECTION 7.4 OTHER REPORTS.....................................................................70
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS............................................70
SECTION 7.6 RATINGS INFORMATION...............................................................71
SECTION 7.7 ACCURACY OF INFORMATION...........................................................71
ARTICLE VIII AFFIRMATIVE COVENANTS...............................................................................72
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED MATTERS...........................72
SECTION 8.2 MAINTENANCE OF PROPERTY...........................................................72
SECTION 8.3 INSURANCE.........................................................................72
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS..........................................73
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS............................................73
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS................................................73
SECTION 8.7 ENVIRONMENTAL LAWS................................................................73
SECTION 8.8 COMPLIANCE WITH ERISA.............................................................74
SECTION 8.9 CONDUCT OF BUSINESS...............................................................74
SECTION 8.10 VISITS AND INSPECTIONS............................................................74
SECTION 8.11 USE OF PROCEEDS...................................................................75
ARTICLE IX NEGATIVE COVENANTS....................................................................................75
SECTION 9.1 FINANCIAL COVENANTS...............................................................75
SECTION 9.2 LIMITATIONS ON LIENS..............................................................75
SECTION 9.3 LIMITATIONS ON SUBSIDIARY DEBT....................................................78
SECTION 9.4 LIMITATIONS ON MERGERS AND LIQUIDATION............................................79
SECTION 9.5 LIMITATION ON ASSET DISPOSITIONS..................................................79
SECTION 9.6 LIMITATIONS ON ACQUISITIONS.......................................................79
SECTION 9.7 LIMITATION ON RESTRICTED INVESTMENTS..............................................80
SECTION 9.8 LIMITATION ON RESTRICTED PAYMENTS.................................................80
SECTION 9.9 LIMITATION ON TRANSACTIONS WITH AFFILIATES........................................80
SECTION 9.10 LIMITATION ON CERTAIN ACCOUNTING CHANGES..........................................80
SECTION 9.11 LIMITATION OF RESTRICTING SUBSIDIARY DIVIDENDS AND DISTRIBUTIONS..................81
ii
SECTION 9.12 HEDGING AGREEMENTS................................................................81
ARTICLE X GUARANTY OF THE COMPANY................................................................................81
SECTION 10.1 GUARANTY OF PAYMENT...............................................................81
SECTION 10.2 OBLIGATIONS UNCONDITIONAL; WAIVERS................................................81
SECTION 10.3 MODIFICATIONS.....................................................................82
SECTION 10.4 ADDITIONAL WAIVER OF RIGHTS.......................................................83
SECTION 10.5 REINSTATEMENT.......................................................................
SECTION 10.6 REMEDIES..........................................................................84
SECTION 10.7 LIMITATION OF GUARANTY............................................................84
ARTICLE XI DEFAULT AND REMEDIES..................................................................................84
SECTION 11.1 EVENTS OF DEFAULT.................................................................84
SECTION 11.2 REMEDIES..........................................................................88
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC...................................89
ARTICLE XII THE ADMINISTRATIVE AGENT.............................................................................89
SECTION 12.2 NATURE OF DUTIES OF ADMINISTRATIVE AGENT..........................................90
SECTION 12. 7 SUCCESSOR ADMINISTRATIVE AGENT....................................................91
SECTION 12. 8 ADDITIONAL AGENCIES; NO DUTIES IMPOSED UPON SYNDICATION AGENTS OR
CO-DOCUMENTATION AGENTS...........................................................92
SECTION 12. 9 INDEMNIFICATION...................................................................92
ARTICLE XIII MISCELLANEOUS.......................................................................................93
SECTION 13.1 NOTICES...........................................................................93
SECTION 13.2 EXPENSES, INDEMNITY...............................................................94
SECTION 13.3 SET-OFF...........................................................................95
SECTION 13.4 GOVERNING LAW.....................................................................96
SECTION 13.5 CONSENT TO JURISDICTION...........................................................96
SECTION 13.6 WAIVER OF JURY TRIAL: LIMITATION ON DAMAGES......................................96
SECTION 13.7 REVERSAL OF PAYMENTS..............................................................97
SECTION 13.8 ACCOUNTING MATTERS................................................................97
SECTION 13.9 SUCCESSORS AND ASSIGNS; PARTICIPATIONS............................................97
SECTION 13.10 CONFIDENTIALITY..................................................................101
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS.................................................102
SECTION 13.12 PERFORMANCE OF DUTIES............................................................103
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST.................................................103
SECTION 13.14 SURVIVAL OF INDEMNITIES..........................................................103
SECTION 13.15 TITLES AND CAPTIONS..............................................................103
SECTION 13.16 SEVERABILITY OF PROVISIONS.......................................................103
SECTION 13.17 COUNTERPARTS.....................................................................104
SECTION 13.18 TERM OF AGREEMENT................................................................104
SECTION 13.19 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT EFFECT OF COVENANTS............104
SECTION 13.20 JUDGMENT CURRENCY................................................................104
SECTION 13.21 SEVERAL OBLIGATIONS OF THE BORROWERS.............................................105
iii
SECTION 13.22 SUBORDINATION OF COMPANY'S CLAIMS AGAINST THE DESIGNATED BORROWERS...............105
SECTION 13.23 PATRIOT ACT NOTIFICATION.........................................................105
iv
SCHEDULES
Schedule 1.1(a) - Commitments as of Closing Date
Schedule 4.1(f) - Calculation of MLA Cost
Schedule 6.1(b) - Subsidiaries of the Company as of Closing Date
Schedule 6.1(h) - Environmental Matters
Schedule 6.1(p) - Debt and Support Obligations of the Borrowers
and any Subsidiary as of Closing Date
Schedule 9.2 - Liens as of Closing Date
Schedule 13.1 - Notice Addresses for Lenders
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note for Company
Exhibit A-2 - Form of Revolving Credit Note for Designated Borrowers
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Swingline Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Borrower Joinder Agreement
Exhibit F - Form of Notice of Conversion/Continuation
Exhibit G - Form of Officer's Compliance Certificate
Exhibit H - Form of Assignment and Acceptance
v
CREDIT AGREEMENT dated as of August 20, 2004 among EQUIFAX INC., a
Georgia corporation (the "COMPANY"), EQUIFAX PLC, a public company limited by
shares organized under the laws of England and Wales ("EQUIFAX PLC"), certain
other Wholly-Owned Subsidiaries of the Company from time to time party hereto
(together with Equifax Plc, each a "DESIGNATED BORROWER," and together with the
Company and Equifax Plc, the "BORROWERS," and each, a "BORROWER"), the Lenders
from time to time party hereto and SUNTRUST BANK, as Administrative Agent (all
capitalized terms used herein and defined in Section 1.1 are used herein as
therein defined).
STATEMENT OF PURPOSE
WHEREAS, the Borrowers wish to establish with the Lenders credit
facilities providing for revolving loans and letters of credit of up to
$500,000,000 in the aggregate maximum principal amount at any time outstanding,
and the Lenders and the Administrative Agent are willing to establish such
credit facilities on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
SECTION 1.1 DEFINITIONS.
The following terms when used in this Agreement shall have the meanings
assigned to them below:
"ADMINISTRATIVE AGENT" means SunTrust Bank in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"ADMINISTRATIVE AGENT'S FEE LETTER" means that certain letter agreement,
dated as of June 4, 2004, among the Administrative Agent, SunTrust Capital
Markets, Inc. and the Company, as amended, modified, supplemented or replaced
from time to time.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly through one or more intermediaries (a) controls, or is
controlled by, or is under common control with, such first Person or any of its
Subsidiaries or (b) owns or holds ten percent (10%) or more of the Capital Stock
in such first Person or any of its Subsidiaries. The term "control" means the
possession, directly or indirectly, of any power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"AGGREGATE REVOLVING CREDIT COMMITMENT" means the aggregate Revolving
Credit Commitment of all Lenders, as such amount may be increased or reduced or
modified at any time or from time to time pursuant to the terms hereof. The
Aggregate Revolving Credit Commitment on the Closing Date shall be Five Hundred
Million Dollars ($500,000,000).
"AGGREGATE REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any
Lender at any time, the ratio of (a) such Lender's Revolving Credit Commitment
to (b) the Aggregate Revolving Credit Commitment of all of the Lenders.
"AGREED ALTERNATIVE CURRENCY" shall have the meaning assigned thereto in
Section 2.9(e).
"AGREEMENT" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified.
"APPLICABLE CURRENCY" means, as to any particular Revolving Credit Loan,
Competitive Bid Loan, Letter of Credit or payment, Dollars or the Offshore
Currency in which such Loan, Letter of Credit or payment is denominated or is
payable.
"APPLICABLE LAW" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of Governmental Authorities and all orders
and decrees of all courts and arbitrators.
"APPLICABLE PERCENTAGE" means, for purposes of calculating (a) the
interest rate applicable to Offshore Rate Loans for purposes of Section 4.1(a);
(b) the L/C Fee for purposes of Section 3.3(a); or (c) the Facility Fee for
purposes of Section 4.3(b), the rate set forth below opposite the Applicable
Rating then in effect:
------------ ------------------- ------------- -------------
Offshore
Rate Loans
under the
Revolving
Credit
Pricing Facility Facility
Level Applicable Rating and L/C Fee Fee
------------ ------------------- ------------- -------------
I > A/A2 0.275% 0.100%
-
------------ ------------------- ------------- -------------
II A-/A3 0.375% 0.125%
------------ ------------------- ------------- -------------
III BBB+/Baa1 0.475% 0.150%
------------ ------------------- ------------- -------------
IV BBB/Baa2 0.575% 0.175%
------------ ------------------- ------------- -------------
V < BBB/Baa2 0.750% 0.250%
------------ ------------------- ------------- -------------
For purposes of the foregoing, (i) if the Applicable Ratings established by
Moody's and S&P are different but correspond to consecutive Pricing Levels, then
the Pricing Level with the lower number (i.e., corresponding to the better
rating) shall apply (e.g., if Moody's and S&P's
2
Applicable Ratings correspond to Pricing Levels I and II, respectively, then
Pricing Level I will apply), (ii) if the Applicable Ratings established by
Moody's and S&P are different and correspond to non-consecutive Pricing Levels,
then the Pricing Level with a number equal to the higher Pricing Level number
(i.e., corresponding to the worse rating) minus one shall apply (e.g., if
Moody's and S&P's Applicable Ratings correspond to Pricing Levels I and IV,
respectively, then Pricing Level III will apply), (iii) if only one Applicable
Rating is available as a result of either S&P or Moody's failure to continue to
rate any issuer's senior, unsecured, long-term, non-credit enhanced debt for
borrowed money, then the Pricing Level shall be based on such Applicable Rating
that remains available (e.g., if Moody's Applicable Rating corresponds to
Pricing Level I and S&P is no longer in the business of rating any issuer's
senior, unsecured, long-term, non-credit enhanced debt for borrowed money, then
Pricing Level I will apply), (iv) if S&P or Moody's withdraws its Applicable
Rating and the remaining Applicable Rating is below BBB+/Baa1, as applicable,
then such remaining Applicable Rating shall apply for sixty (60) days from the
date of such withdraw by either S&P or Moody's of its Applicable Rating and
thereafter Pricing Level V shall apply until the earlier of (A) such time as S&P
and/or Moody's provides another Applicable Rating or (B) the Required Lenders
have agreed to an alternative pricing grid or other method for determining
Pricing Levels pursuant to an effective amendment to this Agreement, (v) if S&P
or Moody's withdraws its Applicable Rating and the remaining Applicable Rating
is BBB+/Baa1 or above, as applicable, then the Pricing Level shall correspond to
the remaining Applicable Rating, and (vi) if both S&P and Moody's withdraw their
Applicable Ratings, then Pricing Level V shall apply until the earlier of (A)
such time as S&P and/or Moody's provides another Applicable Rating or (B) the
Required Lenders have agreed to an alternative pricing grid or other method for
determining Pricing Levels pursuant to an effective amendment to this Agreement.
The Applicable Percentage shall be determined and adjusted as of the
date on which any change in an Applicable Rating is announced by the relevant
rating agency (each such adjustment date, a "RATE DETERMINATION DATE").
Each Applicable Percentage shall be effective from a Rate Determination
Date until the next such Rate Determination Date. The Administrative Agent shall
determine the appropriate Applicable Percentages in the pricing matrix promptly
upon notice of a ratings change by the Company as required pursuant to Section
7.6 and shall promptly notify the Company and the Lenders of any change thereof.
Such determinations by the Administrative Agent shall be conclusive absent
manifest error. Adjustments in the Applicable Percentages shall be effective as
to existing Extensions of Credit as well as any new Extension of Credit made
thereafter. The Applicable Percentage from the Closing Date shall be based on
Pricing Level II, subject to adjustment as provided herein.
"APPLICABLE RATING" means as to each of Xxxxx'x and S&P, its rating of
the Company's senior, unsecured, long-term, non-credit enhanced debt for
borrowed money.
"APPLICANT BORROWER" shall have the meaning assigned thereto in Section
2.10(a).
"APPROVED FUND" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
3
"ARRANGERS" means SunTrust Capital Markets, Inc. and Banc of America
Securities LLC in their capacities as Joint Lead Arrangers for the Credit
Facility.
"ASSET DISPOSITION" means the disposition of any or all of the assets
(including without limitation the disposition of accounts and notes receivable,
the sale of the Capital Stock of a Subsidiary to a Person other than the Company
or a Subsidiary of the Company and any Equity Issuance of Capital Stock of a
Subsidiary to a Person other than the Company or a Subsidiary of the Company) of
the Company or any of its Subsidiaries whether by sale, lease, transfer or
otherwise. The term "Asset Disposition" shall not include (i) the sale of
inventory or Cash Equivalents in the ordinary course of business, (ii) the sale
or disposition of fixed assets no longer used or useful in the conduct of such
Person's business, (iii) any Equity Issuance of Capital Stock of the Company,
(iv) transfers of assets to the Company or from a Subsidiary of the Company to a
Wholly-Owned Subsidiary of the Company, (v) transfers of assets required in
connection with any Permitted Securitization Transaction or (vi) transfers of
assets which individually account for less than $1,000,000 of the Consolidated
Operating Profit for the immediately preceding Fiscal Year.
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning assigned thereto in
Section 13.9(b)(iii).
"BANKRUPTCY EVENT" means any of the events set forth in Section 11.1(i)
or (j) or any of those events which with the passage of time, the giving of
notice or any other condition would constitute such an event, in respect of any
of the Borrowers or any of their Subsidiaries.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate and (b)
the sum of (i) the Federal Funds Rate PLUS (ii) 1/2 of 1%; each change in the
Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan denominated in Dollars and bearing
interest at a rate based upon the Base Rate as provided in Section 4.1(a).
"BORROWER JOINDER AGREEMENT" means a Borrower Joinder Agreement executed
by an Applicant Borrower, the Company and the Administrative Agent in
substantially the form of EXHIBIT E, as amended, restated, supplemented or
otherwise modified.
"BORROWERS" means, collectively, the Company, Equifax Plc and the
Designated Borrowers; "BORROWER" means any one of them.
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday on
which banks are not authorized or required to close in Atlanta, Georgia or New
York, New York and, if the applicable Business Day relates to the advance or
continuation of, conversion into, or payment on an Offshore Rate Loan or a
Competitive Bid Loan (i) in a currency other than euros, on which banks are
dealing in Dollar or any Offshore Currency (other than euros) deposits, as
applicable, in the applicable interbank eurocurrency market in London, England,
and in the country of issue
4
of the currency of such Offshore Rate Loan or a Competitive Bid Loan, and (ii)
in euros, on which TARGET is open for the settlement of payments in euros.
"CAPITAL LEASE" means, with respect to any Person, any lease of any
property that should, in accordance with GAAP, be classified and accounted for
as a capital lease on a Consolidated balance sheet of such Person and its
Consolidated Subsidiaries.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CASH EQUIVALENT" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time and demand deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "APPROVED BANK"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Xxxxx'x and maturing within six
months of the date of acquisition, (d) repurchase agreements with a bank or
trust company (including any of the Lenders) or securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions having capital of at least $500,000,000
and the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"CHANGE IN CONTROL" shall have the meaning assigned thereto in Section
11.1(h).
"CLOSING DATE" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.1 shall be satisfied or
waived in all respects.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified from
time to time.
"COMPANY" means Equifax Inc., a Georgia corporation.
5
"COMPETITIVE BID" means an offer by a Lender to make a Competitive Bid
Loan in accordance with Section 2.5.
"COMPETITIVE BID LOANS" means any Loan made pursuant to Section 2.5 and
all such Loans collectively as the context requires.
"COMPETITIVE BID RATE" means the rate of interest per annum expressed in
multiples of l/100th of one percent offered with respect to any Competitive Bid
Loan offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by the Company, on behalf of a
Borrower, for Competitive Bids in accordance with Section 2.5.
"CONSOLIDATED" means, when used with reference to financial statements
or financial statement items of a Person and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"CONSOLIDATED EBITDA" means, for any period, as applied to the Company
and its Consolidated Subsidiaries without duplication, the sum of the amounts
for such period of: (a) Consolidated Net Income, PLUS (b) an amount which, in
the determination of Consolidated Net Income has been deducted for (i)
Consolidated Interest Expense, (ii) all federal and state income tax expense,
(iii) depreciation and amortization expense, and (iv) all other non-cash
charges, all of the foregoing as determined and computed on a Consolidated basis
in accordance with GAAP; PROVIDED, that for purposes of calculating Consolidated
EBITDA of the Company for any period of four consecutive fiscal quarters (each,
a "REFERENCE PERIOD") pursuant to any determination of the Leverage Ratio, (x)
the Consolidated EBITDA of (or attributable to) (A) any other Person, (B) all or
substantially all of the business or assets of any other Person or (C) operating
division or business unit of any other Person, acquired by, or merged into or
consolidated with, the Company or one of its Consolidated Subsidiaries during
such Reference Period, in each case under this clause (x), shall be included on
a pro forma basis for such Reference Period as if such acquisition, merger or
consolidation in connection therewith occurred on the first day of such
Reference Period and (y) the Consolidated EBITDA of (or attributable to) (A) any
Consolidated Subsidiary whose Capital Stock is sold or otherwise transferred to
any Person other than to the Company or to a Consolidated Subsidiary of the
Company during such Reference Period such that as a result of such sale or
transfer such Consolidated Subsidiary ceases to be a Subsidiary of the Company,
(B) assets (whether all or substantially all) of the Company or any Consolidated
Subsidiary sold, leased or otherwise transferred to any Person other than to the
Company or to a Subsidiary of the Company during such Reference Period or (C) an
operating division or business unit of the Company or any Consolidated
Subsidiary sold, leased or otherwise transferred to any Person other than to the
Company or to a Consolidated Subsidiary of the Company during such Reference
Period, in each case under this clause (y), shall be excluded on a pro forma
basis for such Reference Period as if the consummation of such sale, lease or
other transfer occurred on the first day of such Reference Period so long as the
Consolidated EBITDA of (or attributable to) such Capital Stock, asset, operating
division or business unit sold or otherwise transferred, exceeds 5% of
Consolidated Operating Profit for the immediately preceding Fiscal Year.
6
"CONSOLIDATED FUNDED DEBT" means, as of any date, without duplication,
all Debt of the Company and its Consolidated Subsidiaries of the type referred
to in clauses (a), (b), (f), (g), (h), (i), (j) (but in the case of clause (j),
only to the extent of any drawn amount of such letters of credit) and (l) and
(m) of the definition of "Debt" set forth in this Section 1.1, all of the
foregoing as determined and computed on a Consolidated basis in accordance with
GAAP. Any Debt described in clauses (l) and (m) of the definition of Debt shall
be included in the calculation of Consolidated Funded Debt even if the
applicable Subsidiary (including any Permitted Securitization Subsidiary) is not
consolidated under GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, as applied to the
Company and its Consolidated Subsidiaries, for any period determined on a
consolidated basis in accordance with GAAP, the sum of (i) total interest
expense, including without limitation the interest component of any payments in
respect of capital leases capitalized or expensed during such period (whether or
not actually paid during such period) PLUS (ii) the net amount payable (or MINUS
the net amount receivable) under Hedging Agreements during such period (whether
or not actually paid or received during such period), in each case as determined
and computed on a Consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net income, after
taxes, of the Company and its Consolidated Subsidiaries for such period as
determined and computed on a Consolidated basis in accordance with GAAP.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any date, Consolidated
Total Assets, less the sum of the value, as set forth or reflected in the most
recent Consolidated balance sheet of the Company and its Consolidated
Subsidiaries, prepared in accordance with GAAP of:
(i) All assets which would be treated as intangible assets
for balance sheet presentation purposes under GAAP, excluding "Purchased
Data Files," but including, without limitation, goodwill (as determined
by the Company in a manner consistent with its past accounting practices
and in accordance with GAAP), trademarks, tradenames, copyrights,
patents and technologies, and unamortized debt discount and expense;
(ii) To the extent not included in (i) of this definition,
any amount at which shares of Capital Stock of the Company appear as an
asset on the balance sheet of its Consolidated Subsidiaries; and
(iii) To the extent not included in (i) of this definition,
deferred expenses.
"CONSOLIDATED OPERATING PROFIT" means, for any period, the Operating
Profit of the Company and its Consolidated Subsidiaries, all of the foregoing as
determined and computed on a Consolidated basis in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which, in accordance with GAAP, are Consolidated with
those of the Company in its Consolidated financial statements as of such date.
7
"CONSOLIDATED TOTAL ASSETS" means, as of any date, the assets and
properties of the Company and its Consolidated Subsidiaries, as determined and
computed on a Consolidated basis in accordance with GAAP.
"CREDIT FACILITY" means the collective reference to Revolving Credit
Facility and the L/C Facility or any one of them, as the context requires.
"CSC" means Computer Sciences Corporation, a Nevada corporation.
"CSC AGREEMENT" means the Agreement for Computerized Credit Reporting
Services and Options to Purchase and Sell Assets, dated as of the 1st day of
August, 1988, among EIS, the Company, CSC and certain other parties, as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"CSC PUT" means the right of certain subsidiaries of CSC under the CSC
Agreement to, require EIS to purchase their credit reporting businesses within
180 days after notice.
"DEBT" of any Person means at any date, 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 under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such Person (i)
issued or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business on terms customary in the trade) which would appear as liabilities
on a balance sheet of such Person or (ii) arising out of the CSC Put after the
receipt by the Company or any of its Subsidiaries of notice from CSC or any of
its Subsidiaries regarding the intent to exercise the CSC Put, (e) all
obligations of such Person under take or pay or similar arrangements or under
commodities agreements, (f) all Debt of others secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, PROVIDED that for purposes hereof the amount
of such Debt shall be limited to the greater of (i) the amount of such Debt as
to which there is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (g) all Support Obligations of such
Person with respect to a Debt of another Person, (h) the principal portion of
all obligations of such Person under Capital Leases, (i) all net obligations of
such Person in respect of Hedging Agreements, (j) the maximum amount of all
standby letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed or not cash collateralized), (k) all preferred stock
issued by such Person and required by the terms thereof to be redeemed, or for
which mandatory sinking fund payments are due, by a fixed date, (l) the
outstanding attributed principal amount under any asset securitization program
of such Person (including without limitation any notes or accounts receivable
financing program) and (m) the principal balance outstanding under any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a party, where such
transaction is considered borrowed
8
money indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP. The Debt of any Person shall include the Debt of any
partnership or joint venture in which such Person is a general partner or a
joint venturer, but only to the extent to which there is recourse to the assets
(other than the ownership interest in such partnership or joint venture) of such
Person for payment of such Debt.
"DEFAULT" means any of the events specified in Section 11.1 which, with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a Lender
Default is in effect.
"DESIGNATED BORROWER" means any Applicant Borrower that becomes a
Borrower under this Agreement in accordance with the provisions of Section 2.10.
"DESIGNATING LENDER" has the meaning set forth in Section 13.9(i).
"DETERMINATION DATE" shall have the meaning assigned thereto in Section
2.9(a).
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"DOLLAR EQUIVALENT" means, at any time, (a) as to any amount denominated
in Dollars, the amount thereof at such time, and (b) as to any amount
denominated in an Offshore Currency, the equivalent amount in Dollars as
determined by the Administrative Agent at such time on the basis of the Spot
Rate for the purchase of Dollars with such Offshore Currency on the most recent
Determination Date provided for in Section 2.9(a).
"EIS" means Equifax Information Services, LLC, formerly known as Equifax
Credit Information Services, Inc.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender or
any fund that invests in bank loans and is managed by an investment advisor to a
Lender; and (c) any other Person approved by the Administrative Agent and,
unless a Default or Event of Default has occurred and is continuing at the time
any assignment is effected in accordance with Section 13.9, the Company (such
approval not to be unreasonably withheld or delayed by the Company and such
approval to be deemed given by the Company if no objection is received by the
assigning Lender and the Administrative Agent from the Company within five (5)
Business Days after notice of such proposed assignment has been provided by the
assigning Lender to the Company); PROVIDED, HOWEVER, that neither a Borrower nor
an Affiliate of a Borrower shall qualify as an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of a
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of a Borrower or any current or former
ERISA Affiliate.
9
"EMU LEGISLATION" means legislative measures of the European Council
(including without limitation European Council regulations) for the introduction
of, changeover to, or operation of, the euro.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
binding interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ENVIRONMENTAL PERMITS" shall have the meaning assigned thereto in
Section 6.1(h).
"EQUITY ISSUANCE" means any issuance by the Company or any of its
Subsidiaries to any Person other than the Company or any of its Subsidiaries of
(a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to
the exercise of options or warrants or (c) any shares of its Capital Stock
pursuant to the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
"ERISA AFFILIATE" means any Person who together with a Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"EURO" means the single currency of Participating Member States of the
European Community.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"EUROPEAN COMMUNITY" means those European countries that are signatories
to the Treaty on European Union.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (b) such Lender's Revolving Credit
Commitment Percentage of the L/C Obligations
10
then outstanding, (c) the aggregate principal amount of all Competitive Bid
Loans made by such Lender then outstanding and (d) such Lender's Revolving
Credit Commitment Percentage of all Swingline Loans then outstanding. "EXTENSION
OF CREDIT" means, as to any Lender (a) any component of such Lender's Extensions
of Credit or (b) the making of, or participation in, a Loan by such Lender or
the issuance or extension of, or participation in, a Letter of Credit by such
Lender, as the context may require.
"FACILITY FEE" shall have the meaning assigned thereto in Section
4.3(a).
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FISCAL YEAR" means the fiscal year of the Company and its Subsidiaries
ending on or about December 31.
"FOREIGN CURRENCY SUBLIMIT" shall mean $100,000,000, as such amount may
be reduced from time to time pursuant to the terms of this Agreement.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company 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.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by a Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of such Borrower or
such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"FOREIGN SUBSIDIARY" means each Subsidiary of the Company that is not
incorporated under the laws of the United States or any State or territory
thereof.
"FUND" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
11
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis throughout the period indicated.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"GUARANTEED OBLIGATIONS" means, without duplication, all of the
Obligations of the Designated Borrowers to the Lenders and the Administrative
Agent, whenever arising, under this Agreement, the Borrower Joinder Agreements,
any L/C Applications, the Notes and any other Loan Documents (including, but not
limited to, obligations with respect to principal, interest and fees and
obligations of any Designated Borrower under Section 13.2 hereof).
"HAZARDOUS MATERIALS" means any substances or materials (a) which are or
become regulated or defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
to human health or the environment and are or become regulated by any
Governmental Authority, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Applicable Law or other
Governmental Approval, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"HEDGING AGREEMENT" means any agreement with respect to an interest rate
swap, collar, cap, floor or forward rate agreement, foreign currency agreement
or other agreement regarding the hedging of interest rate risk exposure executed
in connection with hedging the interest rate exposure of any Person, and any
confirming letter executed pursuant to such hedging agreement, all as amended,
restated or otherwise modified from time to time.
"INTEREST COVERAGE RATIO" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for the period of four (4) consecutive fiscal quarters
ending as of such day.
"INTEREST PERIOD" shall have the meaning assigned thereto in Section
4.1(b).
"INVESTMENT" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Debt, securities or otherwise) of shares of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or securities issued by such Person, (b) any deposit with,
or advance, loan or other extension of credit to, such Person (other
12
than those made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution to or
investment in such Person including, without limitation, any Support Obligation
(including any support for a letter of credit issued on behalf of such person)
incurred for the benefit of such Person.
"ISSUING LENDER" means with respect to any Letter of Credit, SunTrust
Bank in its capacity as issuer of such Letter of Credit and any successor
Issuing Lender appointed pursuant to Section 13.9(b) upon the resignation of
SunTrust Bank.
"L/C APPLICATION" means an application, in the form specified by any
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"L/C COMMITMENT" means Thirty-Five Million Dollars ($35,000,000).
"L/C FACILITY" means the letter of credit facility established pursuant
to Article III hereof.
"L/C FEE" shall have the meaning assigned thereto in Section 3.3(a).
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of (a)
the Dollar Equivalent of the aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the Dollar Equivalent of the aggregate
amount of drawings under Letters of Credit which have not then been reimbursed
pursuant to Section 3.5.
"L/C PARTICIPANTS" means the collective reference to all the Lenders
having a Revolving Credit Commitment other than the applicable Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender as set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.9(b), other than any
party hereto that ceases to be a party hereto pursuant to any Assignment and
Acceptance.
"LENDER DEFAULT" means (a) the refusal (which has not been retracted) or
the failure of a Lender to make available its portion of any Mandatory Borrowing
or (b) a Lender having notified in writing the Company and/or the Administrative
Agent that such Lender does not intend to comply with its obligations under
Section 2.6(b), in the case of either clause (a) or (b) as a result of any
takeover or control of such Lender by any Governmental Authority.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Revolving Credit Commitment Percentage of the
Revolving Credit Loans.
"LETTER OF CREDIT" means any standby or commercial letter of credit
issued hereunder.
"LEVERAGE RATIO" means, as of the last day of any fiscal quarter, the
ratio of (a) Consolidated Funded Debt on such day to (b) Consolidated EBITDA for
the period of four (4) consecutive fiscal quarters ending as of such day.
13
LIBOR" means for any Offshore Rate Loan for any Interest Period, the
rate per annum quoted at or about 11:00 a.m. (London, England time) two business
days before the commencement of such Interest Period on that page of the
Reuters, Telerate or Bloombergs reporting service (as then being used by the
Administrative Agent to obtain such interest rate quotes) that displays British
Bankers' Association interest settlement rates for deposits in the applicable
currency of such eurocurrency borrowing, or if such page or such service shall
cease to be available, such other page or other service (as the case may be) for
the purpose of displaying British Bankers' Association interest settlement rates
as reasonably determined by the Administrative Agent upon advising the Company
as to the use of any such service. If for any reason any such interest
settlement rate for such Interest Period is not available to the Administrative
Agent through any such interest rate reporting service, then "LIBOR" with
respect to such borrowing will be the rate at which the Administrative Agent is
offered deposits for such applicable currency in the Dollar Equivalent of
$1,000,000 for a period approximately equal to such Interest Period in the
London interbank market at 10:00 a.m. two Business Days before the commencement
of such Interest Period.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease (excluding,
however, any synthetic leases) or other title retention agreement relating to
such asset.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Administrative Agent's Fee Letter, the L/C Applications, any Borrower Joinder
Agreement and each other document, instrument and agreement executed and
delivered by any Borrower, its Subsidiaries in connection with this Agreement or
otherwise contemplated hereby, all as may be amended, restated or otherwise
modified.
"LOANS" means the collective reference to the Revolving Credit Loans,
the Competitive Bid Loans and the Swingline Loans; "LOAN" means any one of such
Loans.
"MANDATORY BORROWING" shall have the meaning assigned thereto in Section
2.6(b).
"MATERIAL ADVERSE EFFECT" means any of (a) a material adverse effect on
the business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole, (b) a material adverse effect on the ability of any Borrower to
perform its obligations under the Loan Documents, in each case to which it is a
party, or (c) a material adverse effect on the rights or remedies of the Lenders
or the Administrative Agent hereunder or under any other Loan Document.
"MATERIAL SUBSIDIARY" shall mean at any time any direct or indirect
Subsidiary of the Company having: (a) assets in an amount equal to at least 5%
of the total assets of the Company and its Subsidiaries determined on a
consolidated basis as of the last day of the most recent fiscal quarter of the
Company at such time; or (b) revenues or net income in an amount equal to at
least
14
5% of the total revenues or net income of the Company and its Subsidiaries on a
consolidated basis for the 12-month period ending on the last day of the most
recent fiscal quarter of the Company at such time.
"MATURITY DATE" means August 20, 2009.
"MLA COST" means an addition to the interest rate on a Revolving Credit
Loan to compensate any Lender for the cost imputed to a Lender in respect of any
Revolving Credit Loan made in an Offshore Currency during the term of such Loan
resulting from the imposition from time to time under or pursuant to the Bank of
England Act 1998 (the "ACT") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place non-interest-bearing cash ratio deposits
or Special Deposits (whether interest bearing or not) with the Bank of England
and/or pay fees to the FSA calculated by reference to liabilities used to fund
the Revolving Credit Loan made in such Offshore Currency, as determined in
accordance with SCHEDULE 4.1(F).
"XXXXX'X" means Xxxxx'x Investors Service, Inc. or any successor or
assignee in the business of rating securities.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is making, has
made, is accruing or has accrued an obligation to make, contributions within the
preceding six years.
"NOTES" means the collective reference to the Revolving Credit Notes;
"NOTE" means any one of such Notes.
"NOTICE OF ACCOUNT DESIGNATION" shall have the meaning assigned thereto
in Section 2.2(b).
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning assigned
thereto in Section 4.2.
"NOTICE OF PREPAYMENT" shall have the meaning assigned thereto in
Section 2.3(c).
"NOTICE OF REVOLVING CREDIT BORROWING" shall have the meaning assigned
thereto in Section 2.2(a).
"NOTICE OF SWINGLINE BORROWING" shall have the meaning assigned thereto
in Section 2.6(d).
"OBLIGATIONS" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, and (b) all other
fees and commissions (including reasonable and actual attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrowers to the Lenders or the Administrative
Agent, of every kind, nature and description, direct or indirect, absolute or
contingent, due or to
15
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, in each case under or in respect of this Agreement,
any Note, or any of the other Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" shall have the meaning assigned
thereto in Section 7.2.
"OFFSHORE CURRENCY" means euro, Australian Dollars, Canadian Dollars,
Singapore Dollars, Swedish Kroner, Danish Kroner, Norwegian Kroner, Japanese
Yen, New Zealand Dollars, Sterling, Swiss Franc and any Agreed Alternative
Currency determined in accordance with Section 2.9(e).
"OFFSHORE CURRENCY LOAN" means any Offshore Rate Loan or Competitive Bid
Loan denominated in an Offshore Currency.
"OFFSHORE RATE" means, for any Interest Period, with respect to an
Offshore Rate Loan, the rate of interest per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as follows:
Offshore Rate = LIBOR
-------------------------------------
1.00 - Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurodollar
Reserve Percentage.
"OFFSHORE RATE LOAN" means a Revolving Credit Loan or a Swingline Loan
bearing interest at a rate based upon the Offshore Rate as provided in Section
4.1(a) and, if a Revolving Credit Loan, may be an Offshore Currency Loan or a
Revolving Credit Loan denominated in Dollars.
"OPERATING LEASE" shall mean, as to any Person, as determined in
accordance with GAAP, any lease of property (whether real, personal or mixed) by
such Person as lessee which is not a Capital Lease.
"OPERATING PROFIT" means, as applied to any Person for any period, the
operating revenue of such Person for such period, less (i) its costs of services
for such period and (ii) its selling, general and administrative costs for such
period but excluding therefrom all extraordinary gains or losses, all as
determined and computed in accordance with GAAP
"OTHER TAXES" shall have the meaning assigned thereto in Section
4.11(b).
"PARTICIPATING MEMBER STATE" means each country so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor agency.
16
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and is maintained for the employees of a Borrower or any
of its ERISA Affiliates.
"PERMITTED SECURITIZATION SUBSIDIARY" shall mean any Subsidiary of the
Company that (i) is directly or indirectly wholly-owned by the Company, (ii) is
formed and operated solely for purposes of a Permitted Securitization
Transaction provided that such Permitted Securitization Subsidiary may invest up
to $3,500,000 in publicly traded stock of one or more Persons, and (iii) has
organizational documents which limit the permitted activities of such Permitted
Securitization Subsidiary to the acquisition of accounts receivable and related
rights from the Company or one or more of its Consolidated Subsidiaries or
another Permitted Securitization Subsidiary, the securitization or other
financing of such accounts receivable and related rights and activities
necessary or incidental to the foregoing.
"PERMITTED SECURITIZATION TRANSACTION" shall mean the transfer by the
Company or one or more of its Consolidated Subsidiaries of receivables and
rights related thereto to one or more Permitted Securitization Subsidiaries and
the related financing of such receivables and rights related thereto; provided
that the aggregate total amount of all Debt outstanding to third parties under
all Permitted Securitization Transactions shall not exceed $250,000,000 in the
aggregate outstanding at any time.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"PRICING LEVEL" means the level on the table of Applicable Percentages
corresponding to the Applicable Rating of the Company then in effect.
"PRIME RATE" shall mean the rate which SunTrust announces from time to
time as its prime lending rate, as in effect from time to time (any changes in
such rate to be effective as of the date of any change in such rate). The
SunTrust prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. SunTrust may
make commercial loans or other loans at rates of interest at, above, or below
the SunTrust prime lending rate.
"PRIOR BANK AGREEMENT" means the Company's committed credit facility
evidenced by that certain Credit Agreement dated as of October 4, 2001 among the
Company, the several financial institutions from time to time party thereto and
Bank of America, N.A., as administrative agent, as amended and modified prior to
the Closing Date.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"REAL PROPERTY" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
leaseholds.
17
"REIMBURSEMENT OBLIGATION" means the obligation of a Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued at the request of the Company, on behalf of such
Borrower.
"REGISTER" shall have the meaning assigned thereto in Section 13.9(c).
"REPORTABLE EVENT" shall mean an event described in Section 4043(c) of
ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
than those events as to which the 30-day notice period is waived under
subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.
"REQUIRED LENDERS" means, at any date, any combination of Lenders whose
Revolving Credit Commitment Percentage in the aggregate exceeds more than fifty
percent (50%) of the Aggregate Revolving Credit Commitment or, if the Aggregate
Revolving Credit Commitment has been terminated, any combination of Lenders who
collectively hold more than fifty percent (50%) of the aggregate unpaid
principal amount of the Extensions of Credit (excluding the aggregate unpaid
principal amount of Competitive Bid Loans); PROVIDED that, for purposes of
declaring the Loans to be due and payable pursuant to Article XI, and for all
purposes after the Loans become due and payable pursuant to Article XI, the
outstanding Competitive Bid Loans of the Lenders shall be included in the
Lenders' respective Revolving Credit Commitment or Extensions of Credit, as
applicable, in determining the Required Lenders.
"RESPONSIBLE OFFICER" means any of the following: the chairman,
president, chief executive officer, chief financial officer or treasurer of the
Company or any other officer of the Company reasonably acceptable to the
Administrative Agent; PROVIDED that the term "Responsible Officer" shall be
deemed to refer to only the treasurer or chief financial officer of the Company
in connection with any matters involving the determination of financial covenant
compliance or the certification of financial statements.
"RESTRICTED INVESTMENTS" means Investments in joint ventures and other
Persons which are not Consolidated Subsidiaries. Restricted Investments shall
not include Investments made in the acquisition of a Person which becomes a
Consolidated Subsidiary upon the closing of such acquisition.
"RESTRICTED PAYMENT" means (i) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Company or any of its Subsidiaries, now or hereafter
outstanding (including without limitation any payment in connection with any
dissolution, merger, consolidation or disposition involving any of the Company
or any of its Subsidiaries), or to the holders, in their capacity as such, of
any shares of any class of Capital Stock of the Company or any of its
Subsidiaries, now or hereafter outstanding (other than dividends or
distributions payable in Capital Stock of the applicable Person and dividends or
distributions payable (directly or indirectly through Subsidiaries) to the
Company or any Wholly-Owned Subsidiary of the Company), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock of the
Company or any of its Subsidiaries, now or hereafter outstanding (other than
such transactions payable (directly or indirectly through Subsidiaries) to the
Company or any Wholly-
18
Owned Subsidiary of the Company) and (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of the Company or any of its
Subsidiaries (other than such payments payable (directly or indirectly through
Subsidiaries) to the Company or any Wholly-Owned Subsidiary of the Company).
"REVOLVING CREDIT COMMITMENT" means as to any Lender, the obligation of
such Lender to make Revolving Credit Loans for the accounts of the Borrowers in
an aggregate principal Dollar Equivalent amount at any time outstanding not to
exceed the amount set forth opposite such Lender's name on SCHEDULE 1.1(A)
hereto as such amount may be reduced or modified at any time or from time to
time pursuant to the terms hereof.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Aggregate Revolving Credit Commitment.
"REVOLVING CREDIT FACILITY" means the revolving credit facility
established pursuant to Section 2.1 hereof.
"REVOLVING CREDIT LOANS" means the collective reference to the revolving
loans made to a Borrower pursuant to Section 2.2 under the Revolving Credit
Facility; "REVOLVING CREDIT LOAN" means any of such Revolving Credit Loans.
"REVOLVING CREDIT NOTES" means the collective reference to the Revolving
Credit Notes made by the applicable Borrower payable to the order of each Lender
with a Revolving Credit Commitment substantially in the form of EXHIBIT A-1
hereto or EXHIBIT A-2 hereto, as appropriate, and any amendments and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part; "REVOLVING
CREDIT NOTE" means any of such Revolving Credit Notes.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor or assignee in the business of
rating securities.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Borrower or Subsidiary thereof of any Property, whether
owned by such Borrower or Subsidiary as of the Closing Date or later acquired,
which has been or is to be sold or transferred by such Borrower or Subsidiary to
such Person or to any other Person from whom funds have been, or are to be,
advanced by such Person on the security of such Property.
"SEC REPORTS" shall have the meaning assigned thereto in Section 6.1(w).
"SPOT RATE" for a currency means the rate quoted by the Administrative
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange trading office at
approximately 8:00 a.m. (Atlanta time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
19
"STANDARD SECURITIZATION UNDERTAKINGS" shall mean any obligations and
undertakings of the Company and any Consolidated Subsidiary consisting of
representations, warranties, covenants, and indemnities standard in
securitization transactions and related servicing of receivables.
"STERLING" means Pound Sterling, the currency of the United Kingdom.
"SUBORDINATED DEBT" means the collective reference to Debt of the
Borrowers or any Subsidiary thereof subordinated in right and time of payment to
the Obligations and otherwise permitted hereunder.
"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 fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case of a partnership, more than fifty percent
(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. As used herein, for purposes of any covenant, a
Subsidiary of the Company or a Borrower refers to all direct and indirect
Subsidiaries of such Person. Unless otherwise qualified, references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the Company.
"SUNTRUST" means SunTrust Bank and its successors and assigns.
"SUPPORT OBLIGATION" means, with respect to any Person and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
any such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement condition or
otherwise) or (b) entered into for the purpose of assuring in any other manner
the obligee of such Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); PROVIDED that the term
Support Obligation shall not include (i) endorsements for collection or deposit
in the ordinary course of business or (ii) a contractual commitment by one
Person to invest in another Person for so long as such investment is expected to
constitute a Permitted Investment.
"SWINGLINE LENDER" means SunTrust in its capacity as issuer of any
Swingline Loan.
20
"SWINGLINE LOANS" means the collective reference to the revolving loans
made by the Swingline Lender pursuant to Section 2.6; "SWINGLINE LOAN" means any
of such Swingline Loans.
"SWINGLINE MAXIMUM" means Fifty Million Dollars ($50,000,000).
"SWINGLINE RATE" shall mean, for any Interest Period, the rate as
offered by the Administrative Agent and accepted by the Company. The Company is
under no obligation to accept this rate and the Administrative Agent is under no
obligation to provide it.
"TARGET" means the Trans-European Automated Real-time Gross settlement
Express Transfer system.
"TARGET BUSINESS DAY" means a day when TARGET is open for business.
"TAXES" shall have the meaning assigned thereto in Section 4.11(a).
"TERMINATION DATE" means the earliest of the dates referred to in
Section 2.8.
"TERMINATION EVENT" means any of the following: (a) the occurrence of a
Reportable Event, or (b) the withdrawal of a Borrower or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or to seek the
appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer any Pension Plan, or (f) the partial or complete withdrawal of a
Borrower or any ERISA Affiliate from a Multiemployer Plan, or (g) the imposition
of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (h)
any event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, (i) any event or
condition which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA or (j) the withdrawal or partial
withdrawal of any Borrower or ERISA Affiliate from a Multiemployer Plan.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"UCC" means, with respect to any Letter of Credit, the Uniform
Commercial Code as in effect in the State in which the corporate headquarters of
the relevant Issuing Lender is located or such other jurisdiction as is
acceptable to the relevant Issuing Lender, as amended, restated or otherwise
modified from time to time.
21
"UNFUNDED CURRENT LIABILITY" of any Pension Plan means the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Pension Plan as of the close of its most recent year, determined in
accordance with actuarial assumptions at such time consistent with Statement of
Financial Accounting Standards No 87, exceeds the sum of (a) the market value of
the assets allocable thereto and (b) $100,000.
"UNITED STATES" means the United States of America.
"WHOLLY-OWNED" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary (except
directors' qualifying shares, or, in the case of any Subsidiary which is not
organized or created under the laws of the United States of America or any
political subdivision thereof, such nominal ownership interests which are
required to be held by third parties under the laws of the foreign jurisdiction
under which such Subsidiary was incorporated or organized) are, directly or
indirectly, owned or controlled by any Borrower and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 GENERAL.
Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a reference to that
section, subsection, Schedule or Exhibit of this Agreement. Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine and
neuter. Any reference herein to "Atlanta time," "San Francisco time" or "London
time" shall refer to the applicable time of day in Atlanta, Georgia, San
Francisco, California or London, England, as applicable. All references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
provided herein when used in this Agreement, the Notes and the other Loan
Documents or any certificate, report or other document made or delivered
pursuant to this Agreement.
(b) MISCELLANEOUS. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. 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". In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the word "to" means "to but excluding". Unless the
context requires otherwise (i) 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 it was originally
22
executed or as it may from time to time be amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any Person shall
be construed to include such Person's successors and permitted assigns, and
(iii) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement.
SECTION 1.4 CURRENCY EQUIVALENTS GENERALLY.
For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto or determining
in compliance with any covenant herein), the equivalent in any Offshore Currency
or other currency of an amount in Dollars, and the equivalent in Dollars of an
amount in any Offshore Currency or other currency, shall be determined at the
Spot Rate.
SECTION 1.5 SPECIAL PROVISIONS RELATING TO CURRENCY
(a) CURRENCY TRANSLATIONS; ROUNDING. Any translation from one
currency or currency unit to another shall be at the rate specified herein or,
if not so specified, then at the official rate of exchange legally recognized by
the central bank of the country issuing such currency for the conversion of that
currency or currency unit into the other. Any such translation shall be rounded
up or down by the Administrative Agent acting in accordance with any Applicable
Law on rounding or, if there is no such law, acting reasonably in accordance
with its market practice.
(b) CHANGES IN CURRENCY. If a change in any currency of a country
occurs, the Borrowers agree to negotiate promptly and in good faith an amendment
to this Agreement that effectuates those modifications the Administrative Agent
(acting reasonably and in consultation with the Company) specifies to be
necessary to reflect the change in currency and to put the parties hereto in the
same position, as far as possible, that they would have been in if no change in
currency had occurred; PROVIDED that any such amendments will not adversely
affect the Lenders.
ARTICLE II
CREDIT FACILITIES
SECTION 2.1 AMOUNT AND TERMS OF CREDIT.
(a) DESCRIPTION OF FACILITIES. Upon the terms and subject to the
conditions set forth in this Agreement: (i) the Lenders hereby grant to the
Borrowers a revolving credit facility (the "REVOLVING CREDIT FACILITY") pursuant
to which each Lender severally agrees to make Revolving Credit Loans to the
respective Borrowers in accordance with Section 2.2, and the Swingline Lender
agrees to make Swingline Loans to the Company in Dollars in accordance with
Section
23
2.6 and (ii) the parties hereto agree that each Lender may, in its sole
discretion, make bids to make Competitive Bid Loans to the respective Borrowers
in Dollars and Offshore Currencies, in accordance with Section 2.5; PROVIDED
that (A) the aggregate principal Dollar Equivalent amount of all outstanding
Revolving Credit Loans (after giving effect to any amount requested) made under
the Revolving Credit Facility PLUS the aggregate principal amount of all
outstanding Swingline Loans made under the Revolving Credit Facility (after
giving effect to the amount of any Swingline Loans requested under the Revolving
Credit Facility and exclusive of Swingline Loans made under the Revolving Credit
Facility which are repaid with the proceeds of, and simultaneously with the
incurrence of, Revolving Credit Loans under the Revolving Credit Facility) shall
not exceed the Aggregate Revolving Credit Commitment LESS the sum of (x) all
outstanding L/C Obligations PLUS (y) the aggregate principal Dollar Equivalent
amount of all outstanding Competitive Bid Loans; (B) the principal Dollar
Equivalent amount of outstanding Revolving Credit Loans by any Lender plus
Lender's pro rata share of its participation interests in all outstanding L/C
Obligations and Swingline Loans shall not at any time exceed such Lender's
Revolving Credit Commitment; and (C) the aggregate Dollar Equivalent amount of
outstanding Revolving Credit Loans and Competitive Bid Loans funded in an
Offshore Currency shall at no time exceed the Foreign Currency Sublimit then in
effect. Each Revolving Credit Loan made by a Lender shall be in a principal
Dollar Equivalent amount equal to such Lender's Revolving Credit Commitment
Percentage of the aggregate principal Dollar Equivalent amount of Revolving
Credit Loans requested under such facility on such occasion.
(b) APPLICATION OF FACILITIES. The Credit Facility established
hereby shall be used by the Borrowers and their respective Subsidiaries to:
(i) refinance existing Debt of the Company and its
Subsidiaries, including without limitation, Debt outstanding under the
Prior Bank Agreement and Swingline Loans;
(ii) finance non-hostile acquisitions by the Company and its
Subsidiaries that are permitted hereunder; and
(iii) finance the working capital, capital expenditures and
other lawful corporate purposes of the Company and its Subsidiaries;
and, accordingly, each of the Borrowers shall apply all amounts raised by such
Borrower hereunder in or towards satisfaction of such purposes and neither the
Administrative Agent and the Lenders nor any of them shall be obliged to concern
themselves with such application.
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS.
(a) REQUESTS FOR REVOLVING CREDIT LOANS. The Company, on behalf of a
Borrower, shall give the Administrative Agent irrevocable prior written notice
in the form attached hereto as EXHIBIT B-1 (a "NOTICE OF REVOLVING CREDIT
BORROWING") not later than 11:00 a.m. (Atlanta time) (i) on the same Business
Day of the date of borrowing for each Base Rate Loan, (ii) at least two (2)
Business Days before each Offshore Rate Loan denominated in Dollars, and (iii)
at least
24
three (3) Business Days before each Offshore Currency Loan, of its intention to
borrow, specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be in an amount equal to the
unused amount of the Revolving Credit Commitment, as applicable, or if less, (x)
with respect to Base Rate Loans, in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof, (y) with respect to Offshore Rate Loans
denominated in Dollars, in an aggregate principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof and (z) with respect to Offshore
Rate Loans denominated in an Offshore Currency, in an aggregate principal amount
of a whole multiple of 500,000 units of such Offshore Currency in excess of an
amount of such Offshore Currency having a Dollar Equivalent of $1,000,000, (C)
whether such Revolving Credit Loan is to be an Offshore Rate Loan or Base Rate
Loan, (D) in the case of an Offshore Rate Loan, the duration of the Interest
Period applicable thereto and in the case of Offshore Rate Loans, the Applicable
Currency and (E) the name of the applicable Borrower. Notices received after
11:00 a.m. (Atlanta time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Revolving Credit Borrowing. The Dollar Equivalent amount of an Offshore Currency
Loan will be determined by the Administrative Agent for such Offshore Currency
Loan on the Determination Date therefor in accordance with Section 2.9(a).
(b) DISBURSEMENT OF REVOLVING CREDIT LOANS. Each Lender will make
available to the Administrative Agent, for the accounts of the respective
Borrowers, at the Administrative Agent's Office in funds immediately available
to the Administrative Agent, such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing date (i)
in the case of a Revolving Credit Loan denominated in Dollars, no later than
2:00 p.m. (Atlanta time) on the proposed borrowing date and (ii) in the case of
a Revolving Credit Loan that is an Offshore Currency Loan, by such time as the
Administrative Agent may determine to be necessary for such funds to be credited
on such date in accordance with normal banking practices in the place of
payment. Each Borrower hereby irrevocably authorizes the Administrative Agent,
and the Administrative Agent hereby agrees, to disburse the proceeds of each
borrowing requested by the Company, on behalf of such Borrower, pursuant to this
Section 2.2 in immediately available funds by no later than 3:00 p.m. (Atlanta
time) on the proposed borrowing date by crediting or wiring such proceeds to the
deposit account of such Borrower identified in the most recent notice of account
designation, substantially in the form of EXHIBIT C hereto (a "NOTICE OF ACCOUNT
DESIGNATION"), delivered by the Company, on behalf of such Borrower, to the
Administrative Agent or as may be otherwise agreed upon by such Borrower and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 for
which any Lender is responsible to the extent that such Lender has not made
available to the Administrative Agent its Revolving Credit Commitment Percentage
of such Revolving Credit Loan.
SECTION 2.3 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. Each Borrower agrees to repay the
outstanding principal amount of all Loans made to it under, and its
Reimbursement Obligation under, the
25
Revolving Credit Facility in full on the Termination Date, with all accrued but
unpaid interest thereon.
(b) MANDATORY REPAYMENT OF LOANS.
(i) If at any time the sum of the outstanding principal
Dollar Equivalent amount of all Loans and all outstanding L/C
Obligations exceeds the Revolving Credit Commitment of all Lenders, in
each case other than solely as a result of a change in applicable rates
of exchange between Dollars and Offshore Currencies, the Borrowers agree
to repay immediately upon notice from the Administrative Agent, by
payment to the Administrative Agent for the account of the Lenders,
Revolving Credit Loans, Swingline Loans or Competitive Bid Loans made to
it, L/C Obligations incurred by it and/or furnish cash collateral
reasonably satisfactory to the Administrative Agent, in an amount equal
to such excess. Such cash collateral shall be applied in accordance with
Section 11.2(b).
(ii) If on any Determination Date, the Administrative Agent
shall have determined that the aggregate principal Dollar Equivalent
amount of all Loans and L/C Obligations then outstanding exceeds the
Aggregate Revolving Credit Commitment by more than $5,000,000 due to a
change in applicable rates of exchange between Dollars and Offshore
Currencies, then the Administrative Agent shall give notice to the
Company that a prepayment is required under this Section 2.3(b)(ii) and
each of the Borrowers agrees thereupon to make prepayments of Loans made
to it within two (2) Business Days after the Company's receipt of such
notice such that, after giving effect to such prepayments, the aggregate
Dollar Equivalent amount of all Loans and L/C Obligations then
outstanding does not exceed the Aggregate Revolving Credit Commitment.
(iii) If on any Determination Date, the Administrative Agent
shall have determined that the aggregate principal Dollar Equivalent
amount of all Offshore Currency Loans then outstanding exceeds the
Foreign Currency Sublimit by more than $5,000,000 due to a change in
applicable rates of exchange between Dollars and Offshore Currencies,
then the Administrative Agent shall give notice to the Company that a
prepayment is required under this Section 2.3(b)(iii) and each of the
Borrowers agrees thereupon to make prepayments of Loans made to it
within two (2) Business Days after the Company's receipt of such notice
such that, after giving effect to such prepayments, the aggregate Dollar
Equivalent amount of all Offshore Currency Loans then outstanding does
not exceed the Foreign Currency Sublimit.
(iv) Notwithstanding anything to the contrary in Section
2.3(b)(ii) or (iii), the mandatory repayment described in such Section
of any Offshore Rate Loans may be delayed until the last day of the
Interest Period applicable to such Offshore Rate Loans; PROVIDED, that
if the Borrowers so delay repayment of Offshore Rate Loans, the
Borrowers shall deposit or cause to be deposited, on the day repayment
would have otherwise been required, in a cash collateral account opened
by the Administrative Agent, an amount equal to the aggregate principal
amount of such delayed mandatory repayment of Offshore Rate Loans and
any accrued but unpaid interest thereon. Any repayment of
26
Offshore Rate Loans hereunder other than on the last day of the Interest
Period applicable thereto shall be accompanied by any amount required to
be paid pursuant to Section 4.9 hereof.
(c) OPTIONAL REPAYMENTS. Each Borrower may at any time and from time
to time repay the Revolving Credit Loans or Swingline Loans made to it, in whole
or in part, upon at least two (2) Business Days irrevocable notice by the
Company to the Administrative Agent with respect to Offshore Rate Loans and
prior irrevocable notice on the same Business Day as the date of prepayment with
respect to Base Rate Loans, in the form attached hereto as EXHIBIT D (a "NOTICE
OF PREPAYMENT") specifying the date and amount of repayment; whether the
repayment is of Revolving Credit Loans or Swingline Loans and whether the
repayment is of Offshore Rate Loans, Base Rate Loans, or a combination thereof,
and, if of a combination, the amount allocable to each. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date set forth in such notice. Partial repayments shall be in an aggregate
amount of $500,000 or a whole multiple of $100,000 in excess thereof with
respect to Swingline Loans or Base Rate Loans and $1,000,000 or a whole multiple
of $1,000,000 in excess thereof with respect to Offshore Rate Loans.
(d) LIMITATION ON REPAYMENT OF OFFSHORE RATE LOANS. The Borrowers
may not repay any Offshore Rate Loan on any day other than on the last day of
the Interest Period applicable thereto unless such repayment is accompanied by
any amount required to be paid pursuant to Section 4.9 hereof.
(e) LIMITATION ON REPAYMENT OF COMPETITIVE BID LOANS. The Borrowers
may not repay any Competitive Bid Loan on any day other than on the last day of
the Interest Period applicable thereto except, and on such terms, as agreed to
by the Borrower to which the Competitive Bid Loan was made and the Lender which
made such Competitive Bid Loan.
SECTION 2.4 REVOLVING CREDIT NOTES.
Each Lender's Revolving Credit Loans and the obligation of each Borrower
to repay such Revolving Credit Loans made to it shall be evidenced by separate
Revolving Credit Notes executed by each Borrower payable to the order of such
Lender. Each Revolving Credit Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest rate
per annum specified in Section 4.1.
SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE.
(a) Subject to the terms and conditions set forth herein, from time
to time until the Termination Date, the Company, on behalf of each Borrower, may
request Competitive Bids under the Revolving Credit Facility, and may (but shall
not have any obligation to) accept Competitive Bids and borrow Competitive Bid
Loans, which shall be denominated in Dollars or Offshore Currencies; PROVIDED
that the sum of the aggregate principal Dollar Equivalent amount
27
of outstanding Revolving Credit Loans and Swingline Loans PLUS the aggregate
principal Dollar Equivalent amount of outstanding Competitive Bid Loans made
thereunder at any time shall not exceed the Aggregate Revolving Credit
Commitment LESS the sum of all outstanding L/C Obligations. To request
Competitive Bids, the Company, on behalf of a Borrower, shall notify the
Administrative Agent of such request by telephone, not later than 11:00 a.m.
(Atlanta time) four (4) Business Days before the date of the proposed borrowing.
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
Company. Each such telephonic and written Competitive Bid Request shall specify
the following information:
(i) the identity of the Borrower;
(ii) the aggregate amount of the requested borrowing, which
shall be a minimum of $5,000,000 (or the Dollar Equivalent thereof) and
an integral multiple of 1,000,000 units of the applicable currency in
excess thereof;
(iii) whether such borrowing is to be made in Dollars or an
Offshore Currency, and if an Offshore Currency, specifying such
currency;
(iv) the date of such borrowing, which shall be a Business
Day;
(v) the Interest Period to be applicable to such borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed.
The Company (on behalf of such Borrower) may request offers to make Competitive
Bid Loans having up to 2 different stated maturity dates in a single Competitive
Bid Request; provided that the request for each separate stated maturity date
shall be deemed to be a separate Competitive Bid Request for a separate
Competitive Bid Loans. 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 a Borrower in response to a Competitive Bid Request.
Such Competitive Bids by a Lender may be for an amount greater than (or less
than) such Lender's respective Commitments. 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, not later than 11:00 a.m. (Atlanta time)
on the date which is three (3) Business Days' prior to the proposed date of such
borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 (or the Dollar Equivalent
thereof) and an integral multiple of 1,000,000 units of the applicable
28
currency in excess thereof and which may equal the entire principal amount of
the borrowing requested by the Borrower) of the Competitive Bid Loan or Loans
that the applicable Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which such 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), (iii) the Interest Period applicable to each such Loan and the
last day thereof, and (iv) the identity of the quoting Lender. Unless otherwise
agreed by the Administrative Agent and the Borrower, no Competitive Bid Request
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Competitive Bid Request
(other than setting forth the maximum principal amounts of the Competitive Bid
Loan which the quoting Lender is willing to make for the applicable Interest
Period) and, in particular, no Competitive Bid Request may be conditioned upon
acceptance by the Borrower of all (or some specified minimum) of the principal
amount of the Competitive Bid Loan for which such Competitive Bid Request is
being made.
(c) The Administrative Agent shall promptly (but in any event by no
later than 3:00 p.m. (Atlanta time) on the date which is three (3) Business
Days' prior to the proposed borrowing date) notify the Company, on behalf of the
Borrower requesting Competitive Bids, 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 Company,
on behalf of the Borrower requesting Competitive Bids, may accept or reject any
Competitive Bid. The Company, on behalf of such 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, not later than 10:30 a.m. (Atlanta time) on the
date which is two (2) Business Days prior to the date of the proposed borrowing;
PROVIDED that (i) the failure of the Company to give such notice shall be deemed
to be a rejection of each Competitive Bid, (ii) such Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the aggregate amount of the requested borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, such 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 Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 (or the
Dollar Equivalent thereof) and an integral multiple of l,000,000 units of the
applicable currency in excess thereof; PROVIDED FURTHER that if a Competitive
Bid Loan must be in an amount less than $5,000,000 (or the Dollar Equivalent
thereof) because of the provisions of clause (iv) above, such Competitive Bid
Loan may be for a minimum of 1,000,000 units of the applicable currency 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) above the amounts shall be rounded to integral
multiples of 1,000,000 units of the applicable currency in a manner determined
by the Borrower. A notice given by a Borrower pursuant to this paragraph shall
be irrevocable.
29
(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 Bid Loan in respect of which its Competitive Bid has been
accepted.
(f) Not later than (i) in the case of a Competitive Bid Loan
denominated in Dollars, no later than 2:00 p.m. (Atlanta time) on the proposed
borrowing date and (ii) in the case of a Competitive Bid Loan that is an
Offshore Currency Loan, by such time as the Administrative Agent may determine
to be necessary for such funds to be credited on such funding date in accordance
with normal banking practices in the place of payment, each Lender whose
Competitive Bid has been accepted will make available to the Administrative
Agent, for the account of the Borrower to whom the Competitive Bid Loan is to be
made, at the office of the Administrative Agent in funds immediately available
to the Administrative Agent, the amount of the Competitive Bid Loan to be made
on such borrowing date by such Lender. Each Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.5 in immediately available funds by
crediting or wiring such proceeds to the deposit account of such Borrower
identified in its most recent Notice of Account Designation or as may be
otherwise agreed upon by such Borrower and the Administrative Agent from time to
time. Subject to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the proceeds of any Competitive Bid Loan requested
pursuant to this Section 2.5 for which any Lender is responsible to the extent
that such Lender has not made available to the Administrative Agent the amount
of such Competitive Bid Loan.
(g) 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 Company, on behalf of the Borrower requesting Competitive Bids, 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.
(h) While any Competitive Bid Loan is outstanding, the Revolving
Credit Commitment of each Lender shall be deemed used for all purposes by an
amount equal to its pro rata share (based on its respective Revolving Credit
Commitment Percentage) of the principal Dollar Equivalent amount of such
Competitive Bid Loan.
(i) (1) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Competitive Bid Loan made by
such Lender to such Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(2) The entries maintained in the accounts maintained
pursuant to paragraph (i) shall be prima facie evidence of the existence
and amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that
the failure of the Administrative Agent or any Lender
30
to maintain such accounts or any error therein shall not in any manner
affect the obligation of each Borrower to repay the Obligations in
accordance with their terms.
(3) The Competitive Bid Loans made by each Lender shall be
evidenced by such Lender's respective Revolving Credit Notes.
(j) Each Borrower shall repay the outstanding principal amount of
each Competitive Bid Loan made to it in full on the last day of the Interest
Period applicable thereto, with all accrued but unpaid interest thereon.
Competitive Bid Loans may not be repaid prior to the last day of the applicable
Interest Period except in accordance with Section 2.3(b) and (e).
(k) Each Borrower shall pay a fee to the Administrative Agent equal
to $1,200 for each Competitive Bid Loan requested by such Borrower.
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.
(a) SWINGLINE LOANS. Subject to the terms and conditions set forth
herein, from time to time until the Swingline Termination Date, the Swingline
Lender, at the request of the Company and at the sole discretion of the
Swingline Lender, may make, under the Revolving Credit Facility, a revolving
loan or revolving loans (each a "SWINGLINE LOAN" and, collectively, the
"SWINGLINE LOANS") to the Company, which Swingline Loans (i) shall be
denominated in Dollars, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the sum of the aggregate principal Dollar
Equivalent amount of outstanding Revolving Credit Loans PLUS the aggregate
principal amount of Competitive Bid Loans made thereunder at any time, the
Aggregate Revolving Credit Commitment LESS the sum of all outstanding L/C
Obligations, (iv) shall not exceed in aggregate principal amount at any time
outstanding the Swingline Maximum and (v) shall bear interest at the Swingline
Rate. Notwithstanding anything to the contrary contained in this Section 2.6(a),
(x) the Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it and the Company to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Lenders' participation
in such Swingline Loans, including by cash collateralizing such Defaulting
Lender's or Lenders' Revolving Commitment Percentage of the outstanding
Swingline Loans and (y) the Swingline Lender shall not make any Swingline Loan
after it has received written notice from any Borrower or the Required Lenders
stating that a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice (A) of
rescission of all such notices from the party or parties originally delivering
such notice or (B) of the waiver of such Default or Event of Default by the
Required Lenders.
(b) MANDATORY BORROWINGS.
(i) On any Business Day, the Swingline Lender may, in its
sole discretion, advise the Administrative Agent to give notice to the
Lenders that the Swingline Lender's outstanding Swingline Loans shall be
funded with one or more borrowings of Revolving
31
Credit Loans made to the Company and denominated in Dollars (PROVIDED
that such notice shall be deemed to have been automatically given with
respect to outstanding Swingline Loans upon the occurrence of a Default
or an Event of Default under Section 11.1(i) or (j)), in which case one
or more borrowings of Revolving Credit Loans constituting Base Rate
Loans (each such Borrowing, a "MANDATORY BORROWING") shall be made on
the immediately succeeding Business Day by all Lenders in accordance
with each Lender's Revolving Credit Commitment Percentage and the
proceeds thereof shall be applied directly by the Administrative Agent
to repay the Swingline Lender for such outstanding Swingline Loans. Each
Lender hereby irrevocably agrees to make Revolving Credit Loans to the
Company upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by the Administrative
Agent notwithstanding (A) the amount of the Mandatory Borrowing may not
comply with the minimum borrowing amount otherwise required hereunder,
(B) whether any conditions specified in Section 5.2 are then satisfied,
(C) whether a Default or an Event of Default then exists, (D) the date
of such Mandatory Borrowing and (E) whether the Revolving Credit Loans
comprising the Mandatory Borrowing would, when combined with the sum of
the aggregate principal amount of outstanding Revolving Credit Loans,
outstanding L/C Obligations and the aggregate principal amount of
Competitive Bid Loans, exceed the Aggregate Revolving Credit Commitment
at such time (so long as outstanding Swingline Loans do not exceed the
Swingline Maximum). In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including,
without limitation, as a result of the occurrence of a Bankruptcy Event
with respect to any Borrower), then each Lender hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the
respective Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in
such Swingline Loans ratably based upon their respective Revolving
Credit Commitment Percentages, PROVIDED that (x) all interest payable on
the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is required to
be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such
date and (y) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to
pay the Swingline Lender interest on the principal amount of
participations purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the overnight
Federal Funds Rate for the first three days and at the rate otherwise
applicable to Base Rate Loans hereunder for each day thereafter.
(ii) To the extent amounts received from the Lenders pursuant
to Section 2.6(b)(i) above are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid, the
Company agrees to pay to the Swingline Lender on demand the amount
required to repay such Swingline Loans in full. In addition, the Company
hereby authorizes the Administrative Agent to charge any account
maintained
32
by the Company with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of
such Swingline Loans to the extent amounts received from the Lenders are
not sufficient to repay in full the outstanding Swingline Loans
requested or required to be repaid. If any portion of any such amount
paid to the Swingline Lender shall be recovered by or on behalf of the
Company from the Swingline Lender in bankruptcy or otherwise, the loss
of the amount so recovered shall be ratably shared among all the Lenders
in accordance with their respective Revolving Credit Commitment
Percentages.
(c) AMOUNT OF EACH SWINGLINE BORROWING. Each Swingline Loan shall be
made in an aggregate principal amount of $500,000 or a whole multiple of
$l00,000 in excess thereof.
(d) NOTICE OF BORROWING.
(i) The Company shall give the Swingline Lender irrevocable
prior written notice (a "NOTICE OF SWINGLINE BORROWING") substantially
in the form attached as EXHIBIT B-2 no later than 11:30 a.m. (Atlanta
time) on the same Business Day as each Base Rate Loan of its intention
to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, and (B) the amount of such borrowing, which shall be in an
amount equal to the unused amount of the Swingline Maximum or less.
Notices received after 11:30 a.m. (Atlanta time) shall be deemed
received on the next Business Day.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 2.6(b), with the Company irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of the Mandatory
Borrowings as set forth in Section 2.6(b).
(e) DISBURSEMENT OF FUNDS. Not later than 2:00 p.m. (Atlanta time)
on the proposed borrowing date, the Swingline Lender will make available to the
Administrative Agent, for the account of the Company, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
the amount of the Swingline Loan to be made on such borrowing date. In the case
of Mandatory Borrowings, no later than 2:00 p.m. (Atlanta time) on the date
specified in Section 2.6(b), each Lender will make available to the
Administrative Agent, for the account of the Company, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Revolving Credit Commitment Percentage of Mandatory Borrowings to
be made on such borrowing date. The Company hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.6 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Company identified in the
most recent Notice of Account Designation or as may be otherwise agreed upon by
the Company and the Administrative Agent from time to time or, in the case of
Mandatory Borrowings, in the manner specified in Section 2.6(b)(i). Subject to
Section 4.7 hereof, the Administrative Agent shall not be obligated to disburse
the proceeds of any Swingline Loan requested pursuant to this Section 2.6 to the
extent that the Swingline Lender has not made available to the Administrative
Agent the amount of such Swingline Loan.
33
(f) NOTES. The Swingline Lender's Swingline Loans shall be evidenced
by such Lender's respective Revolving Credit Notes issued by the Company.
(g) USAGE UNDER REVOLVING CREDIT COMMITMENTS. While any Swingline
Loan is outstanding, the Revolving Credit Commitment of each Lender shall be
deemed used for all purposes by an amount equal to its pro rata share (based on
its respective Revolving Credit Commitment Percentage) of the principal amount
of such Swingline Loan.
(h) NOTICE TO THE ADMINISTRATIVE AGENT. The Swingline Lender shall
promptly give notice to the Administrative Agent of all Swingline Loans made
hereunder, and all repayments of such Swingline Loans.
SECTION 2.7 COMMITMENT REDUCTIONS AND INCREASES.
(a) VOLUNTARY REDUCTION. The Borrowers shall have the right at any
time and from time to time, upon at least four (4) Business Days' prior written
notice by the Company to the Administrative Agent, to permanently reduce,
without premium or penalty (except as provided below), either (i) the Aggregate
Revolving Credit Commitment at any time or (ii) portions of the Aggregate
Revolving Credit Commitment from time to time, in an aggregate principal Dollar
Equivalent amount not less than $5,000,000 or any whole multiple of $1,000,000
in excess thereof.
(b) PAYMENTS RELATED TO A COMMITMENT REDUCTION.
Each permanent reduction of the Aggregate Revolving Credit Commitment
made pursuant to this Section 2.7 or otherwise shall be accompanied, if
necessary, by a payment of principal sufficient to reduce the aggregate
outstanding Revolving Credit Loans and Swingline Loans and L/C Obligations, as
applicable, to the amount of the new Revolving Credit Commitment after such
reduction to the Aggregate Revolving Credit Commitment and, if the Aggregate
Revolving Credit Commitment as so reduced is less than the aggregate amount of
all outstanding Letters of Credit, the Borrowers shall be required to deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the amount by which the aggregate then undrawn and unexpired amount of such
Letters of Credit exceeds the Aggregate Revolving Credit Commitment as so
reduced. Such cash collateral shall be applied in accordance with Section
11.2(b). Any permanent reduction of the Aggregate Revolving Credit Commitment to
zero (including upon termination of the Revolving Credit Facility on the
Termination Date) shall be accompanied by payment of all outstanding Revolving
Credit Loans and Swingline Loans (and furnishing of cash collateral satisfactory
to the Administrative Agent for all L/C Obligations) and shall result in the
termination of the Aggregate Revolving Credit Commitment. If the reduction of
the Aggregate Revolving Credit Commitment requires the repayment of any Offshore
Rate Loan, such repayment shall be accompanied by any amount required to be paid
pursuant to Section 4.9 hereof. Notwithstanding anything herein to the contrary,
the Aggregate Revolving Credit Commitment may not be permanently reduced by such
an amount so that after such reduction, the Aggregate Revolving Credit
Commitment is less than
34
the aggregate amount of all unpaid principal of and interest on outstanding
Competitive Bid Loans.
SECTION 2.8 TERMINATION.
(a) TERMINATION OF REVOLVING CREDIT FACILITY. The Revolving Credit
Facility shall terminate on the earliest of (a) the Maturity Date, (b) the date
of termination of the Revolving Credit Commitment by the Company pursuant to
Section 2.7(a), and (c) the date of termination by the Administrative Agent on
behalf of the Lenders pursuant to Section 11.2(a).
SECTION 2.9 UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE
CURRENCIES.
(a) The Administrative Agent will determine the Dollar Equivalent
amount with respect to any (i) Revolving Credit Loan or Competitive Bid Loan
that is an Offshore Currency Loan as of the requested borrowing date and as of
any requested continuation date, (ii) outstanding Offshore Currency Loan, as of
each Interest Payment Date relating to such Loan and (iii) Letters of Credit
denominated in an Offshore Currency, as of the requested issuance date and the
first Business Day of each calendar month, and, during the occurrence and
continuation of an Event of Default, such other dates as may be requested by the
Required Lenders (but in no event more frequently than once a week) (each such
date under clause (i), (ii) and (iii), a "DETERMINATION DATE").
(b) The Lenders shall be under no obligation to make Revolving
Credit Loans in a requested Offshore Currency if the Administrative Agent has
received notice from the Required Lenders by 12:30 p.m. (Atlanta time) two
Business Days prior to the date of a requested borrowing of an Offshore Currency
Loan that deposits in the relevant Offshore Currency (in the applicable amounts)
are not being offered to such Lenders in the interbank eurocurrency market for
such Interest Period in which event the Administrative Agent will give notice to
the Company, on behalf of such Borrower requesting such Offshore Currency Loan,
no later than 1:30 p.m. (Atlanta time) on the second Business Day prior to the
requested date of such borrowing that the borrowing in the requested Offshore
Currency is not then available, and notice thereof will also be given promptly
by the Administrative Agent to the Lenders. If the Administrative Agent shall
have notified the Company that any requested Offshore Currency Loan is not then
available, the Notice of Revolving Credit Borrowing relating to such requested
Offshore Currency Loan shall be deemed to be withdrawn, the borrowing requested
therein shall not occur and the Administrative Agent will promptly so notify
each Lender.
(c) In the case of a proposed continuation of an Offshore Currency
Loan for an additional Interest Period pursuant to Section 4.2, the Lenders
shall be under no obligation to continue such Offshore Currency Loan if the
Administrative Agent has received notice from the Required Lenders by 12:30 p.m.
(Atlanta time) two Business Days prior to the requested date of such
continuation that deposits in the relevant Offshore Currency (in the applicable
amounts) are not being offered to such Lenders in the interbank eurocurrency
market for such Interest Period in which event the Administrative Agent will
give notice to the Company, on behalf of the
35
Borrower requesting such continuation, no later than 1:30 p.m. (Atlanta time) on
the second Business Day prior to the requested date of such continuation that
the continuation of such Offshore Currency Loan is not then available, and
notice thereof will also be given promptly by the Administrative Agent to the
Lenders. If the Administrative Agent shall have notified the Company, on behalf
of the Borrower requesting continuation of an Offshore Currency Loan, that the
requested continuation is not then available, the Notice of Continuation with
respect thereto shall be deemed to be withdrawn and such Offshore Currency Loan
shall be repaid on the last day of the Interest Period with respect thereto.
(d) Notwithstanding anything herein to the contrary, during the
existence of a payment Default or an Event of Default, and at the request of the
Required Lenders (or, in the case of a Competitive Bid Loan made in an Offshore
Currency, the Lender that has made such Loan), all or any part of outstanding
Offshore Currency Loans shall be redenominated and converted into their Dollar
Equivalent of Base Rate Loans in Dollars on the last day of the Interest Period
applicable to any such Offshore Currency Loans. The Administrative Agent will
promptly notify the Company and the Lenders of any such redenomination and
conversion request.
(e) The Company shall be entitled to request that Revolving Credit
Loans hereunder also be permitted to be made to a Borrower in any other lawful
currency (other than Dollars), in addition to the currencies specified in the
definition of "Offshore Currency" in Section 1.1, that in the opinion of the
Administrative Agent and all of the Lenders is at such time freely traded in the
offshore interbank foreign exchange markets, freely transferable and freely
convertible into Dollars and readily utilized for the settlement of private
international debt transactions (an "AGREED ALTERNATIVE CURRENCY"). The Company
shall deliver in writing to the Administrative Agent any request for designation
of an Agreed Alternative Currency in accordance with Section 13.1, to be
received by the Administrative Agent not later than 11:00 a.m. (Atlanta time) at
least 10 Business Days in advance of the date of any borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the Lenders thereof,
and each Lender will use its commercially reasonable efforts to respond to such
request within five (5) Business Days of receipt thereof. Each Lender may grant
or accept such request in its sole discretion. The Administrative Agent will
promptly notify the Company of the acceptance or rejection of any such request.
SECTION 2.10 DESIGNATED BORROWERS.
(a) ADDITION OF DESIGNATED BORROWER. Equifax Plc constitutes a
Designated Borrower as of the Closing Date. The Company may request designation
of any of its other Wholly-Owned Subsidiaries (an "APPLICANT BORROWER") as a
Designated Borrower hereunder by delivery of such a request to the
Administrative Agent together with an executed copy of a Borrower Joinder
Agreement in substantially the form attached hereto as EXHIBIT E. The
Administrative Agent will promptly notify the Lenders of any such request
together with a copy of the Borrower Joinder Agreement executed by the Applicant
Borrower. The joinder of each Applicant Borrower as a designated Borrower will
be subject to delivery of executed promissory notes, if any, required in
connection therewith, and supporting resolutions, articles of
36
incorporation, incumbency certificates, opinions of counsel and such other items
as the Administrative Agent and/or the Required Lenders may reasonably request
and which are reasonably satisfactory to the Administrative Agent. Any such
addition of a Designated Borrower shall be effective five Business Days after
receipt by the Administrative Agent of the items required by the Administrative
Agent and/or the Required Lenders in connection therewith. Such Designated
Borrower shall thereupon become a party hereto and a Designated Borrower
hereunder and shall be (i) entitled to all rights and benefits of a Borrower
hereunder and under each instrument executed pursuant hereto and (ii) subject to
all obligations of a Borrower hereunder and thereunder.
(b) REMOVAL OF A DESIGNATED BORROWER. The Company may request that
any of its Wholly-Owned Subsidiaries that is a Designated Borrower hereunder
cease to be a Designated Borrower by delivering to the Administrative Agent
(which shall promptly deliver copies thereof to each Lender) a written notice to
such effect. Such Designated Borrower shall cease to be a Borrower hereunder and
be released of all of its obligations and liabilities as a Borrower hereunder
and under the other Loan Documents on the later to occur of (i) the date the
Administrative Agent receives such request and (ii) the date such Borrower has
paid all of its Loans and all accrued and unpaid interest, fees and other
Obligations owing by it hereunder or in connection herewith.
SECTION 2.11 LIMITATION ON LIABILITY.
Notwithstanding anything in this Article II or in any other provision of
this Agreement or any other Loan Document to the contrary, the obligations of
the Borrowers (other than the Company) to repay the Lenders for any Loans made
available to the Borrowers hereunder are several and not joint and several
obligations of the Borrowers. Accordingly, no Borrower (other than the Company)
shall be obligated to repay the principal amount of or to pay accrued interest
on any Loans made by the Lenders to any other Borrower. Nothing in this section,
however, is intended to limit or modify the Company's guarantee under Article X
hereof.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT.
Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue standby and/or commercial Letters of Credit for the account of
the requesting Borrower on any Business Day from the Closing Date through but
not including the Termination Date in such form as may be approved from time to
time by such Issuing Lender; PROVIDED that no Issuing Lender shall issue any
Letter of Credit if, after giving effect to such issuance, (a) the L/C
Obligations would exceed the L/C Commitment or (b) the sum of (i) the aggregate
principal Dollar Equivalent amount of outstanding Revolving Credit Loans, (ii)
the aggregate principal amount of outstanding
37
Swingline Loans, (iii) the aggregate principal amount of L/C Obligations and
(iv) the aggregate principal amount of Competitive Bid Loans, would exceed the
Aggregate Revolving Credit Commitment. Each Letter of Credit shall (A) be
denominated in Dollars or an Offshore Currency, (B) be a letter of credit issued
to support obligations of a Borrower or any of its Subsidiaries, contingent or
otherwise, permitted to be incurred hereunder, (C) not have an original expiry
date more than one year from the date of issuance thereof (provided that subject
in any event to clause (D) hereof) any such Letter of Credit (x) may contain
customary "evergreen" provisions pursuant to which the expiry date is
automatically extended by a specific time period unless the Issuing Lender gives
notice to the beneficiary of such Letter of Credit at least a specified time
period prior to the expiry date then in effect and/or (y) may have an expiration
date more than one year from the date of issuance if required under related
industrial revenue bond documents and agreed to by the Issuing Lender) and (D)
as originally issued or as extended, not have an expiry date extending beyond
the date five (5) days prior to the Termination Date. Unless otherwise expressly
agreed by the Issuing Lender and the applicable Borrower when a Letter of Credit
is issued, (i) the rules of the "International Standby Practices 1998" published
by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) (the "ISP") shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (including
the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to
each commercial Letter of Credit. No Issuing Lender shall at any time be
obligated to issue any Letter of Credit hereunder if (a) any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain such Issuing Lender from issuing such Letter of Credit, (b)
any Applicable Law applicable to such Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority having
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular, (c) any Applicable Law applicable to such
Issuing Lender shall impose upon such Issuing Lender with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which such
Issuing Lender would not otherwise be compensated hereunder) which was not in
effect on the Closing Date and which such Issuing Lender in good xxxxx xxxxx
material to it, (d) any Applicable Law applicable to such Issuing Lender shall
impose upon such Issuing Lender with respect to such Letter of Credit any loss,
cost or expense (for which such Issuing Lender would not otherwise be reimbursed
hereunder) which was not applicable on the Closing Date and which such Issuing
Lender in good xxxxx xxxxx material to it, or (e) the issuance of such Letter of
Credit would violate one or more policies of the Issuing Lender. References
herein to "issue" and derivations thereof with respect to Letters of Credit
shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(a) The Company, on behalf of any Borrower, may from time to time
request that any Issuing Lender issue a Letter of Credit (or amend, extend or
renew an outstanding Letter of Credit) by delivering to such Issuing Lender
(with a copy to the Administrative Agent) at the
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office of the Issuing Lender set forth on Schedule 13.1 or such other office
mutually acceptable to such Borrower and such Issuing Lender an L/C Application
therefor, completed to the satisfaction of such Issuing Lender and signed by a
Responsible Officer. The L/C Application must be received by the relevant
Issuing Lender (and the Administrative Agent) by no later than 11:00 a.m.
Atlanta time at least two (2) Business Days (or such later date and time as the
relevant Issuing Lender may agree in a particular instance in its sole
discretion) prior to the requested issuance date (or requested amendment,
extension or renewal date). In the case of a request for an initial issuance of
a Letter of Credit, the L/C Application shall specify in form and detail
satisfactory to the relevant Issuing Lender: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; (G) the
Applicable Currency; (H) the name of the Borrower account party and (I) such
other matters as the relevant Issuing Lender may require. In the case of a
request for an amendment of any outstanding Letter of Credit, the L/C
Application shall specify in form and detail satisfactory to the relevant
Issuing Lender: (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the relevant Issuing Lender
may require.
(b) Promptly after receipt of any L/C Application, the relevant
Issuing Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such L/C
Application from the applicable Borrower and, if not, the relevant Issuing
Lender will provide the Administrative Agent with a copy thereof. Upon receipt
by the relevant Issuing Lender of confirmation from the Administrative Agent
that the requested issuance or amendment is permitted in accordance with the
terms hereof, then, subject to the terms and conditions hereof, the relevant
Issuing Lender shall, on the requested date, issue a Letter of Credit for the
account of such Borrower or enter into the applicable amendment, as the case may
be, in each case in accordance with the relevant Issuing Lender's usual and
customary business practices.
(c) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the relevant Issuing Lender will also deliver to the
applicable Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(d) On the last Business Day of each calendar quarter, each Issuing
Lender (or the Administrative Agent if the Administrative Agent agrees to
undertake such action) shall report to each Lender all Letters of Credit issued
by it during the previous calendar quarter and the average daily undrawn and
unexpired amounts for all Letters of Credit for each day in such calendar
quarter.
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SECTION 3.3 FEES AND OTHER CHARGES.
(a) Each Borrower agrees to pay to the Administrative Agent, for the
account of each Issuing Lender and the L/C Participants, a letter of credit fee
(the "L/C FEE") with respect to each Letter of Credit requested by the Company
on behalf of such Borrower and issued by such Issuing Lender in an amount equal
to the Applicable Percentage for L/C Fee TIMES the average daily undrawn amount
of such issued Letters of Credit as reported by such Issuing Lender (or the
Administrative Agent) pursuant to Section 3.2. Such fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter,
commencing on the first of such dates to occur after the Closing, and on the
Termination Date. Subject to Section 11.3, (x) in the case of any Event of
Default under Xxxxxxx 00.0 (x), (x), (x)(x), (x), (x), (x), (x), (x), (x) and
(o), unless otherwise agreed by the Required Lenders, upon the occurrence and
during the continuance of such Event of Default, the L/C Fee shall accrue at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
for the L/C Fee, and (y) in the case of any other Event of Default, at the
option of the Required Lenders exercised by written notice to the Company, upon
the occurrence and during the continuance of such Event of Default, the L/C Fee
shall accrue at a rate per annum equal to two percent (2%) in excess of the rate
then applicable for the L/C Fee.
(b) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Issuing Lender and the L/C Participants the L/C Fees
received by such Issuing Lender in accordance with their respective Revolving
Credit Commitment Percentages.
(c) In addition to the L/C Fees, each Borrower agrees to pay to the
relevant Issuing Lender that has issued a Letter of Credit at the request of the
Company, on behalf of such Borrower, for such Issuing Lender's own account
without sharing by the other Lenders, (i) a fronting fee of 0.125% per annum on
the aggregate stated amount of such Letter of Credit, due and payable quarterly
in arrears on the last Business Day of each calendar quarter, commencing on the
first of such dates to occur after the Closing Date, and on the Termination
Date, and (ii) the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the relevant Issuing Lender
relating to such Letter of Credit as from time to time in effect, due and
payable on demand therefor by the relevant Issuing Lender.
SECTION 3.4 L/C PARTICIPATIONS.
(a) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce such Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk, an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in such Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by such
Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with each Issuing Lender that, if a draft is paid under any Letter of
Credit for which such Issuing Lender is not reimbursed in full by the Borrowers
in accordance with the terms of this Agreement, such L/C Participant shall pay
to such Issuing Lender upon demand at such Issuing Lender's address for notices
specified herein
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an amount equal to such L/C Participant's Revolving Credit Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to any Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit, the Administrative Agent shall notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall pay
to such Issuing Lender the amount specified on the applicable due date. If any
such amount is paid to such Issuing Lender after the date such payment is due,
such L/C Participant shall pay to such Issuing Lender on demand, in addition to
such amount, the product of (i) such amount, TIMES (ii) the daily average
Federal Funds Rate as determined by the Administrative Agent during the period
from and including the date such payment is due to the date on which such
payment is immediately available to such Issuing Lender, TIMES (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. With respect to payment to any Issuing Lender
of the unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to 1:00 p.m.
(Atlanta time) on any Business Day, such payment shall be due that Business Day,
and (B) after 1:00 p.m. (Atlanta time) on any Business Day, such payment shall
be due on the following Business Day.
(c) Whenever, at any time after any Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section 3.4, such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from a Borrower or otherwise, or any payment of
interest on account thereof), such Issuing Lender will distribute to such L/C
Participant its PRO RATA share thereof in accordance with such L/C Participant's
Revolving Credit Commitment Percentage; PROVIDED, that in the event that any
such payment received by such Issuing Lender shall be required to be returned by
such Issuing Lender, such L/C Participant shall return to such Issuing Lender
the portion thereof previously distributed by such Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWERS; LIMITATION ON
LIABILITY.
(a) REIMBURSEMENT OBLIGATION OF THE BORROWERS. Each Borrower agrees
to reimburse each Issuing Lender on each date such Issuing Lender notifies the
Company, on behalf of such Borrower, of the date and amount of a draft paid
under any Letter of Credit requested by the Company, on behalf of such Borrower,
for the amount of (i) such draft so paid and (ii) any taxes, fees, charges or
other costs or expenses incurred by any Issuing Lender in connection with such
payment. Each such payment shall be made to any Issuing Lender at its address
for notices specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by any Borrower under this Article III from the date such
amounts become payable (which date shall be the date such draft is paid, whether
at stated maturity, by acceleration or otherwise) until payment in full at the
rate which would be payable on any outstanding Base Rate Loans which were then
overdue. If any Borrower fails to timely reimburse such Issuing Lender on the
date the Company, on behalf of
41
such Borrower, receives the notice referred to in this Section 3.5, such
Borrower shall be deemed to have timely given a Notice of Revolving Credit
Borrowing pursuant to Section 2.2 hereunder to the Administrative Agent
requesting the Lenders to make a Base Rate Loan on such date in an amount equal
to the amount of such draft paid, together with any taxes, fees, charges or
other costs or expenses incurred by any Issuing Lender and to be reimbursed
pursuant to this Section 3.5 and, regardless of whether or not the conditions
precedent specified in Article VI have been satisfied, the Lenders shall make
Base Rate Loans in such amount, the proceeds of which shall be applied to
reimburse such Issuing Lender for the amount of the related drawing and costs
and expenses. Notwithstanding the foregoing, nothing in this Section 3.5 shall
obligate the Lenders to make such Base Rate Loans if the making of such Base
Rate Loans would violate the automatic stay under federal bankruptcy laws.
(b) LIMITATION ON LIABILITY OF BORROWERS FOR REIMBURSEMENT
OBLIGATIONS. Notwithstanding anything in this Section 3.5 or in any other
provision of this Agreement or any other Loan Document to the contrary, the
obligations of the Borrowers (other than the Company) to reimburse the Lenders
for any drawings under any Letters of Credit or for any taxes, fees, charges or
other costs or expenses incurred by any Issuing Lender in connection with the
payment of any drafts by the Issuing Lender with respect to any Letters of
Credit are several and not joint and several obligations of the Borrowers.
Accordingly, no Borrower (other than the Company) shall be obligated to
reimburse the Lenders for any drawings under Letters of Credit that were not
requested by such Borrower (or by the Company on behalf of such Borrower), or
for any taxes, fees, charges or other costs or expenses incurred by any Issuing
Lender in connection with the payment of any drafts relating to Letters of
Credit that were not requested by such Borrower or by the Company on behalf of
such Borrower. The Company shall be jointly and severally liable to reimburse
the Lenders for any drawings under any Letters of Credit and for any taxes,
fees, charges or other costs or expenses incurred by any Issuing Lender in
connection with the payment of any drafts by the Issuing Lender with respect to
any Letters of Credit.
SECTION 3.6 OBLIGATIONS ABSOLUTE.
Each Borrower's obligations under this Article III (including without
limitation the Reimbursement Obligation) shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that any Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the
applicable Issuing Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
42
(iv) any payment by the applicable Issuing Lender under such Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of,
any Borrower.
No Issuing Lender shall be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Issuing Lender's gross negligence or willful misconduct
as determined by a final non-appealable decision of a court of competent
jurisdiction. Each Borrower agrees that any action taken or omitted by any
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the ICC or
ISP, as applicable, and, to the extent not inconsistent therewith, the UCC,
shall be binding on such Borrower and shall not result in any liability of any
Issuing Lender to such Borrower. The responsibility of each Issuing Lender to
such Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit. Each Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with the applicable Borrower's instructions or other irregularity, such Borrower
will promptly notify the applicable Issuing Lender. Each Borrower shall be
conclusively deemed to have waived any such claim against the applicable Issuing
Lender and its correspondents unless such notice is given as aforesaid.
SECTION 3.7 EFFECT OF L/C APPLICATION.
To the extent that any provision of any L/C Application related to any
Letter of Credit is inconsistent with the provisions of this Article III, the
provisions of this Article III shall apply.
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ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this Section
4.1, at the election of a Borrower, the aggregate principal balance of any
Revolving Credit Loans shall bear interest at (i) the Base Rate or (ii) the
Offshore Rate PLUS the Applicable Percentage for Offshore Rate Loans; PROVIDED
that (A) such interest rate shall be increased by any amount required pursuant
to Section 4.1(f) and (B) Offshore Rate Loans shall not be available until three
(3) Business Days after the Closing Date. Such Borrower shall select the rate of
interest, Interest Period, if any, and Applicable Currency, in the case of an
Offshore Currency Loan, applicable to any Revolving Credit Loan at the time a
Notice of Revolving Credit Borrowing is given pursuant to Section 2.2, or at the
time a Notice of Conversion/Continuation is given pursuant to Section 4.2. Each
Revolving Credit Loan, Swingline Loan, or portion thereof bearing interest based
on the Base Rate shall be a "Base Rate Loan," and each Revolving Credit Loan or
portion thereof bearing interest based on the Offshore Rate shall be an
"Offshore Rate Loan." Any Revolving Credit Loan or any portion thereof as to
which the Company, on behalf of a Borrower, requesting such Revolving Credit
Loan has not duly specified an interest rate as provided herein shall be deemed
a Base Rate Loan. A Competitive Bid Loan will bear interest at the Competitive
Bid Rate specified in the Competitive Bid accepted by the Borrower with respect
to such Competitive Bid Loan. Swingline Loans shall bear interest at the
Swingline Rate.
(b) INTEREST PERIODS. In connection with each Offshore Rate Loan and
each Competitive Bid Loan, the Company, on behalf of a Borrower, by giving
notice at the times described in Section 4.1(a), shall elect an interest period
(each, an "INTEREST PERIOD") to be applicable to such Revolving Credit Loan or
such Competitive Bid Loan, which Interest Period shall, unless otherwise agreed
by the Administrative Agent and the Lenders, be a period of one (1), two (2),
three (3), or, if available to all Lenders for the requested Available Currency,
six (6) months with respect to each Offshore Rate Loan, a period of seven (7)
days to 180 days with respect to each Dollar Competitive Bid Loan and a period
of seven (7) to sixty (60) days with respect to Offshore Currency Competitive
Bid Loans; PROVIDED that:
(i) the Interest Period shall commence on the date of
advance of or conversion to any Offshore Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest Period
shall commence on the date on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED, that if any Interest Period with
respect to an Offshore Rate Loan would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
44
(iii) any Interest Period with respect to an Offshore Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business
Day of the relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Termination
Date of the facility under which the Loan with respect to which such
Interest Period relates was made; and
(v) there shall be no more than twelve (12) Offshore Rate
Loans (exclusive of Competitive Bid Loans) outstanding hereunder at any
time (it being understood that, for purposes hereof, Offshore Rate Loans
with different Interest Periods shall be considered as separate Offshore
Rate Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined by a Borrower at the end of existing Interest
Periods to constitute a new Offshore Rate Loan with a single Interest
Period).
(c) DEFAULT RATE, ETC. Subject to Section 11.3, (x) in the case of
any Event of Default under Xxxxxxx 00.0 (x), (x), (x)(x), (x), (x), (x), (x),
(x), (x) and (o), unless otherwise agreed by the Required Lenders, upon the
occurrence and during the continuance of such Event of Default, (i) the Company,
on behalf of the Borrowers, shall no longer have the option to request Offshore
Rate Loans, (ii) all outstanding Offshore Rate Loans shall bear interest at a
rate per annum equal to two percent (2%) in excess of the rate then applicable
to such Offshore Rate Loans until the end of the applicable Interest Period and
thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, (iii) all outstanding Base Rate Loans shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans and (iv) each outstanding Competitive Bid
Loan shall bear interest at a rate per annum equal to two percent (2%) in excess
of the rate then applicable to such Competitive Bid Loan and (y) in the case of
any other Event of Default, at the option of the Required Lenders exercised by
written notice to the Company, upon the occurrence and during the continuance of
such Event of Default, (i) the Company, on behalf of the Borrowers, shall no
longer have the option to request Offshore Rate Loans, (ii) all outstanding
Offshore Rate Loans shall bear interest at a rate per annum equal to two percent
(2%) in excess of the rate then applicable to such Offshore Rate Loans until the
end of the applicable Interest Period and thereafter at a rate equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans and (iv)
each outstanding Competitive Bid Loan shall bear interest at a rate per annum
equal to two percent (2%) in excess of the rate then applicable to such
Competitive Bid Loan. To the greatest extent permitted by law, interest shall
continue to accrue on the amount of Loans outstanding after the filing by or
against a Borrower of any petition seeking any relief in bankruptcy or under any
act or law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(d) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing on the first of such dates to occur after the Closing Date,
and interest on each Offshore Rate Loan and each Competitive Bid Loan shall be
payable on the last day of each Interest Period applicable thereto,
45
and if such Interest Period exceeds three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on all Loans and all
fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed; PROVIDED that interest on Loans
bearing interest at a rate based upon the Base Rate shall be computed on the
basis of a 365- or 366-day year, as applicable. Interest on each Swingline Loan
shall be payable in arrears on the last Business Day of each calendar quarter,
commencing on the first of such dates to occur after the Closing Date.
(e) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrowers any interest received by
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrowers not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrowers
under Applicable Law.
(f) MANDATORY COSTS. In the case of a Revolving Credit Loan that is
an Offshore Currency Loan, the otherwise applicable interest rate determined
pursuant to Section 4.1(a) shall be increased by the MLA Cost, if any, of the
applicable Lender associated with such Loan, computed in the manner set forth in
SCHEDULE 4.1(F) attached hereto.
(g) DETERMINATION OF RATES. The Administrative Agent shall determine
each interest rate applicable to the Loans hereunder as follows: (i) on the same
Business Day of the date of borrowing for each Base Rate Loan and (ii) two (2)
Business Days before the date of borrowing of (A) each Offshore Rate Loan
denominated in Dollars and (B) each Offshore Currency Loan. The Administrative
Agent shall promptly notify the Borrower and the Lenders of such rate in writing
(or by telephone, promptly confirmed in writing). Any such determination shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT LOANS.
Provided that no Default or Event of Default has occurred and is then
continuing, and subject to the terms of this Agreement, any Borrower shall have
the option (a) to convert all or any portion of its outstanding Base Rate Loans
in a principal amount equal to $1,000,000 or any whole multiple of $500,000 in
excess thereof into one or more Offshore Rate Loans denominated in Dollars or an
Offshore Currency and (b)(i) to convert all or any part of its outstanding
Offshore Rate Loans in a principal amount equal to $500,000 or a whole multiple
of $100,000 in excess thereof into Base Rate Loans denominated in Dollars or
(ii) to continue Offshore Rate Loans, whether denominated in Dollars or Offshore
Currency Loans, as Offshore Rate Loans in the same currency for an additional
Interest Period; PROVIDED that if any conversion or
46
continuation is made on a day other than the last day of any Interest Period,
such Borrower shall pay any amount required to be paid pursuant to Section 4.9
hereof. Whenever a Borrower desires to convert or continue Revolving Credit
Loans or Swingline Loans as provided above, the Company, on behalf of such
Borrower, shall give the Administrative Agent irrevocable prior written notice
in the form attached as EXHIBIT F (a "NOTICE OF CONVERSION/CONTINUATION") not
later than 11:00 a.m. (Atlanta time) three (3) Business Days before the day on
which a proposed conversion or continuation of such Revolving Credit Loan or
Swingline Loan is to be effective (except in the case of a conversion of an
Offshore Rate Loan denominated in Dollars to a Base Rate Loan, in which case
same day notice not later than 11:00 a.m. (Atlanta time) by the Borrower shall
be sufficient) specifying (A) the Revolving Credit Loans or Swingline Loans to
be converted or continued, the facility under which such Loans were made and, in
the case of any Offshore Rate Loan to be converted or continued, the last day of
the Interest Period therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal Dollar
Equivalent amount of such Revolving Credit Loans to be converted or continued,
(D) the Interest Period to be applicable to such converted or continued Offshore
Rate Loan and (E) in the case of any continued Offshore Rate Loan which is an
Offshore Currency Loan, the Applicable Currency. The Administrative Agent shall
promptly notify the Lenders of such Notice of Conversion/Continuation.
SECTION 4.3 FEES.
(a) FACILITY FEE. The Company agrees to pay to the Administrative
Agent, for the account of the Lenders, a non-refundable facility fee (the
"FACILITY FEE") at a rate per annum equal to the Applicable Percentage for
Facility Fee for the Revolving Credit Facility on the average daily amount of
the Aggregate Revolving Credit Commitment during the applicable period,
regardless of usage. The Facility Fee shall apply to the period commencing on
the Closing Date and ending on the termination of the Aggregate Revolving Credit
Commitment and shall be payable in arrears on the last Business Day of each
calendar quarter for the immediately preceding calendar quarter (or portion
thereof), beginning with the first such date to occur after the Closing Date.
Such Facility Fee shall be distributed by the Administrative Agent to the
Lenders PRO RATA in accordance with the Lenders' respective Revolving Credit
Commitment Percentage.
(b) ADMINISTRATIVE FEES. The Company agrees to pay to the
Administrative Agent, for its own account, the fees referred to in the
Administrative Agent's Fee Letter.
SECTION 4.4 MANNER OF PAYMENT.
Each payment by a Borrower on account of the principal of or interest on
the Loans or of any fee (including any L/C Fees relating to an Letter of Credit
denominated in an Offshore Currency), commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement or any
Note shall be made on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than
47
as set forth in the next sentence below), in Dollars (other than as set forth
below), in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever. Payment of principal of, interest on or
any other amount relating to any Offshore Currency Loan shall be made in the
Offshore Currency in which such Loan is denominated or payable. Such payments,
if denominated in Dollars, shall be made no later than 2:00 p.m. (Atlanta time)
on the relevant date and, if denominated in an Offshore Currency, by such time
as the Administrative Agent may determine to be necessary for such funds to be
credited on such date in accordance with normal banking practices in the place
of payment. Any payment denominated in Dollars received after 1:00 p.m. (Atlanta
time) but before 2:00 p.m. (Atlanta time) on a due date shall be deemed a
payment on such date for the purposes of Section 11.1, but for all other
purposes shall be deemed to have been made on the next succeeding Business Day.
Any payment denominated in Dollars received after 2:00 p.m. (Atlanta time), or
any payment denominated in an Offshore Currency received after the relevant time
determined by the Administrative Agent, shall be deemed to have been made on the
next succeeding Business Day for all purposes. Each payment to the
Administrative Agent of the L/C Fees shall be made in like manner, but for the
account of the Issuing Lenders and the L/C Participants. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender
under Section 2.5, 2.6, 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the
Administrative Agent for the account of the applicable Lender. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Lender to such Lender promptly following receipt thereof
and shall wire advice of the amount of such credit to such Lender. Subject to
Section 4.l(b)(ii), if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day and such extension of time shall
in such case be included in computing any interest if payable along with such
payment.
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS.
In the event that any Borrower shall fail to pay any of the Obligations
when due and the Obligations have been accelerated pursuant to Section 11.2, all
payments received by the Lenders upon the Notes and the other Obligations and
all net proceeds from the enforcement of the Obligations of such Borrower shall
be applied first to all expenses then due and payable by such Borrower
hereunder, then to all indemnity obligations then due and payable by such
Borrower hereunder, then to all Administrative Agent's fees then due and payable
allocable to such Borrower, then to all commitment and other fees and
commissions then due and payable allocable to such Borrower, then to accrued and
unpaid interest on the Notes issued by such Borrower and L/C Fees owing from
such Borrower, then to the principal amount of the Notes and Reimbursement
Obligations of such Borrower and then to the cash collateral account described
in Section 11.2(b) hereof to the extent of any L/C Obligations of such Borrower
then outstanding, in that order (in each case, if applicable, pro rata in
accordance with all such amounts due).
48
SECTION 4.6 ADJUSTMENTS.
If any Lender (a "BENEFITED LENDER") shall at any time receive any
payment of all or part of the Obligations owing to it, or interest thereon, or
if any Lender shall at any time receive any collateral in respect to the
Obligations owing to it (whether voluntarily or involuntarily, by set- off or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. Each Borrower
agrees that each Lender so purchasing a portion of another Lender's Extensions
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT.
(a) The obligations of the Lenders under this Agreement to make the
Loans and issue or participate in Letters of Credit are several and are not
joint or joint and several.
(b) Unless any Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that such Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if any Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the applicable Borrower to the date such amount
is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at
a rate per
49
annum equal to the Federal Funds Rate from time to time in effect. If
such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan, as the case may be, included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the applicable
Borrower, and such Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Revolving Credit Commitment or
to prejudice any rights which the Administrative Agent or any Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
A notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.
SECTION 4.8 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING OFFSHORE RATE AVAILABILITY. If with
respect to any Interest Period: (i) the Administrative Agent or any Lender
(after consultation with the Administrative Agent) shall determine that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan or (ii) the Required Lenders reasonably determine (which determination
shall be conclusive) and notify the Administrative Agent that the LIBOR Rate
will not adequately and fairly reflect the cost to the Required Lenders of
funding Offshore Rate Loans for such Interest Period, then the Administrative
Agent shall forthwith give notice thereof to the Company. Thereafter, until the
Administrative Agent notifies the Borrowers that such circumstances no longer
exist, the obligation of the Lenders to make Offshore Rate Loans and the right
of the Borrowers to convert any Revolving Credit Loan to or continue any
Revolving Credit Loan as an Offshore Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such Offshore Rate Loan together with
accrued interest thereon, on the last day of the then current Interest Period
applicable to such Offshore Rate Loan or convert the then outstanding principal
amount of each such Offshore Rate Loan to a Base Rate Loan as of the last day of
such Interest Period (Offshore Currency Loans which are not repaid shall be
redenominated and converted into their Dollar Equivalent of Base Rate Loans in
Dollars).
(b) LAWS AFFECTING OFFSHORE RATE AVAILABILITY. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of their respective
Lending Offices) with any request or directive (whether or not having the force
of law) issued after the date hereof of any such Governmental Authority, central
bank or comparable agency, shall make it unlawful or impossible for any of the
Lenders (or any of their respective Lending Offices) to honor its obligations
hereunder to make or maintain any Offshore Rate Loan, such Lender shall promptly
give notice thereof to the Administrative Agent and the
50
Administrative Agent shall promptly give notice to the Company and the other
Lenders. Thereafter, until the Administrative Agent notifies the Borrowers that
such circumstances no longer exist, (i) the obligations of the affected Lenders
to make Offshore Rate Loans and the right of the Borrowers to convert any
Revolving Credit Loan of the affected Lenders or continue any Revolving Credit
Loan of the affected Lenders as an Offshore Rate Loan shall be suspended and
thereafter the Borrowers may select only Base Rate Loans hereunder, (ii) if any
of the Lenders may not lawfully continue to maintain an Offshore Rate Loan to
the end of the then current Interest Period applicable thereto as an Offshore
Rate Loan, the applicable Offshore Rate Loan of the affected Lenders shall
immediately be converted to a Base Rate Loan for the remainder of such Interest
Period (Offshore Currency Loans shall be redenominated and converted into their
Dollar Equivalent of Base Rate Loans in Dollars) and the Borrowers shall pay any
amount required to be paid pursuant to Section 4.9 in connection therewith and
(iii) if any of the Lenders may not lawfully continue to maintain a Competitive
Bid Loan which bears interest at a rate based on the Offshore Rate to the end of
the then current Interest Period applicable thereto at such rate of interest,
such Competitive Bid Loan of the affected Lender shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period. The Borrowers
shall repay the outstanding principal amount of any Competitive Bid Loans
converted into Base Rate Loans in accordance with clause (iii) of this Section
4.8(b), together with all accrued but unpaid interest thereon and any amount
required to be paid pursuant to Section 4.9 hereof, on the last day of the
Interest Period applicable to such Competitive Bid Loans.
(c) INCREASED COSTS. If, after the date hereof, the introduction of,
or any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) issued after the date hereof
of such Governmental Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with
respect to any Note, Letter of Credit or L/C Application or shall change
the basis of taxation of payments to any of the Lenders (or any of their
respective Lending Offices) of the principal of or interest on any Note,
Letter of Credit or L/C Application or any other amounts due under this
Agreement in respect thereof (except for taxes of the type excluded from
the indemnity provided for in Section 4.11(a)); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, other than any reserve included in the
Eurodollar Reserve Percentage), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account
of, or credit extended by any of the Lenders (or any of their respective
Lending Offices) or shall impose on any of the Lenders (or any of their
respective Lending Offices) or the foreign exchange and interbank
markets any other condition affecting any Note;
51
and the result of any event of the kind described in the foregoing clause (i) or
this clause (ii), is to increase the costs to any of the Lenders of maintaining
any Offshore Rate Loan, Competitive Bid Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes or any
Letter of Credit or L/C Application in respect of an Offshore Rate Loan or
Letter of Credit, then such Lender may promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify the Company, on behalf of the
respective Borrower, of such fact and demand compensation therefor and, within
fifteen (15) days after such notice by the Administrative Agent, such Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or Lenders for such increased cost or reduction, provided, that the
Borrowers shall not be required to compensate a Lender or the Issuing Lender
under this Section for any increased costs or reductions incurred more than 90
days prior to the date that such Lender or the Issuing Lender notifies the
Company of such increased costs or reductions and of such Lender's or the
Issuing Lender's intention to claim compensation therefor. The Administrative
Agent and the applicable Lender will promptly notify the Company, on behalf of
the respective Borrower, of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 4.8(c); PROVIDED
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrowers in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's reasonable discretion, based
upon the assumption that such Lender funded its Aggregate Revolving Credit
Commitment Percentage of the Offshore Rate Loans, or the amount of any
Competitive Bid Loans made by such Lender, in the London interbank market and
using any reasonable attribution or averaging methods which such Lender deems
appropriate and practical. A certificate of such Lender setting forth in
reasonable detail the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the respective Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
SECTION 4.9 INDEMNITY.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrowers shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by such Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds
52
were obtained. The Borrowers shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing. For purposes of
calculating amounts payable by the Borrowers to the Lenders under this Section
4.9, each Lender shall be deemed to have funded each Offshore Rate Loan made by
it by a matching deposit or other borrowing in the London Dollar interbank
market for a comparable amount and for a comparable period, whether or not such
Offshore Rate Loan was in fact so funded.
SECTION 4.10 CAPITAL REQUIREMENTS.
If either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law after the date hereof or (b) compliance
with any guideline or request issued after the date hereof from any central bank
or comparable agency or other Governmental Authority (whether or not having the
force of law), has or would have the effect of reducing the rate of return on
the capital of, or has affected or would affect the amount of capital required
to be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to any Lender's Revolving Credit Commitment or
with reference to the Swingline Lender's Swingline Maximum and other commitments
of this type, below the rate which the Lender or such other corporation could
have achieved but for such introduction, change or compliance, then within five
(5) Business Days after written demand by any such Lender, the Borrowers shall
pay to such Lender from time to time as specified by such Lender additional
amounts sufficient to compensate such Lender or other corporation for such
reduction, provided, that the Borrower shall not be required to pay to such
Lender such additional amounts under this Section for any amount incurred as a
result of such reduction more than 90 days prior to the date that such Lender or
the Issuing Lender notifies the Borrower of such reduction and of such Lender's
or the Issuing Lender's intention to claim compensation therefor. A certificate
of such Lender setting forth in reasonable detail the basis for determining such
amounts necessary to compensate such Lender shall be forwarded to the Borrowers
through the Administrative Agent and shall be conclusively presumed to be
correct save for manifest error.
SECTION 4.11 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by any Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and 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
Lender or the Administrative Agent (as the case may be) is organized or its
principal office is located or is or should be qualified to do business or any
political subdivision thereof, or in the case of any Lender, in which its
applicable Lending Office is located (PROVIDED, however, that no Lender shall be
deemed to be located in any jurisdiction solely as a result of taking any action
related to this Agreement, the Notes or Letters of Credit) and (ii) any branch
profits tax imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (i) above (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
53
liabilities being hereinafter referred to as "TAXES"). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.11) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions been made, (B) such
Borrower shall make such deductions, (C) such Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
applicable law, and (D) such Borrower shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in Section 4.11(d). No Borrower shall, however, be required
to pay any amounts pursuant to clause (A) of the preceding sentence to any
Foreign Lender or the Administrative Agent not organized under the laws of the
United States of America or a state thereof (or the District of Columbia) if
such Foreign Lender or the Administrative Agent fails to comply with the
requirements of paragraph (e) of this Section 4.11.
(b) STAMP AND OTHER TAXES. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"OTHER TAXES").
(c) INDEMNITY. Each Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability prepared by a Lender
or the Administrative Agent, absent manifest error, shall be conclusive,
PROVIDED that if the Borrowers reasonably believe that such Taxes or Other Taxes
were not correctly or legally asserted, such Lender or the Administrative Agent
(as the case may be) shall use reasonable efforts to cooperate with the
Borrowers, at the Borrowers' expense, to obtain a refund of such Taxes or Other
Taxes. Such indemnification shall be made within thirty (30) days from the date
such Lender or the Administrative Agent (as the case may be) makes written
demand therefor. If a Lender or the Administrative Agent shall become aware that
it is entitled to receive a refund in respect of Taxes or Other Taxes, it
promptly shall notify the Company, on behalf of the respective Borrower, of the
availability of such refund and shall, within sixty (60) days after receipt of a
request by the Company, on behalf of such Borrower, pursue or timely claim such
refund at such Borrower's expense. If any Lender or the Administrative Agent
receives a refund in respect of any Taxes or Other Taxes for which such Lender
or the Administrative Agent has received payment from any Borrower hereunder, it
promptly shall repay such refund (plus interest received, if any) to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section 4.11 with respect to Taxes or
Other Taxes giving rise to such refund), PROVIDED that such
54
Borrower, upon the request of such Lender or the Administrative Agent, agrees to
return such refund (plus any penalties, interest or other charges required to be
paid) to such Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund to the relevant taxing
authority. Nothing contained in this Section 4.11(c) shall require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential).
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the respective Borrower shall furnish to
the Administrative Agent, at its address referred to in Section 13.1, the
original or a certified copy of a receipt evidencing payment thereof or other
evidence of payment satisfactory to the Administrative Agent.
(e) DELIVERY OF TAX FORMS. Each Foreign Lender shall deliver to the
Company (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 Company as will
permit all payments under this Agreement to be made without withholding. Without
limiting the generality of the foregoing, each Foreign Lender agrees that it
will deliver to the Administrative Agent and the Company (or in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) (i) two (2) duly completed copies of Internal Revenue Service Form
W-8ECI or W-8BEN, or any successor form thereto, as the case may be, certifying
in each case that such Foreign Lender is entitled to receive payments made by
any Borrower hereunder and under the Notes payable to it, without deduction or
withholding of any United States federal income taxes and (ii) a duly completed
Internal Revenue Service Form W-8 or W-9, or any successor form thereto, as the
case may be, to establish an exemption from United State backup withholding tax.
Each such Foreign Lender shall deliver to the Company and the Administrative
Agent such forms on or before the date that it becomes a party to this Agreement
(or in the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each such Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Lender. Each such Lender shall promptly notify the
Company and the Administrative Agent at any time that it determines that it is
no longer in a position to provide any previously delivered certificate to the
Company (or any other form of certification adopted by the U.S. taxing
authorities for such purpose) which notice shall create in Borrower the right to
replace such Lender pursuant to Section 4.12 hereof.
(f) Each Lender agrees upon the request of the Company and at the
Company's expense to complete, accurately and in a manner reasonably
satisfactory to the Company and the Administrative Agent, and to execute,
arrange for any required certification of, and deliver to the Company (with a
copy to the Administrative Agent) (or to such government or taxing authority as
the Company or Administrative Agent reasonably directs), any other form or
document that may be required under the laws of any jurisdiction outside the
United States to allow the Company or any other Borrower to make a payment under
this Agreement or the other Loan Documents without any deduction or withholding
for or on account of any taxes of the type described in this Section 4.11 or
with any such deduction or withholding for or on account of such taxes at a
reduced rate, in each case so long as such Lender is (i) legally entitled to
provide such certification and deliver such form or document and (ii) such
action is consistent with its
55
overall tax policies and is not otherwise, in the judgment of such Lender,
impractical or disadvantageous in any material respect to such Lender.
(g) Notwithstanding any provision of this Section 4.11 to the
contrary, no Borrower shall have any obligation to pay any taxes or to indemnify
any Lender for such taxes pursuant to this Section 4.11 to the extent that such
taxes result from (i) the failure of any Lender to comply with its obligations
pursuant to Section 4.11(f) or (ii) any representation made on Form 1001, 4224
or W-8 or successor applicable form or certification by any Lender incurring
such taxes proving to have been incorrect, false or misleading in any material
respect when so made or deemed to be made or (iii) such Lender changing its
applicable Lending Office to a jurisdiction in which such taxes arise, except to
the extent in the judgment of such Lender such change was required by the terms
of this Agreement.
(h) To the extent that the payment of any Lender's Taxes or Other
Taxes by the Borrowers hereunder gives rise from time to time to a Tax Benefit
(defined below) to such Lender in any jurisdiction other than the jurisdiction
which imposed such Taxes or Other Taxes, such Lender shall pay to the Borrowers
the amount of each such Tax Benefit so recognized or received. The amount of
each Tax Benefit and, therefore, payment to the Borrowers will be determined
from time to time by the relevant Lender in its sole discretion, which
determination shall be binding and conclusive on all parties hereto. Each such
payment will be due and payable by such Lender to the Borrowers within a
reasonable time after the filing of the tax return in which such Tax Benefit is
recognized or, in the case of any tax refund, after the refund is received;
provided, however, if at any time thereafter such Lender is required to rescind
such Tax Benefit or such Tax Benefit is otherwise disallowed or nullified, the
Borrowers shall promptly, after notice thereof from such Lender, repay to such
Lender the amount of such Tax Benefit previously paid to it by such Lender and
which has been rescinded, disallowed or nullified. For purposes hereof, the term
"Tax Benefit" shall mean the amount by which any Lender's income tax liability
for the taxable period in question is reduced below what would have been payable
had the Borrowers not been required to pay such Lender's taxes hereunder.
(i) SURVIVAL. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrowers contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the Revolving Credit Commitment, but
shall be limited in duration to the applicable statute of limitations for Taxes
or Other Taxes for which indemnification is sought.
SECTION 4.12 MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 4.8, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Sections 4.10
or 4.11, 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 sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable under Sections 4.8,
4.10 or 4.11, as the case may be, in the
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future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all costs and expenses incurred by any Lender in connection
with such designation or assignment.
(b) If any Lender requests compensation under Section 4.8, or if the
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Sections 4.10 or
4.11, or any Lender is unable to make Offshore Rate Loans for the reasons set
forth in Section 4.8 or because it is unwilling to accept a proposed Designated
Borrower because it is unwilling or unable to obtain additional licenses or
franchises to enable it to make such requested Loan or if any Lender defaults in
its obligation to fund Loans hereunder, then the Company 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 set forth in Section 13.9 all its interests,
rights and obligations under this Agreement (other than any outstanding
Competitive Bid Loans held by such Lender) to an assignee that shall assume such
obligations (which assignee may be another Lender); provided, that (i) the
Company shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal amount of
all Loans (other than any outstanding Competitive Bid Loans) owed to it, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (in the case of such outstanding principal and accrued
interest) and from the Company (in the case of all other amounts) and (iii) in
the case of a claim for compensation under Section 4.8 or payments required to
be made pursuant to Sections 4.10 or 4.11, 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 Company to
require such assignment and delegation cease to apply.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CONDITIONS TO CLOSING.
The obligations of the Lenders to close this Agreement are subject to
the satisfaction or waiver of each of the following conditions:
(a) EXECUTED LOAN DOCUMENTS. This Agreement, the Revolving Credit
Notes and all other applicable Loan Documents shall have been duly authorized,
executed and delivered to the Administrative Agent by the parties thereto, shall
be in full force and effect and no Default shall exist hereunder or thereunder.
(b) CLOSING CERTIFICATES; ETC.
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(i) OFFICERS' CERTIFICATES. The Administrative Agent shall
have received a certificate from a Responsible Officer, in form and
substance reasonably satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers
contained in this Agreement and the other Loan Documents are true,
correct and complete in all material respects; that the Borrowers are
not in violation of any of the covenants contained in this Agreement and
the other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that each of the closing conditions has
been satisfied or waived (assuming satisfaction of the Administrative
Agent where not advised otherwise).
(ii) GENERAL CERTIFICATES. The Administrative Agent shall
have received a certificate of the secretary, assistant secretary of
each Borrower certifying as to the incumbency and genuineness of the
signature of each officer of such Borrower executing Loan Documents to
which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles of incorporation,
certificate of limited partnership, or certificate or articles of
formation, of such Borrower and all amendments thereto, certified as of
a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation or formation, (B) the bylaws, partnership
agreement or operating agreement of such Borrower as in effect on the
date of such certifications, and (C) resolutions duly adopted by the
Board of Directors of such Borrower authorizing, as applicable, the
borrowings contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it
is a party.
(iii) CERTIFICATES OF GOOD STANDING. The Administrative Agent
shall have received certificates as of a recent date of the good
standing of the Borrowers under the laws of their respective
jurisdictions of organization and certificates as of a recent date of
the good standing of each Borrower under the laws of each other
jurisdiction where such Borrower is qualified to do business and where a
failure to be so qualified could reasonably be expected to have a
Material Adverse Effect.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to the
Administrative Agent of internal and external counsel to the Company and
any other Designated Borrower, addressed to the Administrative Agent and
the Lenders with respect to the Borrowers, the Loan Documents and such
other matters as the Administrative Agent shall reasonably request.
(c) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. The Borrowers
shall have obtained all approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having
jurisdiction necessary in order to enter into this Agreement and the
other Loan Documents as of the Closing Date. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending
or notified prohibiting or
58
imposing materially adverse conditions upon the transactions
contemplated by this Agreement and the other Loan Documents or otherwise
referred to herein or therein.
(ii) NO EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing.
(d) NO MATERIAL ADVERSE EFFECT. Since December 31, 2003 nothing
shall have occurred (and neither the Administrative Agent nor the Lenders shall
have become aware of any facts or conditions not previously known) which has
had, or could reasonably be expected to have, a Material Adverse Effect.
(e) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent shall
have received and reviewed (A) the consolidated financial statements of
the Company and its Subsidiaries for the fiscal year ended December 31
2003, including balance sheets, income and cash flow statements audited
by independent public accountants of recognized national standing and
prepared in conformity with GAAP, and the consolidated financial
statements of Company and its Subsidiaries for the fiscal quarter ending
March 31, 2004, and (B) such other financial information as the
Administrative Agent may request.
(ii) PAYMENT AT CLOSING. The Borrowers shall have paid any
accrued and unpaid fees or commissions due hereunder (including, without
limitation, legal fees and expenses payable under Section 13.2, to the
extent invoiced) to the Administrative Agent and Lenders, and to any
other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other
charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(f) LITIGATION. As of the Closing Date, there shall be no actions,
suits or proceedings pending or, to the best knowledge of any Borrower,
threatened (i) with respect to this Agreement or any other Loan Document or (ii)
which could reasonably be expected to have a Material Adverse Effect.
(g) TERMINATION OF PRIOR BANK AGREEMENT. The Prior Bank Agreement
shall have been (or will be upon the initial borrowing hereunder on the Closing
Date and the application of the proceeds thereof) terminated and the obligations
of the Borrowers thereunder shall have been (or will upon such borrowing and
application of proceeds) paid in full and fully satisfied.
(h) MISCELLANEOUS.
(i) PROCEEDINGS AND DOCUMENTS. All Loan Documents, opinions,
certificates and other instruments and all proceedings in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent.
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(ii) ACCURACY AND COMPLETENESS OF INFORMATION. All
information taken as an entirety made available to the Administrative
Agent and/or the Lenders by the Borrowers or any of their
representatives in connection with the transactions contemplated hereby
("INFORMATION") is and will be complete and correct in all material
respects as of the date made available to the Administrative Agent
and/or the Lenders and does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements contained therein not misleading.
SECTION 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the relevant borrowing
or issue date, as applicable:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VI shall be true and correct
in all material respects on and as of such borrowing or issuance date with the
same effect as if made on and as of such date, except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct in all material respects as of such earlier date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall have
occurred and be continuing hereunder on the date of such Extension of Credit,
both before and after giving effect to the Loans to be made on such date and/or
the Letters of Credit to be issued on such date.
(c) NOTICE OF REVOLVING CREDIT BORROWING. To the extent applicable,
the Administrative Agent shall have received a Notice of Revolving Credit
Borrowing and/or Notice of Swingline Borrowing from the Company on behalf of the
relevant Borrower in accordance with Section 2.2(a) or a Competitive Bid Request
in accordance with Section 2.5(a) and a Notice of Account Designation specifying
the account or accounts to which the proceeds of any Loans made after the
Closing Date are to be disbursed.
(d) BORROWER JOINDER AGREEMENT DOCUMENTS. In the case of any Loan to
a new Designated Borrower, the Administrative Agent shall have received a
Borrower Joinder Agreement together with any other documents, certificates,
information or legal opinions from a Designated Borrower as specified in Section
2.10 hereof.
The occurrence of the Closing Date and the acceptance by any Borrower of
the benefits of each Extension of Credit hereunder shall constitute a
representation and warranty by such Borrower to the Administrative Agent and
each of the Lenders that all the conditions specified in Sections 5.1 and 5.2
and applicable to such borrowing have been satisfied as of that time or waived
in writing by the Lenders. All of the Notes, certificates, legal opinions and
other documents and papers referred to in Sections 5.1 and 5.2, unless otherwise
specified, shall be delivered to the Administrative Agent for the benefit of
each of the Lenders and, except for the Notes, in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and Lenders to enter into this
Agreement and to induce the Lenders to make Extensions of Credit, each Borrower
hereby represents and warrants to the Administrative Agent and Lenders that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Borrowers and
its Subsidiaries (other than inactive Subsidiaries which are not Material
Subsidiaries) is duly organized, validly existing and in good standing or active
status, as applicable under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) OWNERSHIP. Each Subsidiary of each of the Borrowers as of the
Closing Date is listed on SCHEDULE 6.L(B).
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each
of the Borrowers and, if applicable, their Subsidiaries has the right, power and
authority and has taken all necessary corporate and other action to authorize
the execution, delivery and performance of each of the Loan Documents to which
it is a party in accordance with its respective terms. Each of the Loan
Documents has been duly executed and delivered by the duly authorized officers
of the Borrowers and each of their Subsidiaries party thereto, as applicable,
and each such document constitutes the legal, valid and binding obligation of
the Borrowers and, if applicable, each of their Subsidiaries party thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS,
ETC. The execution, delivery and performance by the Borrowers and their
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any of the Borrowers or any of
their Subsidiaries to obtain any Governmental Approval or approval of any other
Person not otherwise already obtained or violate any Applicable Law relating to
the Borrowers or any of their Subsidiaries, (ii) conflict with, result in a
breach of or constitute a default under the articles of incorporation, bylaws or
other organizational documents of the Borrowers or any of their Subsidiaries or
any indenture or other material agreement or instrument to which such Person is
a party or by which any of its properties may be bound or any Governmental
Approval relating to such Person
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except as could not reasonably be expected to have a Material Adverse Effect, or
(iii) result in or require the creation or imposition of any material Lien
(other than a Lien permitted under Section 9.2) upon or with respect to any
property now owned or hereafter acquired by such Person.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of the
Borrowers and their respective Subsidiaries (i) has all Governmental Approvals
required by any Applicable Law for it to conduct its business, each of which is
in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of the Borrowers' knowledge,
threatened attack by direct or collateral proceeding, except where the failure
to have such Governmental Approval could not reasonably be expected to have a
Material Adverse Effect, and (ii) is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective properties; in each case, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(f) TAX RETURNS AND PAYMENTS. Each of the Borrowers and their
respective Subsidiaries has timely filed or caused to be filed all federal and
state, local and other tax returns required by Applicable Law to be filed, and
has paid, or made adequate provision for the payment of, all federal and state,
local and other taxes, assessments and governmental charges or levies upon it
and its property, income, profits and assets which are due and payable, except
taxes (i) that are being contested in good faith by appropriate proceedings and
for which such Borrower or Subsidiary, as applicable, has set aside on its books
adequate reserves or (ii) to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect. No Governmental
Authority has asserted any material Lien or other claim against the Borrowers or
any Subsidiary thereof with respect to unpaid taxes which has not been
discharged or resolved. The charges, accruals and reserves on the books of each
of the Borrowers and any of their respective Subsidiaries in respect of federal
and all material state, local and other taxes are, in the judgment of the
Borrowers, adequate, and the Borrowers do not anticipate any material additional
taxes or assessments for any of the periods reflected on such books.
(g) INTELLECTUAL PROPERTY MATTERS. Each of the Borrowers and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which, to the
knowledge of the Borrowers, permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such rights, and, to the
knowledge of the Borrowers, neither the Borrowers nor any Subsidiary thereof is
liable to any Person for infringement under Applicable Law with respect to any
such rights as a result of its business operations, except as could not
reasonably be expected to have a Material Adverse Effect.
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(h) ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE 6.1(H)
(and only to the extent described therein) or as could not reasonably be
expected to have a Material Adverse Effect:
(i) The properties of the Borrowers and their Subsidiaries
(including soils, surface waters, groundwaters on, at or under such
properties) do not contain and are not otherwise affected by, and to the
Borrowers' knowledge have not previously contained or been affected by,
any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws
or (B) could give rise to liability or obligation under applicable
Environmental Laws;
(ii) The properties of the Borrowers and their Subsidiaries
and all operations conducted in connection therewith are in compliance,
and have been in compliance, with all applicable Environmental Laws, and
there are no Hazardous Materials at, under or about such properties or
such operations which could reasonably be expected to interfere with the
continued operation of such properties;
(iii) The Borrowers and their Subsidiaries have obtained, are
in compliance with, and have made all appropriate filings for issuance
or renewal of, all permits, licenses, and other governmental consents
required by applicable Environmental Laws ("ENVIRONMENTAL PERMITS"), and
all such Environmental Permits are in full force and effect;
(iv) Neither any of the Borrowers nor any Subsidiary thereof
has received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws, nor do the Borrowers have knowledge
or reason to believe that any such notice will be received or is being
threatened;
(v) To the knowledge of the Borrowers, Hazardous Materials
have not been transported or disposed of from the properties of the
Borrowers or any of their Subsidiaries in violation of, or in a manner
or to a location which could reasonably be expected to give rise to
liability under, Environmental Laws, nor, to the knowledge of the
Borrowers, have any Hazardous Materials been generated, treated, stored
or disposed of at, on or under any of such properties in violation of,
or in a manner which could reasonably be expected to give rise to
liability under, any Environmental Laws;
(vi) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrowers,
threatened, under any Environmental Law to which any of the Borrowers or
any Subsidiary thereof has been or will be named as a party, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the properties or operations of the Borrowers and their
Subsidiaries; and
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(vii) To the knowledge of the Borrowers, there has been no
release, or threat of release, of Hazardous Materials at or from the
properties of the Borrowers or any of their Subsidiaries, in violation
of or in amounts or in a manner that could reasonably be expected to
give rise to liability under Environmental Laws.
(i) ERISA.
(i) Each of the Borrowers and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee
Benefit Plans except where any such noncompliance could not reasonably
be expected to have a Material Adverse Effect. Except for any failure
that could not reasonably be expected to have a Material Adverse Effect,
each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code. No liability
that could reasonably be expected to have a Material Adverse Effect has
been incurred by the Borrowers or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(ii) No accumulated funding deficiency (as defined in Section
412 of the Code) has been incurred (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from the
Internal Revenue Service been received or requested with respect to any
Pension Plan except for any accumulated funding deficiency or funding
waiver that could not reasonably be expected to have a Material Adverse
Effect;
(iii) Neither the Borrowers nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406
of ERISA or Section 4975 of the Code, (B) incurred any liability to the
PBGC which remains outstanding other than the payment of premiums and
there are no premium payments which are due and unpaid, (C) failed to
make a required contribution or payment to a Multiemployer Plan, or (D)
failed to make a required installment or other required payment under
Section 412 of the Code, except where any of the foregoing individually
or in the aggregate could not reasonably be expected to have a Material
Adverse Effect;
(iv) No Termination Event that could reasonably be expected
to result in a Material Adverse Effect has occurred or is reasonably
expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is
existing or, to the knowledge of the Borrowers, threatened concerning or
involving any Employee Benefit Plan that could reasonably be expected to
result in a Material Adverse Effect.
(j) MARGIN STOCK. No Borrower or any Subsidiary thereof is engaged
principally or as one of its material activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in
64
Regulation U of the Board of Governors of the Federal Reserve System). No part
of the proceeds of any of the Loans or Letters of Credit will be used for
purchasing or carrying margin stock, unless the Borrowers shall have given the
Administrative Agent and Lenders prior notice of such event and such other
information as is reasonably necessary to permit the Administrative Agent and
Lenders to comply, in a timely fashion, with all reporting obligations required
by Applicable Law, or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of such Board of
Governors.
(k) GOVERNMENT REGULATION. No Borrower or any Subsidiary thereof is
an "investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrowers nor any Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended.
(l) BURDENSOME PROVISIONS. No Borrower or any Subsidiary thereof is
a party to any indenture, agreement (excluding the CSC Agreement and the CSC
Put), lease or other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or Applicable Law which is so unusual or
burdensome that in the foreseeable future it could be reasonably expected to
have a Material Adverse Affect. The Borrowers and their Subsidiaries do not
presently anticipate that their future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(m) FINANCIAL STATEMENTS; FINANCIAL CONDITION: ETC.
The financial statements delivered to the Lenders pursuant to
Section 5.1(e)(i) and, if applicable, Section 7.1, copies of which have
been furnished to the Administrative Agent and each Lender, have been
prepared in accordance with GAAP (except, in the case of unaudited
financial statements, for the absence of footnotes and subject to normal
year end adjustments), are complete in all material respects and fairly
present in all material respects the assets, liabilities and financial
position of the Borrowers and their Subsidiaries as at such dates, and
the results of the operations and changes of financial position for the
periods then ended, subject, in the case of unaudited financial
statements, to the absence of footnotes and normal year end adjustments.
(n) NO MATERIAL ADVERSE EFFECT. Since December 31, 2003, there has
been no Material Adverse Effect.
(o) LIENS. None of the properties and assets of the Borrowers or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 9.2.
(p) DEBT AND SUPPORT OBLIGATIONS. SCHEDULE 6.1(P) is a complete and
correct listing of all Debt and Support Obligations of the Borrowers and their
Subsidiaries as of the Closing Date.
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(q) LITIGATION. There are no actions, suits or proceedings pending
nor, to the knowledge of the Borrowers, threatened against or affecting the
Borrowers or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority, which could reasonably be expected to have a Material Adverse Effect.
(r) ABSENCE OF DEFAULTS. No event has occurred and is continuing
which constitutes a Default or an Event of Default.
(s) ABSENCE OF BANKRUPTCY EVENTS. Since December 31, 2003, no event
has occurred and is continuing which constitutes a Bankruptcy Event, other than
Bankruptcy Events affecting Subsidiaries which are not Material Subsidiaries.
(t) ACCURACY AND COMPLETENESS OF INFORMATION. As of the Closing
Date, the Borrowers have disclosed to the Lenders all agreements, instruments
and corporate or other restrictions to which they or any of their Subsidiaries
are subject, and all other matters known to them, other than general market,
economic and industry conditions, that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. The written
information, taken as a whole, furnished by or on behalf of the Borrowers to the
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) does not contain any material misstatement of fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; PROVIDED
that, with respect to any projected financial information, the Borrowers
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
(u) PROPERTY. The Borrowers and their Subsidiaries have good and
marketable title to all material Property owned by them and valid leasehold
interests in all material Property leased by them (except as permitted by the
terms of this Agreement), free and clear of all Liens, except for Liens
permitted pursuant to Section 9.2.
(v) LABOR PRACTICES. No Borrower or any Subsidiary thereof is
engaged in any unfair labor practices that could reasonably be expected to have
a Material Adverse Effect. There is (i) no unfair labor practice complaint
pending against any Borrower or any Subsidiary thereof, to the knowledge of the
Borrowers, threatened against a Borrower or any Subsidiary thereof, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against a Borrower or any Subsidiary thereof or, to the knowledge of the
Borrowers, threatened against a Borrower or any Subsidiary thereof, (ii) no
strike, labor dispute, slowdown or stoppage pending against a Borrower or any of
its Subsidiaries or, to the knowledge of the Borrowers, threatened against a
Borrower or any Subsidiary thereof and (iii) no union representation question
exists with respect to the employees of a Borrower or any Subsidiary thereof,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a Material Adverse Effect.
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(w) SUBORDINATED INDEBTEDNESS. Neither the Company nor its
Subsidiaries has any Debt that is subordinated to any other Debt (except for any
subordinated loans made or deemed made by the seller of any account receivables
and related property to the purchaser of such receivables and related property
in connection with the Permitted Securitization Transaction in order to fund all
or a portion of the purchase price for such receivables and related property
which are transferred as part of the Permitted Securitization Transaction),
unless such subordinated debt is subordinated in right of payment to the
Obligations.
(x) FOREIGN ASSETS CONTROL REGULATIONS, ETC. Neither the making of
any Loan nor the use of the proceeds thereof nor the issuance of any Letter of
Credit will violate (a) the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, (b) the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (the "Patriot Act") or (c) Executive Order No. 13,224, 66 Fed. Reg. 49,079
(2001), issued by the President of the United States (Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit or Support Terrorism). Without limiting the foregoing, neither Holdings
nor any of its Subsidiaries is a "blocked person" as described in Section 1 of
such Executive Order or engages in any dealings or transactions with, or is
otherwise associated with, any such blocked person.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate related hereto, or
any of the Loan Documents (including but not limited to any such representation
or warranty made in or in connection with any amendment thereto) shall
constitute representations and warranties made under this Agreement. All
representations and warranties made under this Agreement shall be made or deemed
to be made at and as of the Closing Date (unless expressly relating to any
earlier date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations (other than contingent liabilities not yet due
and payable) have been paid and satisfied in full and the Termination Date has
occurred, unless consent has been obtained in the manner set forth in Section
13.11 hereof, the Company will furnish or cause to be furnished to the
Administrative Agent and to the Lenders at their respective addresses as set
forth in Section 13.1 and on SCHEDULE 13.1, or such other office as may be
designated by the Administrative Agent and Lenders from time to time:
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SECTION 7.1 FINANCIAL STATEMENTS, ETC.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in
any event within forty-five (45) days after the end of each of the first three
fiscal quarters of each Fiscal Year, either (i) a copy of a report on Form 10-Q,
or any successor form, and any amendments thereto, filed by the Company with the
Securities and Exchange Commission with respect to the immediately preceding
fiscal quarter or (ii) an unaudited Consolidated balance sheet of the Company
and its Subsidiaries as of the close of such fiscal quarter and unaudited
Consolidated statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including any notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
preceding Fiscal Year and prepared by the Company in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by a Responsible Officer of the
Company to present fairly in all material respects the financial condition of
the Company and its Subsidiaries as of their respective dates and the results of
operations of the Company and its Subsidiaries for the respective periods then
ended, subject to normal year end adjustments and to the absence of footnotes
required by GAAP.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year either (i) a
copy of a report on Form 10-K, or any successor form, and any amendments
thereto, filed by the Company with the Securities and Exchange Commission with
respect to the immediately preceding Fiscal Year or (ii) an audited Consolidated
balance sheet of the Company and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by the Company and certified by a
nationally recognized independent certified public accounting firm acceptable to
the Administrative Agent in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during the
year, and accompanied by a report thereon by such certified public accountants
that is not qualified with respect to scope limitations imposed by the Company
or any of its Subsidiaries or with respect to accounting principles followed by
the Company or any of its Subsidiaries not in accordance with GAAP.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(a) or (b), a certificate of a Responsible Officer of the Company in the form
of EXHIBIT G attached hereto (an "OFFICER'S COMPLIANCE CERTIFICATE") (a)
certifying as to statements consistent with the applicable requirements of the
Securities and Exchange Commission, (b) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a Default or
an Event of Default, specifying the details thereof and the action which the
Company has taken or proposes
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to take with respect thereto and (c) setting forth in reasonable detail
calculations demonstrating compliance with the financial covenants.
SECTION 7.3 ACCOUNTANTS' CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(b), a certificate of the independent public accountants certifying such
financial statements addressed to the Administrative Agent for the benefit of
the Lenders stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence.
SECTION 7.4 OTHER REPORTS.
(a) Promptly after the filing thereof, a copy of (i) each report or
other filing made by any of the Borrowers or any or their Subsidiaries with the
Securities and Exchange Commission and required by the Securities and Exchange
Commission to be delivered to the shareholders of the Borrowers or any
Subsidiary thereof, (ii) each report made by any of the Borrowers or any
Subsidiary thereof to the Securities and Exchange Commission on Form 8-K and
(iii) each final registration statement of any of the Borrowers or any
Subsidiary thereof filed with the Securities and Exchange Commission, except in
connection with pension plans and other employee benefit plans; and
(b) Such other information regarding the operations, business
affairs and financial condition of the Borrowers and/or any of their
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS.
Prompt (but in no event later than (x) with respect to clause (d) below,
two (2) Business Days after a Responsible Officer obtains knowledge thereof or
(y) with respect to any other clause below, five (5) Business Days after a
Responsible Officer obtains knowledge thereof) telephonic (confirmed in writing)
or written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any court
or before any arbitrator against or involving any of the Borrowers or any
Subsidiary thereof or any of their respective properties, assets or businesses
the potential liability of which in the reasonable judgment of the Borrowers
could reasonably be expected to exceed $25,000,000;
(b) any notice of any violation received by any of the Borrowers or
any Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, the potential
liability of which in the reasonable judgment of the Borrowers in any such case
could reasonably be expected to exceed $25,000,000;
69
(c) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof) which could reasonably be
expected to have a Material Adverse Effect, (ii) all notices received by any of
the Borrowers or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
which could reasonably be expected to have a Material Adverse Effect, (iii) all
notices received by any of the Borrowers or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA which could reasonably be expected
to have a Material Adverse Effect, (iv) the Borrowers obtaining knowledge or
reason to know that the Borrowers or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA which could
reasonably be expected to have a Material Adverse Effect, and (v) the occurrence
of a Reportable Event which could reasonably be expected to have a Material
Adverse Effect;
(d) the occurrence of any Default or an Event of Default; and
(e) the receipt by the Company or any of its Subsidiaries of written
notice from CSC or any of its Subsidiaries regarding the exercise of the CSC
Put.
SECTION 7.6 RATINGS INFORMATION.
The Company shall, no later than five (5) Business Days after a
Responsible Officer obtains knowledge of any such change, give notice to the
Administrative Agent (by telephone, followed promptly by written notice
transmitted by facsimile with a hand copy sent promptly thereafter) of any
change (either expressly or pursuant to a letter from S&P or Xxxxx'x stating an
"implied" rating, excluding in all cases any private indicative ratings that the
Company may request from time to time from Xxxxx'x or S&P) in rating by S&P or
Xxxxx'x in respect of the Company's non-credit enhanced senior unsecured
long-term debt, together with details thereof, and of any announcement by S&P or
Xxxxx'x that its rating in respect of such non-credit enhanced senior unsecured
long-term debt is "under review" or that any such debt rating has been placed on
a "Credit Watch List"(R) or "watch list" or that any similar action has been
taken by S&P or Xxxxx'x.
SECTION 7.7 ACCURACY OF INFORMATION.
All written information, reports, statements and other papers and data
furnished by or on behalf of the Borrowers to the Administrative Agent or any
Lender (other than financial forecasts) whether pursuant to this Article VII or
any other provision of this Agreement, shall be, at the time the same is so
furnished, true and complete in all material respects.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than contingent liabilities not yet
due and payable) have been paid and satisfied in full and the Termination Date
has occurred, unless consent has been obtained in the manner provided for in
Section 13.11, each Borrower will, and will cause each of its respective
Subsidiaries to:
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED MATTERS.
(i) Except as permitted by Section 9.4 and Section 9.5, preserve and
maintain its separate corporate existence and all rights, franchises, licenses
and privileges necessary to the conduct of its business, PROVIDED however, that,
subject to compliance with Section 8.9, nothing in the foregoing shall prevent
the Company or any Subsidiary from discontinuing any line of business if (i) no
Default or Event of Default exists or would result therefrom, and (ii) with
respect to the discontinuance of a material line of business, the Board of
Directors of the Company determines in good faith that such discontinuance is in
the best interest of the Company and its Consolidated Subsidiaries, taken as a
whole.
(ii) Qualify and remain qualified as a foreign corporation and
authorized to do business in each jurisdiction where the nature and scope of its
activities require it to so qualify under Applicable Law, except where the
failure to so preserve and maintain its existence and rights or to so qualify
could not reasonably be expected to have a Material Adverse Effect.
SECTION 8.2 MAINTENANCE OF PROPERTY.
Protect and preserve all properties useful in and material to its
business, including copyrights, patents, trade names and trademarks; maintain in
good working order and condition all buildings, equipment and other tangible
real and personal property material to the conduct of its business, ordinary
wear and tear excepted; and from time to time make or cause to be made all
renewals, replacements and additions to such property necessary for the conduct
of its business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in each case, where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 8.3 INSURANCE.
Maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as are consistent with past
practices and prudent business practice (and in any event consistent with normal
industry practice), and as may be required by Applicable Law.
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SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS.
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete in all material respects) as may be
required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its properties.
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS.
(a) Pay and perform all of its Obligations under this Agreement and
the other Loan Documents.
(b) Pay and discharge (i) all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties attach
thereto, and (ii) all other material indebtedness, obligations and liabilities
in accordance with customary trade practices; PROVIDED that such Borrower or
Subsidiary may contest any item described in clause (i) or (ii) of this Section
8.5(b) in good faith and by proper proceedings so long as adequate reserves are
maintained with respect thereto to the extent required by GAAP.
(c) Perform all of its obligations under the terms of each mortgage,
indenture, security agreement, loan agreement or credit agreement and each other
agreement, contract or instrument by which it is bound, except where such
non-performances could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS.
Observe and remain in compliance with all Applicable Laws and maintain
in full force and effect all Governmental Approvals, in each case applicable to
the conduct of its business, except where the failure to observe, comply or
maintain could not reasonably be expected to have a Material Adverse Effect.
SECTION 8.7 ENVIRONMENTAL LAWS.
In addition to and without limiting the generality of Section 8.6, (a)
comply with, and use commercially reasonable efforts to ensure such compliance
by all tenants and subtenants with all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, except where
the failure to obtain, comply or maintain could not reasonably be expected to
have a Material Adverse Effect, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding
72
Environmental Laws, except (i) where the failure to do so could not reasonably
be expected to have a Material Adverse Effect or (ii) to the extent the
Borrowers or any of their Subsidiaries are contesting, in good faith, any such
requirement, order or directive before the appropriate Governmental Authority so
long as adequate reserves are maintained with respect thereto to the extent
required by GAAP, and (c) defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the operations or properties of the
Borrowers or such Subsidiaries, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable and actual attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor.
SECTION 8.8 COMPLIANCE WITH ERISA.
In addition to and without limiting the generality of Section 8.6, (a)
comply with all applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder with respect to all Employee Benefit
Plans, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect, (b) not take any action or fail to take action
the result of which would result in a liability to the PBGC or to a
Multiemployer Plan in an amount that could reasonably be expected to have a
Material Adverse Effect, and (c) furnish to the Administrative Agent or any
Lender upon the Administrative Agent's or such Lender's request such additional
information about any Employee Benefit Plan concerning compliance with this
covenant as may be reasonably requested by the Administrative Agent or such
Lender.
SECTION 8.9 CONDUCT OF BUSINESS.
Carry on substantially all of its businesses in substantially the same
fields as the businesses conducted on the Closing Date and in lines of business
reasonably related thereto or as otherwise permitted pursuant to the terms of
this Agreement. Additionally, the Permitted Securitization Subsidiary may carry
on activities necessary or incidental to the acquisition of accounts receivable
and related rights from the Company and the financing of such accounts
receivable and related rights.
SECTION 8.10 VISITS AND INSPECTIONS.
Subject to compliance with applicable securities laws, permit
representatives of the Administrative Agent or any Lender, from time to time
upon reasonable prior written notice to the Company and during ordinary business
hours, to visit and inspect its properties; inspect and
73
make extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business prospects.
Notwithstanding the foregoing, neither the Administrative Agent nor the Issuing
Lender or any other Lender shall have the right to inspect or make or receive
copies of any customer data files or any other credit information or files
concerning consumers owned or maintained by the Company or any of its
Subsidiaries.
SECTION 8.11 USE OF PROCEEDS.
Use the proceeds of the Extensions of Credit for the purposes set forth
in Section 2.1(b). Not in limitation of the foregoing, the Borrower, and any
Designated Borrower will use the proceeds of all Loans to finance working
capital needs and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used for general corporate purposes.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations (other than contingent liabilities not yet
due and payable) have been paid and satisfied in full and the Termination Date
has occurred, unless consent has been obtained in the manner set forth in
Section 13.11:
SECTION 9.1 FINANCIAL COVENANTS.
(a) MAXIMUM LEVERAGE RATIO. As of the end of each fiscal quarter,
commencing with the end of the first fiscal quarter ending after the Closing
Date, the Borrowers will not permit the Leverage Ratio to be greater than 3.00
to 1.00; PROVIDED, HOWEVER, the maximum Leverage Ratio may be greater than 3.00
to 1.00 but shall not be greater than 3.25 to 1.00 as of the end of each of the
first four (4) fiscal quarters ending after the payment by the Company of its
obligations in connection with the CSC Put.
(b) MINIMUM INTEREST COVERAGE RATIO. As of the end of each fiscal
quarter, commencing with the end of the first fiscal quarter ending after the
Closing Date, the Borrowers will not permit the Interest Coverage Ratio to be
less than 4.00 to 1.00.
SECTION 9.2 LIMITATIONS ON LIENS.
No Borrower will, nor will it permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien on, or with respect to, any of its
assets or properties (including without
74
limitation shares of Capital Stock or other ownership interests owned by it),
real or personal, whether now owned or hereafter acquired, except:
(a) Liens existing on the Closing Date and set forth on SCHEDULE
9.2;
(b) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) Liens of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals and other
similar Liens imposed by law so long as such Liens secure claims incurred in the
ordinary course of business, (i) which are not overdue for a period of more than
thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts or (ii) to secure the performance
of letters of credit, bids, tenders, sales, contracts, leases, statutory
obligations, surety, appeal and performance bonds and other similar obligations
incurred in the ordinary course of business, in each case not incurred in
connection with the borrowing of money or the payment of the deferred purchase
price of property;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of any material parcel of real
property or impair the use thereof in the ordinary conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Subsidiary existing at
the time such Subsidiary becomes a Subsidiary of a Borrower and not incurred in
contemplation thereof, as long as the outstanding principal amount of the Debt
secured thereby is not voluntarily increased by such Subsidiary after the date
such Subsidiary becomes a Subsidiary of such Borrower;
(h) Liens on the property or assets of the Borrowers or any
Subsidiary securing Debt which is incurred to finance or refinance the
acquisition of such property or assets, PROVIDED that (i) each such Lien shall
be created substantially simultaneously with the acquisition of the related
property or assets; (ii) each such Lien does not at any time encumber any
property other than the related property or assets financed by such Debt and the
proceeds thereof; (iii) the principal amount of Debt secured by each such Lien
is not increased; and (iv) the principal amount of Debt secured by each such
Lien (together with any accrued interest thereon and closing costs relating
thereto) shall at no time exceed 100% of the original purchase price of such
related property or assets at the time acquired;
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(i) Liens consisting of judgment or judicial attachment Liens,
PROVIDED that (i) the claims giving rise to such Liens are being diligently
contested in good faith by appropriate proceedings, (ii) adequate reserves for
the obligations secured by such Liens have been established and (iii)
enforcement of such Liens has been stayed;
(j) Liens (if any) against the Company or any Consolidated
Subsidiary which is created solely to evidence (i) the transfer of any
receivables and related property by the Company and certain of its Subsidiaries
as originators under any Permitted Securitization Transaction to another direct
or indirect Subsidiary of the Company, as purchaser, pursuant to any Permitted
Securitization Transaction, (ii) the transfer of any receivables and related
property from the purchaser referred to in the immediately preceding clause (i)
to any Permitted Securitization Subsidiary pursuant to any Permitted
Securitization Transaction, and (iii) any back-up Lien granted by the purchaser
referred to in the immediately preceding clause (i) and the Permitted
Securitization Subsidiary, in each case solely in any receivables and related
property being transferred pursuant to the Permitted Securitization Transaction;
(k) any Lien against a Permitted Securitization Subsidiary pursuant
to any Permitted Securitization Transaction;
(l) any Lien on any specific fixed asset of any corporation existing
at the time such corporation is merged or consolidated with or into any Borrower
or a Consolidated Subsidiary and not created in contemplation of such event;
(m) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
paragraphs of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt (together with any accrued
interest thereon and closing costs relating thereto) secured by any such Lien is
not increased;
(n) any Lien existing on any specific fixed asset prior to the
acquisition thereof by any Borrower or a Consolidated Subsidiary and not created
in contemplation of such acquisition;
(o) Liens securing Debt owing by any Subsidiary to the Company or
another Wholly Owned Subsidiary;
(p) inchoate Liens arising under ERISA to secure current service
pension liabilities as they are incurred under the provisions of Plans from time
to time in effect;
(q) rights reserved to or invested in any municipality or
governmental, statutory or public authority to control or regulate any property
of such Borrower or such Subsidiary, as the case may be, or to use such property
in a manner which does not materially impair the use of such property for the
purposes of which it is held by such Borrower or such Subsidiary, as the case
may be; and
(r) Liens not otherwise permitted by this Section 9.2 securing Debt
or other obligations in an aggregate principal amount at any time outstanding
that does not exceed 20%
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of Consolidated Net Tangible Assets, measured as of the date of the incurrence
of such Debt or obligation.
SECTION 9.3 LIMITATIONS ON SUBSIDIARY DEBT.
No Borrower will permit any Subsidiary of the Company to contract,
create, incur, assume or permit to exist any Debt, except:
(a) Debt arising under this Agreement and the other Loan Documents;
(b) Debt existing as of the Closing Date as referenced on Schedule
6.1(p) (and renewals, refinancings or extensions thereof on terms and conditions
no less favorable in any material respect to such Person than such existing Debt
and in a principal amount not in excess of that outstanding as of the date of
such renewal, refinancing or extension);
(c) Capital Lease obligations and Debt incurred, in each case, to
provide all or a portion of the purchase price or costs of construction of an
asset or, in the case of a Sale and Leaseback Transaction, to finance the value
of such asset owned by the Borrower or any of its Subsidiaries, PROVIDED that
(i) such Debt when incurred shall not exceed the purchase price or cost of
construction of such asset or, in the case of a Sale and Leaseback Transaction,
the fair market value of such asset and any transaction costs directly related
thereto, (ii) no such Debt shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon (together with any accrued interest
thereon and closing costs relating thereto)at the time of such refinancing; and
(iii) the aggregate principal amount of all such Debt shall not exceed
$200,000,000 at any time outstanding;
(d) intercompany Debt owed by any Subsidiary of the Company to the
Company or any other Subsidiary of the Company;
(e) Debt and Obligations owing under Hedging Agreements relating to
the Loans hereunder and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price risks
and not for speculative purposes;
(f) Debt in connection with any Permitted Securitization
Transaction;
(g) Debt of the types described in clause (j) of the definition of
Debt which is incurred in the ordinary course of business in connection with (1)
the sale or purchase of goods, or (2) to assure performance by the Company or
any of its Subsidiaries of their respective service contracts, operating leases,
obligations to a utility or a governmental entity, or worker's compensation
obligations;
(h) Support Obligations of Debt of the Company or Debt otherwise
permitted under this Section 9.3; and
(i) other Debt of the Subsidiaries at any time outstanding which in
the aggregate does not exceed 20% of Consolidated Net Tangible Assets, measured
as of the date of the incurrence of such Debt.
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SECTION 9.4 LIMITATIONS ON MERGERS AND LIQUIDATION.
No Borrower will, nor will it permit any of its Subsidiaries to, merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), except:
(a) Any Borrower or a Subsidiary may merge with another Person that
is not a Borrower or a Subsidiary, PROVIDED that (i) such other Person is
organized under the law of the United States or one of its states, (ii) in the
case of any merger involving a Borrower, such Borrower is the corporation
surviving such merger, (iii) in the case of any merger involving a Subsidiary,
the survivor is or will become a Subsidiary of the Company, (iv) immediately
prior to and after giving effect to such merger, no Default or Event of Default
exists or would exist, (iv) the Board of Directors of such Person has approved
such merger and (v) such transaction is permitted under Section 9.6;
(b) Any Subsidiary that is not a Borrower may merge into a Borrower
or any Wholly-Owned Subsidiary of a Borrower;
(c) Any Subsidiary that is not a Borrower may liquidate, wind-up or
dissolve itself into a Borrower or any Wholly-Owned Subsidiary of a Borrower;
(d) Any Borrower may merge with any other Borrower, provided that in
the case of any merger involving the Company, the Company is the corporation
surviving such merger; and
(e) Any Borrower (other than the Company) may liquidate, wind-up or
dissolve itself into any other Borrower.
SECTION 9.5 LIMITATION ON ASSET DISPOSITIONS.
No Borrower will, nor will it permit any of its Subsidiaries to, make
any Asset Disposition (including, without limitation, in connection with any
Sale and Leaseback Transaction), in one transaction or a series of transactions,
unless (a) no Default or Event of Default shall exist on the date of, or shall
result from, any such transaction (including after giving effect to such
transaction on a pro forma basis), and (b) the assets so disposed of or
transferred in connection with all such Asset Dispositions in any Fiscal Year
did not contribute, in the aggregate, more than 20% of Consolidated Operating
Profit for the immediately preceding Fiscal Year.
SECTION 9.6 LIMITATIONS ON ACQUISITIONS.
Other than transactions permitted under Section 9.7, no Borrower will,
nor will it permit any of its Subsidiaries to, acquire all or any portion of the
Capital Stock or other ownership interest in any Person which is not a
Subsidiary or all or any substantial portion of the assets, property and/or
operations of a Person which is not a Subsidiary, UNLESS (a) the Person, assets,
property and/or operations being acquired engage in or are engaged in the same
line of business
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as that engaged in by the Borrower and its Subsidiaries on the Closing Date or a
business reasonably related thereto, (b) in the case of an acquisition of
Capital Stock or other ownership interest of a Person, the Board of Directors of
the Person which is the subject of such acquisition shall have approved the
acquisition (c) no Default or Event of Default shall exist on the date of, or
shall result from, any such acquisition (including after giving effect to such
transaction on a pro forma basis) and (d) in the case of the acquisition of all
or any portion of the Capital Stock or other ownership interest in any Person,
such Person so acquired will be Consolidated with the Company in its financial
statements upon the consummation of such acquisition.
SECTION 9.7 LIMITATION ON RESTRICTED INVESTMENTS.
No Borrower will, nor will it permit any of its Subsidiaries to, make
any Restricted Investment unless, after giving effect thereto, the aggregate
amount of all such Restricted Investments outstanding at any time does not
exceed 20% of the Consolidated Total Assets, measured as of the date of the
making of such Restricted Investment; PROVIDED that (i) the foregoing shall be
tested as at the end of each fiscal quarter, and (ii) no Default or Event of
Default shall have occurred and be continuing both before and after giving
effect to any such Restricted Investment.
SECTION 9.8 LIMITATION ON RESTRICTED PAYMENTS.
No Borrower will, nor will it permit any of its Subsidiaries to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except that the Company and its Subsidiaries may make
Restricted Payments in an aggregate amount in any Fiscal Year not to exceed 20%
of Consolidated Total Assets, measured as of the last day of the immediately
preceding Fiscal Year.
SECTION 9.9 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Neither any Borrower nor any of its Consolidated Subsidiaries shall
enter into, or be a party to, any transaction with any Affiliate of such
Borrower or such Subsidiary (which Affiliate is not a Borrower or a Subsidiary),
except pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are no less favorable to such Borrower or such Subsidiary
than would be obtained in a comparable arm's length transaction with a Person
which is not an Affiliate.
SECTION 9.10 LIMITATION ON CERTAIN ACCOUNTING CHANGES.
No Borrower will (a) change its Fiscal Year end in order to avoid a
Default or an Event of Default or if a Material Adverse Effect would result
therefrom or (b) make any material change in its accounting treatment and
reporting practices except as required by GAAP.
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SECTION 9.11 LIMITATION OF RESTRICTING SUBSIDIARY DIVIDENDS AND
DISTRIBUTIONS.
No Borrower will permit any Subsidiary to agree to, incur, assume or
suffer to exist any restriction, limitation or other encumbrance (by covenant or
otherwise) on the ability of such Subsidiary to make any payment to a Borrower
or any of its Subsidiaries (in the form of dividends, intercompany advances or
otherwise) or to transfer any of its properties or assets to a Borrower or any
of its Subsidiaries, except:
(a) Restrictions and limitations applicable to a Subsidiary existing
at the time such Subsidiary becomes a Subsidiary of a Borrower and not incurred
in contemplation thereof, as long as no such restriction or limitation is made
more restrictive after the date such Subsidiary becomes a Subsidiary of such
Borrower;
(b) Restrictions and limitations imposed on any Permitted
Securitization Subsidiary in connection with a Permitted Securitization
Transaction;
(c) Restrictions and limitations existing pursuant to this
Agreement; and
(d) Other restrictions and limitations that are not material either
individually or in the aggregate.
SECTION 9.12 HEDGING AGREEMENTS.
The Company will not, and will not permit any of the Subsidiaries to,
enter into any Hedging Agreement, other than non-speculative Hedging Agreements
entered into in the ordinary course of business in order to manage existing or
anticipated interest rate, foreign exchange rate or commodity price risks.
ARTICLE X
GUARANTY OF THE COMPANY
SECTION 10.1 GUARANTY OF PAYMENT.
Subject to Section 10.7 below, the Company hereby unconditionally
guarantees to each Lender and the Administrative Agent the prompt payment of the
Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This guaranty is a guaranty
of payment and not solely of collection and is a continuing guaranty and shall
apply to all Guaranteed Obligations whenever arising.
SECTION 10.2 OBLIGATIONS UNCONDITIONAL; WAIVERS.
The obligations of the Company hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement, or any other
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agreement or instrument referred to herein, to the fullest extent permitted by
Applicable Law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor. The Company agrees that this guaranty may be enforced by the Lenders
without the necessity at any time of resorting to or exhausting any security or
collateral and without the necessity at any time of having recourse to the
Notes, this Agreement or any other Loan Document or any collateral, if any,
hereafter securing the Guaranteed Obligations or otherwise and the Company
hereby waives the right to require the Lenders to proceed against a Designated
Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. In this
connection, the Company hereby waives the right of the Company to require any
holder of the Guaranteed Obligations to take action against a Designated
Borrower as provided in Official Code of Georgia Annotated ss.10-7-24. The
Company further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against a Designated Borrower or any other
guarantor of the Guaranteed Obligations for amounts paid under this guaranty
until such time as the Lenders have been paid in full, all commitments under
this Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under this Agreement. The Company
further agrees that nothing contained herein shall prevent the Lenders from
suing on the Notes, this Agreement or any other Loan Document or foreclosing its
security interest in or Lien on any collateral, if any, securing the Guaranteed
Obligations or from exercising any other rights available to it under this
Agreement, the Notes, or any other instrument of security, if any, and the
exercise of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any of the Company's obligations
hereunder; it being the purpose and intent of the Company that its obligations
hereunder shall be absolute, independent and unconditional under any and all
circumstances. Neither the Company's obligations under this guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of a Designated Borrower or by reason of
the bankruptcy or insolvency of such Borrower. The Company waives any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance of by the Administrative Agent or
any Lender upon this guaranty or acceptance of this guaranty. The Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this guaranty. All dealings between the Designated Borrowers and the
Company, on the one hand, and the Administrative Agent and the Lenders, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this guaranty.
SECTION 10.3 MODIFICATIONS.
The Company agrees that (a) all or any part of the security which
hereafter may be held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances which hereafter may be held, if any, for the Guaranteed
Obligations or the properties subject thereto; (c) the time or place of payment
of the
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Guaranteed Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (d) a Designated Borrower and any other party liable for payment under
this Agreement may be granted indulgences generally; (e) any of the provisions
of the Notes, this Agreement or any other Loan Document may be modified, amended
or waived; (f) any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any deposit balance
for the credit of a Designated Borrower or any other party liable for the
payment of the Guaranteed Obligations or liable upon any security therefor may
be released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Guaranteed Obligations, all without notice to or
further assent by the Company in its capacity as a guarantor under this Article
X, which shall remain bound thereon, notwithstanding any such exchange,
compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
SECTION 10.4 ADDITIONAL WAIVER OF RIGHTS.
The Company expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this guaranty by the Lenders and of
all Extensions of Credit to a Designated Borrower by the Lenders; (b)
presentment and demand for payment or performance of any of the Guaranteed
Obligations; (c) protest and notice of dishonor or of default (except as
specifically required in this Agreement) with respect to the Guaranteed
Obligations or with respect to any security therefor; (d) notice of the Lenders
obtaining, amending, substituting for, releasing, waiving or modifying any Lien,
if any, hereafter securing the Guaranteed Obligations, or the Lenders'
subordinating, compromising, discharging or releasing such Liens, if any; (e)
all other notices to which the Company might otherwise be entitled in connection
with the guaranty evidenced by this Article X; and (f) demand for payment under
this guaranty. Furthermore, the Company, to the fullest extent permitted by law,
hereby waives any other act or thing, or omission or delay to do any other act
or thing, which in any manner or to any extent might vary the risk of the
Company with respect to the Guaranteed Obligations or which otherwise might
operate to discharge the Company from its obligations in respect of the
Guaranteed Obligations.
SECTION 10.5 REINSTATEMENT.
The obligations of the Company under this Article X shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Company agrees that it will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
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SECTION 10.6 REMEDIES.
The Company agrees that, as between the Company, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, the Guaranteed
Obligations may be declared to be forthwith due and payable as provided in
Section 11.2 (and shall be deemed to have become automatically due and payable
in the circumstances provided in Section 11.2) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become automatically due and payable), such
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Company.
SECTION 10.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein, to the
extent the obligations of the Company shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of the Company hereunder shall be limited to the maximum
amount that is permissible under Applicable Law (whether federal or state and
including, without limitation, the Federal Bankruptcy Code (as now or
hereinafter in effect)).
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT
OBLIGATION. Any Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
any interest, fees or other amounts owing on any Loan, Note or Reimbursement
Obligation or the payment of any other Obligation, and such default shall
continue unremedied for five (5) Business Days after the
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earlier of a Responsible Officer becoming aware of such default or written
notice thereof has been given to the Company by the Administrative Agent.
(c) MISREPRESENTATION. Any representation, warranty or statement
made or deemed to be made by any Borrower or any of its Subsidiaries, if
applicable, under this Agreement, any Loan Document or any amendment hereto or
thereto or in any certificate delivered to the Administrative Agent or to any
Lender pursuant hereto and thereto, shall at any time prove to have been
incorrect or misleading in any material respect when made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. (i) Any of the
Borrowers shall default in the performance or observance of any covenant or
agreement contained in Sections 7.5(d), 8.1(i) and 8.11 and Article IX or (ii)
any of the Borrowers shall default in the performance or observance of any other
covenant or agreement contained in Article VII, and such default shall continue
unremedied for fifteen (15) days after the earlier of a Responsible Officer
becoming aware of such default or written notice thereof has been given to the
Company by the Administrative Agent.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. Any of
the Borrowers or any Subsidiary thereof, if applicable, shall default in the
performance or observance of any term, covenant, condition or agreement
contained in this Agreement (other than as specifically provided for otherwise
in this Section 11.1) or any other Loan Document and such default shall continue
for a period of thirty (30) days after the earlier of a Responsible Officer
becoming aware of such default or written notice thereof has been given to the
Company by the Administrative Agent.
(f) HEDGING AGREEMENT. Any termination payments in an amount greater
than $20,000,000 shall be due by any Borrower under any Hedging Agreement and
such amount is not paid within thirty (30) Business Days of the due date
thereof.
(g) DEBT CROSS-DEFAULT. Any of the Borrowers or any of their
Material Subsidiaries shall (i) default in the payment of any Debt (other than
Debt under this Agreement, the Notes or any Reimbursement Obligation) the
aggregate outstanding amount of which Debt is in excess of $20,000,000, beyond
the period of grace if any, provided in the instrument or agreement under which
such Debt was created, or (ii) default in the observance or performance of any
other agreement or condition relating to any Debt (other than Debt under this
Agreement, the Notes or any Reimbursement Obligation), the aggregate outstanding
amount of which Debt is in excess of $20,000,000 or contained in any instrument
or agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any such notice having been given and any applicable grace period having
expired) or (iii) breach any covenant imposed upon such Person any agreement
relating to a Permitted Securitization Transaction causing the acceleration of
the obligations thereunder or requiring the prepayment of such obligations or
termination of such securitization program prior to its stated maturity or term
and the Borrower or any Consolidated
84
Subsidiary (other than any Permitted Securitization Subsidiary) has liability in
excess of $20,000,000 under such Permitted Securitization Transaction.
(h) CHANGE IN CONTROL. An event described in clause (i), (ii) or
(iii) below shall have occurred: (i) during any period of twelve (12)
consecutive months, individuals who at the beginning of such period constituted
the board of directors of the Company (together with any new directors whose
election by such board or whose nomination for election by the shareholders of
the Company was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) and who were
entitled to vote on such matters, cease for any reason to constitute a majority
of the board of directors of the Company then in office, (ii) any person or
group of persons (within the meaning of Section 13(d) of the Securities Exchange
Act of 1934, as amended) after the Closing Date shall obtain ownership or
control in one or more series of transactions of more than 25% of the common
stock or 25% of the voting power of the Company entitled to vote in the election
of members of the board of directors of the Company or (iii) there shall have
occurred under any indenture or other instrument evidencing any Debt in excess
of $20,000,000 any "change in control" (as defined in such indenture or other
evidence of Debt) obligating the Company to repurchase, redeem or repay all or
any part of the Debt provided for therein (any such event, a "CHANGE IN
CONTROL").
(i) VOLUNTARY BANKRUPTCY PROCEEDING. Any Borrower or any Material
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of a substantial part of
its property, domestic or foreign, (v) admit in writing its inability to pay its
debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
(j) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against any Borrower or any Material Subsidiary thereof in
any court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition for adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for any Borrower or any Material
Subsidiary thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws) shall be
entered.
(k) ENFORCEMENT. A creditor or an encumbrance (other than a judgment
or order of the type referred to in clause (l) of this Section 11.1) attaches or
takes possession of, or a distress, execution, sequestration or other process is
levied or enforced upon or sued out against, any of
85
the undertakings and assets of any Borrower or any Subsidiary thereof having a
value exceeding $10,000,000 and (if capable of discharge) such possession is not
terminated or such attachment or process is not satisfied, removed or discharge
within thirty (30) days.
(l) JUDGMENT. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments or orders at any time
undischarged and unstayed as provided for in this paragraph (exclusive of
amounts covered by insurance provided by reputable insurers) to exceed
$10,000,000 shall be entered against any Borrower or any Subsidiary thereof by
any court and such judgment or order shall continue without discharge or stay
for a period of thirty (30) days.
(m) GUARANTY. At any time after the execution and delivery thereof,
the guaranty given by the Company hereunder or any provision thereof shall cease
to be in full force or effect as to the Company, or the Company or any Person
acting by or on behalf of the Company shall deny or disaffirm the Company's
obligations under such guaranty.
(n) ERISA. An event described in each and every clause (i), (ii) and
(iii) below shall have occurred: (i) any Pension Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof under
Section 412 of the Code or Section 302 of ERISA or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or Section 303 or 304 of ERISA, a Reportable Event shall have occurred,
a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Pension
Plan subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62 , .63, .64, .65, .66,
..67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Pension Plan within the following thirty (30) days, any
Pension Plan which is subject to Title IV of ERISA shall have had or is likely
to have a trustee appointed to administer such Pension Plan, any Pension Plan
which is subject to Title IV of ERISA is, shall have been or is likely to be
terminated or to be the subject of termination proceedings under ERISA, any
Pension Plan shall have an Unfunded Current Liability, a contribution required
to be made with respect to a Pension Plan or a Foreign Pension Plan has not been
timely made, the Borrowers or any of their Subsidiaries or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a Pension
Plan under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account
of a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrowers or
any of their Subsidiaries has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Pension Plans or
Foreign Pension Plans; (ii) there shall result from any such event or events the
imposition of a lien, the granting of a security interest or a liability or a
material risk of such a lien being imposed, such security interest being granted
or such liability being incurred, and (iii) such lien, security interest or
liability, individually, and/or in the aggregate, has had, or could reasonably
be expected to have, a Material Adverse Effect.
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(o) BORROWER JOINDER AGREEMENT. Any default or breach shall occur
under any Borrower Joinder Agreement or the Borrower Joinder Agreement given by
any Designated Borrower shall cease to be in full force or effect as to a
Designated Borrower, or a Designated Borrower itself or through the Company or
any Person acting by or on behalf of the Designated Borrower shall deny or
disaffirm the Designated Borrower's obligations under such Borrower Joinder
Agreement or this Agreement.
SECTION 11.2 REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrowers:
(a) ACCELERATION: TERMINATION OF FACILITIES. Declare the principal
of and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) and all other Obligations, to be forthwith due
and payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any right of the
Borrowers to request borrowings or Letters of Credit thereunder; PROVIDED, that
upon the occurrence of an Event of Default specified in Section 11.1(i) or (j)
with respect to the Borrowers, the Credit Facility shall be automatically
terminated and all Obligations shall automatically become due and payable.
(b) LETTERS OF CREDIT. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to deposit or cause to be deposited in a cash collateral account opened by
the Administrative Agent (in Dollars) an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay the other Obligations. After all such
Letters of Credit shall have expired or been fully drawn upon, the Reimbursement
Obligation shall have been satisfied and all other Obligations shall have been
paid in full, the balance, if any, in such cash collateral account shall be
promptly returned to the Borrowers.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Obligations.
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SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC.
The enumeration of the rights and remedies of the Administrative Agent
and the Lenders set forth in this Agreement is not intended to be exhaustive and
the exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT OF ADMINISTRATIVE AGENT.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder 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 of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions set
forth in this Article shall apply to any such sub-agent and 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.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Lender with
respect thereto; provided, that the Issuing Lender shall have all the benefits
and immunities (i) provided to the Administrative Agent in this Article XII with
respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article XII included the Issuing Lender with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to the Issuing
Lender.
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SECTION 12.2 NATURE OF DUTIES OF ADMINISTRATIVE AGENT.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or an Event of 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 those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 13.1), and (c) except as expressly set forth in the Loan
Documents, 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
Company or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable (provided that the Company reserves any
and all rights and claims against any Lender, including the Administrative Agent
in its capacity as a Lender) 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 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Company or any 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 any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
SECTION 12.3 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Each of the Lenders, the Swingline Lender and the Issuing 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 of the Lenders, the Swingline Lender
and the Issuing 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 has deemed appropriate, continue to make its own
decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 12.4 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.
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If the Administrative Agent shall request instructions from the Required
Lenders with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person (provided that the Company reserves any and all
rights and claims against any Lender, including the Administrative Agent in its
capacity as a Lender) by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 12.5 RELIANCE BY 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, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Company), independent public 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 such counsel, accountants or experts.
SECTION 12.6 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The bank serving as the Administrative Agent shall have the same rights
and powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Company or any Subsidiary or Affiliate of the Company
as if it were not the Administrative Agent hereunder.
SECTION 12.7 SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Company provided that no Event of Default shall
exist at such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Lender,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any
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state thereof or a bank which maintains an office in the United States, having a
combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon 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 under this Agreement
and the other Loan Documents. If within 45 days after written notice is given of
the retiring Administrative Agent's resignation under this Section 12.7 no
successor Administrative Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article XII shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 12.8 ADDITIONAL AGENCIES; NO DUTIES IMPOSED UPON SYNDICATION
AGENTS OR CO-DOCUMENTATION AGENTS.
(a) The Administrative Agent shall have the right from time to time
to designate one or more Syndication Agents and Co-Documentation Agents. Upon
any such designation, the Administrative Agent shall have the right to replace
the cover page to this Agreement to reflect the addition of such Person as
Syndication Agent and Co-Documentation Agent, as the case may be.
(b) None of the Persons designated as a "Syndication Agent" or
"Co-Documentation Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any of the other Loan Documents
other than, if such Person is a Lender, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons designated as a "Syndication
Agent" or "Co-Documentation Agent" shall have or be deemed to have any fiduciary
duty to or fiduciary relationship with any Lender. In addition to the agreements
set forth in SECTION 12.8, each of the Lenders acknowledges that it has not
relied, and will not rely, on any of the Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
SECTION 12.9 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
as such and (to the extent not reimbursed by the Borrowers and without limiting
the obligation of the Borrowers to do so), ratably according to the respective
amounts of their Revolving Credit Commitment Percentages from and against any
and all liabilities, obligations, losses, damages, penalties,
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actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes or any Reimbursement Obligation) be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or the other Loan Documents, or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent they result from the
Administrative Agent's bad faith, gross negligence or willful misconduct. The
agreements in this Section 12.7 shall survive the payment of the Notes, any
Reimbursement Obligation and all other amounts payable hereunder and the
termination of this Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it
at the following addresses, or any other address as to which all the other
parties are notified in writing.
If the Company or any Designated Borrower:
Equifax Inc.
0000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Vice President and
Treasurer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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If the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
With a copy to: SunTrust Capital Markets, Inc.
c/o Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Xxxxxx Xxxxxx
Telecopy Number: (000) 000-0000
If the Issuing Lender: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail Code 0000, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy Number: (000) 000-0000
If the Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X.X./0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
If any other Lender: the address set forth under such Lender's name
on the signature pages hereof
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Company and the Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Loans will be
disbursed.
SECTION 13.2 EXPENSES, INDEMNITY.
The Borrowers jointly and severally agree to (a) pay all reasonable and
actual out-of-pocket expenses of the Administrative Agent in connection with (i)
the preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation the reasonable out-of-pocket syndication and due diligence expenses
and reasonable and actual fees and disbursements of counsel for the
Administrative Agent (including the allocated cost of internal counsel) and (ii)
the preparation, negotiation, execution and delivery of any waiver, amendment or
consent by the Administrative Agent, the Arrangers or the Lenders relating to
this Agreement or any other Loan Document, including without limitation
reasonable fees and disbursements of counsel for the Administrative
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Agent (including the allocated cost of internal counsel), (b) pay all reasonable
and actual fees and disbursements of counsel to the Administrative Agent
incurred in connection with the administration of the Credit Facility, (c) pay
all reasonable out of pocket expenses of the Administrative Agent, the Arrangers
and each Lender actually incurred in connection with the enforcement of any
rights and remedies of the Administrative Agent, the Arrangers and the Lenders
under the Credit Facility, including, to the extent reasonable under the
circumstances, consulting with accountants, attorneys and other Persons
concerning the nature, scope or value of any right or remedy of the
Administrative Agent, the Arrangers or any Lender hereunder or under any other
Loan Document or any factual matters in connection therewith, which expenses
shall include without limitation the reasonable fees and disbursements of such
Persons (including the allocated cost of internal counsel), and (c) defend,
indemnify and hold harmless the Administrative Agent, the Arrangers, the Issuing
Lender, the Swingline Lender, and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any losses, penalties, fines, liabilities, settlements, damages, costs
and expenses, suffered by any such Person in connection with any claim,
investigation, litigation or other proceeding, including claims brought by the
Company, any Borrower or any of their Subsidiaries or Affiliates against the
Administrative Agent, the Issuing Lender, the Swingline Lender, the Arrangers or
any Lender (whether or not the Administrative Agent, the Arrangers, the Issuing
Lender, the Swingline Lender or any Lender is a party thereto) and the
prosecution and defense thereof, arising out of or in any way connected with
this Agreement, the Credit Facility, any other Loan Document, the Loans or the
Notes or, subject to the limitations in Section 13.21, as a result of the breach
of any of the Borrowers' obligations hereunder, including without limitation
reasonable and actual attorney's fees (including the allocated cost of internal
counsel), consultant's fees and settlement costs; PROVIDED, HOWEVER, that the
Borrowers shall not be obligated to indemnify any such indemnified party for any
such amounts to the extent that a court having competent jurisdiction shall have
determined by a final judgment (not subject to further appeal) that such amounts
resulted from (i) a breach of the loan documents by such indemnified party or
(ii) the gross negligence or willful misconduct on the part of the indemnified
party.
SECTION 13.3 SET-OFF.
In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, upon and after the occurrence
of any Event of Default and during the continuance thereof, the Lenders and any
assignee or participant of a Lender in accordance with Section 13.9 are hereby
authorized by the Borrowers at any time or from time to time, without notice to
the Borrowers or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply (including, without
limitation, the right to combine currencies) any and all deposits (general or
special, time or demand, including, but not limited to, indebtedness evidenced
by certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the accounts of the respective Borrowers
against and on account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of the other Loan
Documents or (b) the Administrative Agent shall
94
have declared any or all of the Obligations to be due and payable as permitted
by Section 11.2 and although such Obligations shall be contingent or unmatured.
SECTION 13.4 GOVERNING LAW.
This Agreement, the Notes and the other Loan Documents, unless otherwise
expressly set forth therein, shall be governed by, construed and enforced in
accordance with the laws of the State of Georgia, without giving effect to the
conflict of law principles thereof.
SECTION 13.5 CONSENT TO JURISDICTION.
Each of the parties hereto hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in Xxxxxx County, Georgia,
in any action, claim or other proceeding arising out of any dispute in
connection with this Agreement, the Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. Each of the parties hereto hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any other party hereto in connection with this Agreement,
the Notes or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1. Each Designated
Borrower hereby appoints the Company as its agent in the United States for
service of process. Nothing in this Section 13.5 shall affect the right of any
of the parties hereto to serve legal process in any other manner permitted by
Applicable Law or affect the right of any of the parties hereto to bring any
action or proceeding against any other party hereto or its properties in the
courts of any other jurisdictions.
SECTION 13.6 WAIVER OF JURY TRIAL: LIMITATION ON DAMAGES.
(A) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
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(B) CONSEQUENTIAL AND OTHER DAMAGES. NEITHER THE ADMINISTRATIVE
AGENT, ANY LENDER, THE ARRANGERS, THE ISSUING LENDER OR THE SWINGLINE LENDER OR
ANY OF THEIR AFFILIATES OR AGENTS SHALL BE RESPONSIBLE OR LIABLE TO THE COMPANY,
ANY BORROWER OR ANY THEIR SUBSIDIARIES OR AFFILIATES FOR ANY PUNITIVE, EXEMPLARY
OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF THE CREDIT FACILITY
OR ANY OF THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED BY THE CREDIT
FACILITY.
SECTION 13.7 REVERSAL OF PAYMENTS.
To the extent any Borrower makes a payment or payments to the
Administrative Agent for the ratable benefit of the Lenders or the
Administrative Agent receives any payment or proceeds of the collateral which
payments or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.8 ACCOUNTING MATTERS.
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 Company notifies the
Administrative Agent that the Borrowers request 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 Company 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
there of, 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 therewith.
SECTION 13.9 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(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 no Borrower may 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 a 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 Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
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(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Aggregate Revolving Credit Commitment and the Loans (including
for purposes of this subsection (b), participations in L/C Obligations and in
Swingline Loans) at the time owing to it); PROVIDED that (i) except in the case
of an assignment of the entire remaining amount of the assigning Lender's
Aggregate Revolving Credit Commitment and the Loans at the time owing to it or
in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Aggregate
Revolving Credit Commitment (which for this purpose includes Loans outstanding
thereunder) 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
Administrative Agent and, so long as no Default or Event of Default has occurred
and is continuing, the Company otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) 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 with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to rights in respect of
outstanding Swingline Loans, and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance
agreement in substantially the form of EXHIBIT H (an "ASSIGNMENT AND
ACCEPTANCE"), together with a processing and recordation fee of $1,000. Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the Eligible 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 4.8, 4.9, 4.10, 4.11, 13.2 and 13.14). Upon request, the
Borrowers (at their expense) shall execute and deliver new or replacement Notes
to the assigning Lender and the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection 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
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office 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 Revolving Credit
Commitments (and components thereof) of, and principal amount of the Loans and
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the "REGISTER"). The entries in the Register shall be conclusive absent
manifest error, and the Borrowers, 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
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
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(d) Any Lender may, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell participations to one or more banks
or other entities (a "PARTICIPANT") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swingline 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 Borrowers, 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, waiver or other modification that would (i) postpone any date
upon which any payment of money is scheduled to be paid to such Participant,
(ii) reduce the principal, interest, fees or other amounts payable to such
Participant (other than as a result of (x) waiving the applicability of any
post-default increases in interest rates or (y) an amendment approved by the
Required Lenders as set forth in the definition of "Applicable Percentage"
following the withdrawal by S&P and/or Xxxxx'x of an Applicable Rating), (iii)
permit any assignment (other than as specifically contemplated in this
Agreement) of any of the Borrowers' rights and obligations hereunder or (iv)
release the Borrower from its obligations hereunder. Subject to subsection (e)
of this Section, the Borrowers agree that each Participant shall be entitled to
the benefits of Sections 4.8, 4.9, 4.10 and 4.11 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 13.3 as though it were a Lender, PROVIDED
such Participant agrees to be subject to SECTION 4.6 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Sections 4.8, 4.9, 4.10 or 4.11 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 made
with the Company'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 4.11
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 4.11(e) as though it were a Foreign Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; PROVIDED that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the Company to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum
98
assignment threshold specified in clause (i) of the proviso to the first
sentence of Section 13.9(b), the Company shall be deemed to have given its
consent five Business Days after the date notice thereof has been delivered by
the assigning Lender (through the Administrative Agent) unless such consent is
expressly refused by a Borrower prior to such fifth Business Day.
(h) Notwithstanding anything to the contrary contained herein, if at
any time SunTrust assigns all of its Revolving Credit Commitment and Loans
pursuant to subsection (b) above, SunTrust may, (i) upon thirty (30) days'
written notice to the Company and the Lenders, resign as Issuing Lender and/or
(ii) upon five (5) Business Days' written notice to the Company, terminate the
Swingline Maximum. In the event of any such resignation as Issuing Lender or
termination of the Swingline Maximum, the Company shall be entitled to appoint
from among the Lenders a successor Issuing Lender and/or Swingline Lender
hereunder; PROVIDED, HOWEVER, that no failure by the Company to appoint any such
successor shall affect the resignation of SunTrust as Issuing Lender or the
termination of the Swingline Maximum, as the case may be. SunTrust shall retain
all the rights and obligations of the Issuing Lender hereunder with respect to
all Letters of Credit outstanding as of the effective date of its resignation as
Issuing Lender and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund participations pursuant
to Section 3.4. If SunTrust terminates the Swingline Maximum, it shall retain
all the rights of the Swingline Lender provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such
termination, including the right to require the Lenders to make Base Rate Loans
or fund participations in outstanding Swingline Loans pursuant to Section
2.5(b).
(i) DESIGNATION OF SPVS.
(i) Notwithstanding anything to the contrary contained
herein, any Lender (a "DESIGNATING Lender") may grant to one or more
special purpose funding vehicles (each, an "SPV"), identified as such in
writing from time to time by the Designating Lender to the
Administrative Agent and the Company, the option to provide to the
Company all or any part of any Loan that such Designating Lender would
otherwise be obligated to make to the Company pursuant to this
Agreement; provided that (A) nothing herein shall constitute a
commitment by any SPV to make any Loan, (B) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of
such Loan, the Designating Lender shall be obligated to make such Loan
pursuant to the terms hereof, (C) the Designating Lender shall remain
liable for any indemnity or other payment obligation with respect to its
Commitments hereunder and (D) each such SPV would satisfy the
requirements of Section 4.11 if such SPV was a Lender hereunder. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent as a Loan made by, and as if such
Loan were made by, such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV
shall have all the rights that a Lender making such Loans or portion
thereof would have had under this Agreement; provided, however that each
SPV shall have granted to its Designating Lender an irrevocable power of
attorney, to deliver and receive all communications and notices under
this Agreement (and any related documents), including, without
limitation, any Notice of Revolving Credit Borrowing and any Notice of
Conversion/Continuation,
99
and to exercise on such SPV's behalf, all of such SPV's voting rights
under this Agreement. No additional Note shall be required to evidence
the Loans or portion thereof made by an SPV; and the related Designating
Lender shall be deemed to hold its Note as agent for such SPV to the
extent of the Loans or portion thereof funded by such SPV. In addition,
any payments for the account of any SPV shall be paid to its Designating
Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a
Lender would otherwise be liable for so long as, and to the extent, the
Designating Lender provides such indemnity or makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of
all outstanding prior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States
or any State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 13.9 or otherwise in this Agreement, any SPV
may (A) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Loans to
the Designating Lender (or to any other SPV of such Designating Lender)
or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding or
maintenance of Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancements to such SPV. This Section 13.9 may not be
amended without the written consent of any Designating Lender affected
thereby.
SECTION 13.10 CONFIDENTIALITY.
Each of the Administrative Agent and 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), solely for use in connection with this Agreement; (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 the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible Assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any direct or indirect contractual counterparty or prospective counterparty
(or such contractual counterparty's or prospective counterparty's
100
professional advisor) to any credit derivative transaction relating to
obligations of the Borrowers; (g) with the consent of the Borrowers; (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 Borrowers;
or (i) to the National Association of Insurance Commissioners or any other
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's or its Affiliates' investment portfolio
in connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "INFORMATION" means all confidential
information received from the Borrowers 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 Borrowers. 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 13.11 AMENDMENTS, WAIVERS AND CONSENTS.
Except as set forth below, any term, covenant, agreement or condition of
this Agreement or any of the other Loan Documents may be amended or waived by
the Lenders and any consent may be given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and delivered
to the Administrative Agent and, in the case of an amendment, signed by the
Borrowers; PROVIDED, that no amendment, waiver or consent shall, without the
consent of each Lender affected thereby, (a) increase the amount of any Lender's
Commitment or extend the time of the obligation of the Lenders to make Loans or
issue or participate in Letters of Credit, (b) extend the originally scheduled
time or times of payment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest or fees on any Loan or
Reimbursement Obligation (except as expressly contemplated by Sections 2.7 or
2.8), (c) reduce the rate of interest or fees payable on any Loan or
Reimbursement Obligation (other than as a result of (x) waiving the
applicability of any post-default increases in interest rates or (y) an
amendment approved by the Required Lenders as set forth in the definition of
"Applicable Percentage" following the withdrawal by S&P and/or Xxxxx'x of an
Applicable Rating) (d) reduce the principal amount of any Loan or Reimbursement
Obligation, (e) permit any assignment (other than as specifically permitted or
contemplated in this Agreement) of any of the Borrowers' rights and obligations
hereunder, (f) release the Company from its guaranty hereunder or (g) amend the
provisions of this Section 13.11 or the percentage set forth in the definition
of Required Lenders. In addition, no amendment, waiver or consent to the
provisions of (i) Article XII shall be made without the written consent of the
Administrative Agent, (ii) Section 2.6 shall be made without the consent of the
Swingline Lender and (iii) Article III shall be made without the written consent
of each Issuing Lender.
Notwithstanding the fact that the consent of all the Lenders is required
in certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the
101
provisions of Section 1126(c) of the Federal Bankruptcy Code (as now or
hereafter in effect) supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders may consent to allow a Borrower to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
SECTION 13.12 PERFORMANCE OF DUTIES.
The Borrowers' obligations under this Agreement and each of the Loan
Documents shall be performed by the Borrowers at their sole cost and expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST.
All powers of attorney and other authorizations granted to the Lenders,
the Administrative Agent and any Persons designated by the Administrative Agent
or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable
so long as any of the Obligations remain unpaid or unsatisfied or the Credit
Facility has not been terminated.
SECTION 13.14 SURVIVAL OF INDEMNITIES.
Notwithstanding any termination of this Agreement, the indemnities to
which the Administrative Agent, the Arrangers and the Lenders are entitled under
the provisions of this Article XIII and any other provision of this Agreement
and the Loan Documents shall continue in full force and effect and shall protect
the Administrative Agent, the Arrangers and the Lenders against events arising
after such termination as well as before, including after the Borrowers'
acceptance of the Lenders' commitments for the Credit Facility, notwithstanding
any failure of such facility to close.
SECTION 13.15 TITLES AND CAPTIONS.
Titles and captions of Articles, Sections and subsections in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement.
SECTION 13.16 SEVERABILITY OF PROVISIONS.
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining provisions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
102
SECTION 13.17 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns, and all of which taken together shall
constitute one and the same agreement. Delivery of any 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 13.18 TERM OF AGREEMENT.
(a) This Agreement shall become effective at such time, on or after
the Closing Date, that the conditions precedent set forth in Section 5.1 have
been satisfied or waived and when it shall have been executed by each of the
Borrowers and the Administrative Agent, and the Administrative Agent shall have
received copies of the signature pages hereto (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender (including the Issuing
Lender), and thereafter this Agreement shall be binding upon and inure to the
benefit of each Borrower, each Lender (including the Issuing Lender) and the
Administrative Agent, together with their permitted successors and assigns.
(b) This Agreement shall remain in effect from the Closing Date
through and including the date upon which all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit
have been terminated or expired and the Aggregate Revolving Credit Commitment
has been terminated. No termination of this Agreement shall affect the rights
and obligations of the parties hereto arising prior to such termination.
SECTION 13.19 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT EFFECT
OF COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Article VIII and Article IX hereof shall be given independent
effect.
SECTION 13.20 JUDGMENT CURRENCY.
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or under any other Loan Document in one currency
into another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of any Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the
103
other Loan Documents shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "AGREEMENT
CURRENCY"), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Lender of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent or such Lender may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent or such Lender in
the Agreement Currency, the Borrowers jointly and severally agree, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent or such Lender
in such currency, the Administrative Agent or such Lender agrees to return the
amount of any excess to the Borrowers (or to any other Person who may be
entitled thereto under applicable law).
SECTION 13.21 SEVERAL OBLIGATIONS OF THE BORROWERS.
Except as otherwise expressly set forth herein, the obligations of each
of the Borrowers (other than the Company) under this Agreement and the Loan
Documents are several and not joint and several obligations. Without limiting
the generality of the preceding sentence, no Borrower (other than the Company)
shall be responsible for or be deemed to have guaranteed the obligations of any
other Borrower hereunder or under any of the other Loan Documents.
SECTION 13.22 SUBORDINATION OF COMPANY'S CLAIMS AGAINST THE DESIGNATED
BORROWERS.
The Borrowers hereby agree that any claims of the Company against a
Designated Borrower or any rights the Company has to be indemnified by a
Designated Borrower shall be subordinate in right of payment to the payment and
satisfaction in full of the Guaranteed Obligations to the Administrative Agent
and the Lenders under this Agreement and the other Loan Documents.
SECTION 13.23 PATRIOT ACT NOTIFICATION.
The following notification is provided to the Company pursuant to
Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. When the Company opens
an account, the Lenders will ask for Company's name, tax
104
identification number, business address, and other information that will allow
the Lenders to identify the Company. The Lenders may also ask to see Company's
legal organizational documents or other identifying documents.
[Signature pages to follow]
105
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
COMPANY: EQUIFAX INC.
-------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DESIGNATED BORROWERS:
--------------------
EQUIFAX PLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LENDERS: SUNTRUST BANK
------- Individually and as Administrative
Agent, as Issuing Lender and as
Swingline Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A.
as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION
as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE ROYAL BANK OF SCOTLAND PLC
as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BNP PARIBAS
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
REGIONS BANK
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BEAR XXXXXXX CORPORATE LENDING INC.
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MIZUHO CORPORATE BANK, LTD.
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE NORTHERN TRUST COMPANY
as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SCHEDULE 1.1(A)
COMMITMENTS AS OF CLOSING DATE
------------------------------------ ---------------------- ------------------------
AGGREGATE
AGGREGATE REVOLVING REVOLVING CREDIT
CREDIT COMMITMENT COMMITMENT
LENDER PERCENTAGE
------------------------------------ ---------------------- ------------------------
SunTrust Bank $92,500,000.00 18.5000%
Bank of America, N.A. $92,500,000.00 18.5000%
Wachovia Bank, National $70,000,000.00 14.0000%
The Royal Bank of Scotland plc $47,500,000.00 9.5000%
The Bank of New York $47,500,000.00 9.5000%
BNP Paribas $30,000,000.00 6.0000%
Regions Bank $30,000,000.00 6.0000%
Xxxxx Fargo Bank, National $30,000,000.00 6.0000%
Association
Bear Xxxxxxx Corporate
Lending Inc. $20,000,000.00 4.0000%
Mizuho Corporate Bank, Ltd. $20,000,000.00 4.0000%
The Northern Trust Company $20,000,000.00 4.0000%
TOTALS: $500,000,000.00 100.0000%
Schedule 1.1(a), Page 1
SCHEDULE 4.1(F)
CALCULATION OF MLA COST
The MLA Cost for an Offshore Currency Loan is calculated by each Lender
(and rounded upward, if necessary, to four decimal places) as the rate resulting
from the application of the relevant formula set forth below:
(a) In relation to a Loan denominated in Sterling:
XL + S(L - D) + (F X 0.01) % per annum = MLA Cost
-------------------------
100 -(X+S)
(b) In relation to any other Loan denominated in an Offshore Currency:
F X 0.01 % per annum
--------
300
where on the day of application of the formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which the relevant Lender is
required under or pursuant to the Act to maintain cash ratio
deposits with the Bank of England;
L is the percentage rate per annum at which deposits for the
relevant period and in the relevant currency are offered by
the relevant Lender to leading banks in the London Interbank
Market at or about 11:00 a.m. (London time) on that day.
F is the rate of charge payable by the relevant Lender to the
FSA pursuant to paragraph 2.02 or 2.03 (as the case may be) of
the Fees Regulations (but where for this purpose, the figure
at paragraph 2.02 b or 2.03 b (as the case may be) shall be
deemed to be zero) and expressed in pounds per (pound)1
million of the Fee Base of the relevant Lender.
S is the level of interest-bearing Special Deposits, expressed
as a percentage of Eligible Liabilities, which the relevant
Lender is required to maintain by the Bank of England (or
other United Kingdom governmental authorities or agencies);
and
D is the percentage rate per annum payable by the Bank of
England to the relevant Lender on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall
be counted as zero.)
The MLA Cost attributable to a Loan or other sum denominated in an
Offshore Currency for any period shall be calculated at or about 11:00
a.m. (London time) on the first day of such period for the duration of
such period.
The determination of the MLA Cost in relation to any period shall in
the absence of manifest error, be conclusive and binding on the parties
hereto.
Schedule 4.1(f), Page 1
If there is any change in circumstance (including the imposition of
alternative or additional requirements) which in the reasonable opinion
of the Administrative Agent renders or will render the above formula
(or any element thereof, or any defined term used therein)
inappropriate or inapplicable, the Administrative Agent, following
notice to the Company, shall be entitled to vary the same. Any such
variation shall, in the absence of manifest error, be conclusive and
binding on the parties and shall apply from the date specified in such
notice.
For the purposes of this Schedule:
The terms Eligible Liabilities and Special Deposits shall bear
the meanings ascribed to them under or pursuant to the Act or
by the Bank of England (as may be appropriate), on the day of
the application of the formula.
Fee Base has the meaning ascribed to it for the purposes of,
and shall be calculated in accordance with, the Fees
Regulations.
Fees Regulations means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in
force, relating to the payment of fees for banking
supervision in respect of periods subsequent to 31
March 1999.
Any reference to a provision of any statute, directive, order or
regulation herein is a reference to that provision as amended or
reenacted from time to time.
[remainder of page intentionally left blank]
Schedule 4.1(f), Page 2
SCHEDULE 6.1(B)
SUBSIDIARIES OF THE COMPANY
State or
Country of
NAME OF SUBSIDIARY Incorporation
------------------ -------------
3032423 Nova Scotia Company (9)(14) Nova Scotia
3651754 Canada Inc.(10) Canada
Acrofax Inc. Quebec
Alphafax Properties Limited Partnership Georgia
CD Holdings, Inc.(17) Georgia
Clearing de Informes S.A.(7) Uruguay
Compliance Data Center, Inc. Georgia
Computer Ventures, Inc.(1) Delaware
Credit Bureau Services, Inc.(1) Washington
CXI Acquisition Corp. Delaware
Dicom S.A.(8) Chile
Equifax Canada Inc.(2) Canada
Equifax Capital Management, Inc.(1) Georgia
Equifax City Directory, Inc. Georgia
Equifax Commercial Services Ltd.(4) Ireland
Equifax Consumer Services, Inc. Georgia
Equifax de Chile, S.A.(7) Chile
Equifax Decision Solutions, Inc. Arizona
Equifax Decision Systems, B.V. The Netherlands
Equifax do Brasil Holdings Ltda.(7) Brazil
Equifax do Brasil Ltda.(7)(20) Brazil
Equifax Direct Marketing Solutions LLC Georgia
Equifax eMarketing Solutions, Inc. Florida
Equifax Europe LLC Georgia
Equifax Financial Services(10)(16) Ontario
Equifax Finance (1), Inc.(1) Georgia
Equifax Finance (2), Inc.(1) Georgia
Equifax Infolink Limited (f/k/a Equifax Infolink Plc)(6) United Kingdom
Equifax Information Services LLC Georgia
Equifax Information Services Puerto Rico, Inc. Georgia
Equifax Information Technology, Inc. Georgia
Equifax Investments (South America) LLC(7) Georgia
Equifax (Isle of Man) Ltd.(4) Isle of Man
Equifax Italy Holdings, Srl(12) Italy
Equifax Italy, Srl(13) Italy
Equifax Luxembourg (No. 2) S.A.R.L. Luxembourg
Equifax Luxembourg S.A. Luxembourg
Equifx Plc(4)(15) England
Equifax Real Estate Mortgage Solutions, LLC(1) Georgia
Equifax Receivables Finance LLC(22) Delaware
Equifax Secure U.K. Ltd.(1) United Kingdom
Equifax South America LLC Georgia
Equifax Technology Solutions LLC Georgia
Equifax U.K. Finance (No. 2)(11) England
Equifax Ventures, Inc. Georgia
High Integrity Systems LLC California
Imperitek Corporation Georgia
Light Signatures, Inc. California
NAV Acquisition Inc. (18) Georgia
Privista Inc. Georgia
Propago S.A.(8) Chile
The Infocheck Group Ltd.(5) England
UAPT-Infolink Ltd.(5) United Kingdom
Verdad Informatica de Costa Rica, S.A.(3) Costa Rica
Schedule 6.1(b), Page 1
Equifax Finance (1), Inc.(1) Georgia
Equifax Finance (2), Inc.(1) Georgia
Equifax Infolink Limited (f/k/a Equifax Infolink Plc)(6) United Kingdom
Equifax Information Services LLC Georgia
Equifax Information Services Puerto Rico, Inc. Georgia
Equifax Information Technology, Inc. Georgia
Equifax Investments (South America) LLC(7) Georgia
Equifax (Isle of Man) Ltd.(4) Isle of Man
Equifax Italy Holdings, Srl(12) Italy
Equifax Italy, Srl(13) Italy
Equifax Luxembourg (No. 2) S.A.R.L. Luxembourg
Equifax Luxembourg S.A. Luxembourg
Equifx Plc(4)(15) England
Equifax Real Estate Mortgage Solutions, LLC(1) Georgia
Equifax Receivables Finance LLC(22) Delaware
Equifax Secure U.K. Ltd.(1) United Kingdom
Equifax South America LLC Georgia
Equifax Technology Solutions LLC Georgia
Equifax U.K. Finance (No. 2)(11) England
Equifax Ventures, Inc. Georgia
High Integrity Systems LLC California
Imperitek Corporation Georgia
Light Signatures, Inc. California
NAV Acquisition Inc. (18) Georgia
Privista Inc. Georgia
Propago S.A.(8) Chile
The Infocheck Group Ltd.(5) England
UAPT-Infolink Ltd.(5) United Kingdom
Verdad Informatica de Costa Rica, S.A.(3) Costa Rica
Schedule 6.1(b), Page 2
The Company's subsidiary Equifax Information Services LLC owns 49% of the Class
B stock and 100% of the Class C stock of RMA Holdings LLC (Delaware).
The Company's subsidiary Equifax Europe LLC owns 85% of the stock of Equifax
Iberica, S.L. (Spain), which owns 95% of the stock of ASNEF/Equifax Servicios de
Informacion Sobre Solvencia y Credito S.L. (Spain); 100% of the stock of Dicodi,
S.A. (Spain); 100% of the stock of Informacion Tecnica Del Credito S.L. (Spain);
and 50% of the stock of Credinformacoes, Informacoes de Credito, LDA (Portugal),
along with Equifax Decision Systems, B.V., wholly-owned subsidiary of Equifax
Inc., which owns 25%.
The Company's subsidiary Equifax South America LLC owns 79% of the stock of
Organizacion Veraz, S.A. (Argentina).
The Company's subsidiary Equifax South America LLC owns 100% of the stock of
Equifax de Chile S.A. which owns 100% of the stock of Propago S.A. and 100% of
the stock of Dicom S.A., which owns 49% of the stock of Dicom of CentroAmerica
(El Salvador), along with Equifax South America LLC, wholly-owned subsidiary of
Equifax Inc., which owns 2%, and 16% of the stock of InfoCorp S.A. (Peru), along
with Dicom S.A. which owns 35%.
The Company's subsidiary Equifax Information Services LLC owns 40% of FT/E
Mortgage Soltuions, LLC (Delaware) and 100% of Equifax Real Estate Mortgage
Solutions, LLC (Georgia) which owns 39.6%, along with FT/E, which owns 1% of
Total Credit Services, L.P. (Delaware).
The Company's subsidiary Equifax South America LLC owns 15% of the stock of
Infocom Honduras S.A. de C.B. (Honduras).
(1)Subsidiary of Equifax Information Services LLC
(2)Subsidiary of Acrofax Inc.
(3)Subsidiary of Equifax Direct Marketing Solutions LLC
(4)Subsidiary of Equifax Europe LLC
(5)Subsidiary of Equifax Plc
(6)Subsidiary of UAPT-Infolink Ltd.
(7)Subsidiary of Equifax South America LLC
(8)Subsidiary of Equifax de Chile, S.A.
(9)Subsidiary of Equifax Finance (1), Inc.
(10)Subsidiary of 3032423 Nova Scotia Company
(11)Subsidiary of Equifax Luxembourg (No. 2) S.A.R.L.
(12)Subsidiary of Equifax Luxembourg S.A.
(13)Subsidiary of Equifax Italy Holdings, Srl.
Schedule 6.1(b), Page 3
(14)Subsidiary of Equifax Finance (2), Inc.
(15)Subsidiary of Equifax (Isle of Man) Ltd.
(16)Subsidiary of 3651754 Canada Inc.
(17)Subsidiary of Equifax Consumer Services, Inc.
(18)Subsidiary of Equifax eMarketing Solutions, Inc.
(19)Subsidiary of Equifax Capital Management, Inc.
(20)Subsidiary of Equifax do Brazil Holdings Ltd.
Schedule 6.1(b), Page 4
SCHEDULE 6.1(H)
ENVIRONMENTAL MATTERS
The following disclosure is being made for informational purposes only
and the Company does not believe that the matter described below on this
schedule could reasonably be expected to have a Material Adverse Effect:
The Company's former headquarters building located in Atlanta, Georgia,
contains asbestos. Conditions at this building have been inspected and found to
be non-hazardous and an abatement plan has been adopted for the removal and/or
containment of such material.
Schedule 6.1(h), Page 1
SCHEDULE 6.1(P)
DEBT AND SUPPORT OBLIGATIONS OF THE BORROWERS AND SUBSIDIARIES
AS OF THE CLOSING DATE
1. All Debt and Support Obligations of the Company, as a Borrower and
Guarantor, and Equifax PLC, as Borrower, under this Credit Agreement and all
related Loan Documents.
2. $400 million in aggregate principal amount of Debt of the Company
under that certain Indenture dated as of June 29, 1998 by Equifax Inc., as
Issuer, and The First National Bank of Chicago, as Trustee, and under all notes,
bonds and debentures issued by the Company thereunder and all related loan
documents, in each case, as amended, supplemented or otherwise modified.
3. All Debt of the Company in respect of that certain Accreting Swap
entered into on January 26, 1998 between the Company and Bank of America, N.A.
with a notional amount of up to USD $29 million (6.214% Fixed Rate);
4. All Debt of the Company in connection with that certain Swap entered
into on September, 2001 between the Company, Bank of America, SunTrust Bank and
Wachovia Bank, N.A., with a notional amount of up to USD $200 million.
5. All Debt of Company in connection with that certain Swap entered
into on May, 2002 between the Company, Bank of America, N.A. and SunTrust Bank,
with a notional amount of up to USD $50 million.
6. All Debt and Support Obligations of the Company in an aggregate
imputed principal amount of up to $29 million under that certain Master
Agreement dated March 3, 1998, among the Company, as lessee, Construction Agent
and Guarantor, SunTrust Banks, Inc., as Lessor and SunTrust Bank, Atlanta, as
Agent, the related Lease Agreement and other project documents, in each case, as
amended, supplemented or otherwise modified. (Georgia Synthetic Lease)
7. All Debt and Support Obligations of the Company in an imputed
principal amount of up to $29 million under that Participation Agreement dated
as of March 18, 1994, among Alphafax Properties Limited Partnership, as a
Seller, the Company, as a Seller and Lessee, Equifax Properties, Inc. as General
Partner, First Chicago Leasing Corporation, as Owner Participant, Equifax
Business Trust No. 1994-A, as the Trust, Wilmington Trust Company, as Corporate
Owner Trustee, Xxxxxxx X. Xxxx, as Individual Owner Trustee, NationsBank of
Georgia, NA, as Indenture Trustee, and Trust Company Bank, as Lender, the
related lease agreement and all other related documents, in each case, as
amended, supplemented or otherwise modified.. (Leveraged Lease of X.X. Xxxxx
Technology Center in Alpharetta, Georgia).
Schedule 6.1(p), Page 1
8. Support Obligations of the Company in connection with its guarantee
of the obligations of Equifax Credit Information Services, Inc. under that
certain Lease Agreement dated as of December 30, 1996 between Equifax Credit
Information Services, Inc., as lessee, and MRSL Atlanta I, L.L.C., as Lessor,
with term of lease ending December 30, 2011, and all related agreements, in each
case, as amended, supplemented or otherwise modified. (4360 Northeast
Expressway)
9. Support Obligations of the Company under that (i) certain Credit
Agreement dated as of October 15, 2001 (the "Canadian Credit Agreement"), by and
among 3032423 Nova Scotia Company (the "Canadian Borrower"), the Company,
Canadian Imperial Bank of Commerce, as lender and administrative agent, and the
other financial institutions signatory thereto as lenders, (ii) the related
Guaranty by the Company, and (iii) all other related Credit Documents (as such
term is defined in the Canadian Credit Agreement).
10. The Debt of the Canadian Borrower under the Canadian Credit
Agreement and all other related Credit Documents (as such term is defined in the
Canadian Credit Agreement).
11. The contingent obligations of the Company to CSC in connection with
the CSC Agreement and the CSC Put.
12. Debt in the nature of capital lease obligations incurred in the
ordinary course of business of the Company and its Subsidiaries.
13. All Debt and Support Obligations of the Company and its
consolidated Subsidiaries as disclosed in the most recent consolidated balance
sheets (and related notes) of the Company as disclosed (or incorporated by
reference) in the Company's Form 10-Q for the quarterly period ended March 31,
2004 filed with the SEC on May 7, 2004.
14. All other Debt of the Company incurred after March 31, 2004,
through the date hereof, in an aggregate principal amount not in excess of $15
million.
Schedule 6.1(p), Page 2
SCHEDULE 9.2
LIENS AS OF THE CLOSING DATE
Liens of Borrowers and Subsidiaries existing on the Closing Date:
1. Liens on the Company's Atlanta, Georgia headquarters securing the
Debt discussed in Item 8 on SCHEDULE 6.1(P).
2. Liens on the Company's X.X. Xxxxx Technology Center in Alpharetta,
Georgia securing the Debt disclosed in Item 9 on SCHEDULE 6.1(P).
3. Liens under Capital Leases securing an aggregate principal amount of
Debt not exceeding $2,500,000.
Schedule 9.2, Page 1
SCHEDULE 13.1
NOTICE ADDRESSES FOR LENDERS
Schedule 13.1, Page 1
EXHIBIT A-1
FORM OF REVOLVING CREDIT NOTE FOR COMPANY
--------------, ----
FOR VALUE RECEIVED, the undersigned Borrower hereby promises to pay to
the order of ______________________, its successors and assigns, on or before
the relevant Termination Date to the office of the Administrative Agent in
immediately available funds as provided in the Credit Agreement,
(i) in the case of Revolving Credit Loans made under the
Revolving Credit Facility, such Lender's Revolving Credit Commitment
or, if less, the aggregate unpaid principal amount of all Revolving
Credit Loans owing to such Lender under the Revolving Credit Facility;
(ii) in the case of Swingline Loans, if such Lender is the
Swingline Lender, the Swingline Commitment or, if less, the aggregate
unpaid principal amount of all Swingline Loans owing to the Swingline
Lender; and
(iii) in the case of Competitive Bid Loans, the aggregate
unpaid principal amount of all Competitive Bid Loans owing to such
Lender;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of August __, 2004 (as amended, restated or otherwise
modified, the "CREDIT AGREEMENT") by and among EQUIFAX INC., EQUIFAX PLC, the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto and SUNTRUST BANK, as Administrative Agent. Terms used but
not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; PROVIDED that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default,
all amounts evidenced by this Note may, or shall, become immediately due and
payable as provided in the Credit Agreement without presentment, demand, protest
or notice of any kind, all of which are waived by the undersigned Borrower. In
the event payment of amounts evidenced by this Note is not made at any stated or
accelerated maturity, the undersigned Borrower agrees to pay, in addition to
principal and interest, all costs of collection, including reasonable attorneys'
fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of Georgia.
Exhibit A-1, Page 1
IN WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
EQUIFAX INC.,
a Georgia corporation
By: ____________________________
Name: __________________________
Title: _________________________
Exhibit A-1, Page 2
EXHIBIT A-2
FORM OF REVOLVING CREDIT NOTE FOR BORROWERS OTHER
THAN THE COMPANY
---------------- --, ----
FOR VALUE RECEIVED, the undersigned Borrower hereby promises to pay to
the order of ______________________, its successors and assigns, on or before
the relevant Termination Date to the office of the Administrative Agent in
immediately available funds as provided in the Credit Agreement,
(i) in the case of Revolving Credit Loans made under the
Revolving Credit Facility, such Lender's Revolving Credit Commitment or, if
less, the aggregate unpaid principal amount of all Revolving Credit Loans made
to such Borrower and owing to such Lender under the Revolving Credit Facility;
and
(ii) in the case of Competitive Bid Loans, the aggregate
unpaid principal amount of all Competitive Bid Loans made to such Borrower and
owing to such Lender;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of August __, 2004 (as amended, restated or otherwise
modified, the "CREDIT AGREEMENT") by and among EQUIFAX INC., EQUIFAX PLC, the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto and SUNTRUST BANK, as Administrative Agent. Terms used but
not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; PROVIDED that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default,
all amounts evidenced by this Note may, or shall, become immediately due and
payable as provided in the Credit Agreement without presentment, demand, protest
or notice of any kind, all of which are waived by the undersigned Borrower. In
the event payment of amounts evidenced by this Note is not made at any stated or
accelerated maturity, the undersigned Borrower agrees to pay, in addition to
principal and interest, all costs of collection, including reasonable attorneys'
fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of Georgia.
Exhibit A-2, Page 1
IN WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
[NAME OF BORROWER],
a _______________corporation
By: ______________________________
Name: ____________________________
Title: ____________________________
Exhibit X-0, Xxxx 0
XXXXXXX X-0
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
Dated as of:_____________________
SunTrust Bank,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Revolving Credit Borrowing is delivered to
you under Section 2.2(a) of the Credit Agreement dated as of August __, 2004 (as
amended, restated or otherwise modified, the "CREDIT AGREEMENT") by and among
EQUIFAX INC., EQUIFAX PLC, the Designated Borrowers from time to time party
thereto, the Lenders from time to time party thereto (the "Lenders") and
SunTrust Bank, as Administrative Agent.
1. The Company on behalf of ___________________ [Borrower] (the
"BORROWER") hereby requests that the Lenders make a Revolving Credit Loan to the
Borrower in the aggregate principal amount of ___________. (Complete with an
amount in accordance with Section 2.2(a) of the Credit Agreement.) The Company
on behalf of the Borrower hereby requests that the Lenders make such Revolving
Credit Loan to the Borrower under the Revolving Credit Facility.
2. The Company on behalf of the Borrower hereby requests that such
Revolving Credit Loan be made on the following Business Day: ______________
_____. (Complete with a Business Day in accordance with Section 2.2(a) of the
Credit Agreement.)
3. The Company on behalf of the Borrower hereby requests that the
Revolving Credit Loan bear interest at the following interest rate, PLUS the
Applicable Percentage in the case of Offshore Rate Loans, as set forth below:
Termination Date
$ Amount Basis for Interest Period for Interest Period Applicable Currency
Component of Loan Interest Rate (Offshore Rate Only) (if Applicable) (Offshore Rate Only)
----------------- ------------- -------------------- ---------------------- --------------------
[Base Rate or
Offshore Rate]
4. The principal amount of all Loans outstanding under the Revolving
Credit Facility as of the date hereof (including the requested Revolving Credit
Loan, if applicable) and the principal amount of all L/C Obligations outstanding
under the Revolving Credit Facility as of the date hereof (including the
requested Revolving Credit Loan, if applicable) do not exceed the maximum amount
permitted to be outstanding under the Revolving Credit Facility pursuant to the
terms of the Credit Agreement.
Exhibit B-1, Page 1
5. The Company hereby represents and warrants that the conditions
specified in Section 5.2 of the Credit Agreement have been satisfied or waived
in writing by the Administrative Agent as of the date hereof.
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Revolving Credit Borrowing on behalf of the Borrower this ____ day of
____________________, ______.
EQUIFAX INC.
By: ___________________________________
Name:__________________________________
Title:_________________________________
Exhibit B-1, Page 2
EXHIBIT B-2
FORM OF NOTICE OF SWINGLINE BORROWING
Dated as of: ____________
SunTrust Bank,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Swingline Borrowing is delivered to you
under Section 2.6(d) of the Credit Agreement dated as of August __, 2004 (as
amended, restated or otherwise modified, the "CREDIT AGREEMENT") by and among
EQUIFAX INC. (the "COMPANY"), EQUIFAX PLC, the Designated Borrowers from time to
time party thereto, the Lenders from time to time party thereto (the "LENDERS")
and SunTrust Bank, as Administrative Agent.
1. The Company hereby requests that the Swingline Lender make a
Swingline Loan to the Company under the Revolving Credit Facility in the
aggregate principal amount of __________. (Complete with an amount in accordance
with Section 2.6(d) of the Credit Agreement.)
2. The Company hereby requests that such Swingline Loan be made on the
following Business Day: ________________________ (Complete with a Business Day
in accordance with Section 2.6 of the Credit Agreement.)
3. The principal amount of all Loans and L/C Obligations outstanding
under the Revolving Credit Facility as of the date hereof (including the
requested Swingline Loan, if applicable) do not exceed the maximum amount
permitted to be outstanding under the Revolving Credit Facility pursuant to the
terms of the Credit Agreement. The principal amount of all Swingline Loans
outstanding as of the date hereof (including the requested Swingline Loan, if
applicable) does not exceed the Swingline Commitment.
4. The Company hereby represents and warrants that the conditions
specified in Section 5.2 of the Credit Agreement have been satisfied or waived
in writing by the Administrative Agent as of the date hereof.
5. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
Exhibit B-2, Page 1
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Swingline Borrowing on behalf of the Borrower this ____ day of _______, ____.
EQUIFAX INC.
By: ___________________________________
Name:__________________________________
Title:_________________________________
Exhibit B-2, Page 2
EXHIBIT C
FORM OF NOTICE OF ACCOUNT DESIGNATION
Dated as of:____________
SunTrust Bank,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you under Section
2.2 of the Credit Agreement dated as of August __, 2004 (as amended, restated or
otherwise modified, the "CREDIT AGREEMENT") by and among EQUIFAX INC., EQUIFAX
PLC, the Designated Borrowers from time to time party thereto, the Lenders from
time to time party thereto (the "LENDERS") and SunTrust Bank, as Administrative
Agent.
1. The Administrative Agent is hereby authorized to disburse all
proceeds of Loans made to [Borrower] (the "BORROWER") into the following
account(s):
___________________________________
ABA Routing Number:________________
Account Number: ___________________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided by the Borrower to the
Administrative Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this ______ day of --------, -----.
[BORROWER]
By:________________________________
Name:______________________________
Title:_____________________________
Exhibit C, Page 1
EXHIBIT D
FORM OF NOTICE OF PREPAYMENT
Dated as of:
SunTrust Bank,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you under Section
2.3(c) of the Credit Agreement dated as of August __, 2004 (as amended, restated
or otherwise modified, the "CREDIT AGREEMENT") by and among EQUIFAX INC.,
EQUIFAX PLC, the Designated Borrowers from time to time party thereto, the
Lenders from time to time party thereto (the "LENDERS") and SunTrust Bank, as
Administrative Agent.
1. The Company on behalf of ________________ [Borrower] (the
"BORROWER") hereby provides notice to the Administrative Agent that Borrower
shall repay the following [Base Rate Loans and/or Offshore Rate Loans]:
______________________ (Complete with an amount or amounts in accordance with
Section 2.3 of the Credit Agreement.)
2. The Loans to be prepaid are [Revolving Credit Loans] [Swingline
Loans] made under the Revolving Credit Facility.
3. The Borrower shall repay the above-referenced Loans on the following
Business Day: _________________ (Complete in accordance with Section 2.3 of the
Credit Agreement.)
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
Exhibit D, Page 1
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment on this ___ day of ________, ----.
EQUIFAX INC.
By:________________________________
Name:______________________________
Title:_____________________________
Exhibit D, Page 1
EXHIBIT E
FORM OF BORROWER JOINDER AGREEMENT
THIS BORROWER JOINDER AGREEMENT (the "AGREEMENT"), dated as of
_____________, _____, is by and between _____________________, a _____________
(the "APPLICANT BORROWER"), and SUNTRUST BANK, in its capacity as Administrative
Agent under that certain Credit Agreement dated as of August __, 2004 (as
amended, restated or otherwise modified, the "CREDIT AGREEMENT") by and among
EQUIFAX INC., EQUIFAX PLC, the Designated Borrowers from time to time party
thereto, the Lenders from time to time party thereto (the "LENDERS") and
SunTrust Bank, as Administrative Agent. All of the defined terms in the Credit
Agreement are incorporated herein by reference.
The Applicant Borrower has indicated its desire to become a Designated
Borrower pursuant to Section 2.10 of the Credit Agreement.
Accordingly, the Applicant Borrower hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Applicant Borrower will be deemed
to be a party to the Credit Agreement and a Designated Borrower for all purposes
of the Credit Agreement, and shall assume and have all of the obligations of a
Borrower thereunder as if it has executed the Credit Agreement. The Applicant
Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all
of the terms, provisions and conditions contained in the Credit Agreement
applicable to a Borrower.
2. The Applicant Borrower acknowledges and confirms that it has
received a copy of the Credit Agreement and the Schedules and Exhibits thereto.
3. Equifax Inc. (the "COMPANY") confirms that all of its obligations
under the Credit Agreement are, and upon the Applicant Borrower becoming a
Designated Borrower shall continue to be, in full force and effect.
4. Each of the Company and the Applicant Borrower agrees that at any
time and from time to time, upon the written request of the Administrative
Agent, it will execute and deliver such further documents and do such further
acts and things as the Administrative Agent may reasonably request in order to
effect the purposes of this Agreement.
5. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
6. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Georgia.
Exhibit E, Page 1
IN WITNESS WHEREOF, each of the Applicant Borrower and the Company has
caused this Borrower Joinder Agreement to be duly executed by its authorized
officers, and the Administrative Agent, for the benefit of the Lenders, has
caused the same to be accepted by its authorized officer, as of the day and year
first above written.
APPLICANT BORROWER: [_______________________________]
By______________________________
Name: ___________________________
Title: __________________________
COMPANY: EQUIFAX INC.,
a Georgia corporation
By______________________________
Name: ___________________________
Title: __________________________
Acknowledged and accepted:
ADMINISTRATIVE AGENT: SUNTRUST BANK
as Administrative Agent
By______________________________
Name: ___________________________
Title: __________________________
Exhibit E, Page 2
EXHIBIT F
FORM OF NOTICE OF CONVERSION/CONTINUATION
Dated as of: ___________
SunTrust Bank,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "NOTICE") is delivered
to you under Section 4.2 of the Credit Agreement dated as of August __, 2004 (as
amended, restated or otherwise modified, the "CREDIT AGREEMENT") by and among
EQUIFAX INC., EQUIFAX PLC, the Designated Borrowers from time to time party
thereto, the Lenders from time to time party thereto (the "LENDERS") and
SunTrust Bank, as Administrative Agent.
1. This Notice is submitted for the purpose of: (Check one and complete
applicable information in accordance with the Credit Agreement.)
I. CONVERTING ALL OR A PORTION OF A BASE RATE LOAN INTO AN OFFSHORE RATE
LOAN
(a) The aggregate outstanding principal balance of such Loan is
$___________.
(b) The principal amount of such Loan to be converted is
$___________.
(c) The requested effective date of the conversion of such Loan is
___________.
(d) The requested Interest Period applicable to the converted Loan
is ___________.
(e) The Applicable Currency of the converted Loan is ___________.
II. CONVERTING ALL OR A PORTION OF AN OFFSHORE RATE LOAN INTO A BASE RATE
LOAN
(a) The aggregate outstanding principal balance of such Loan is
$______________.
(b) The last day of the current Interest Period for such Loan is
______________.
(c) The principal amount of such Loan to be converted is
__________.
(d) The requested effective date of the conversion of such Loan is
______________.
III. CONTINUING ALL OR A PORTION OF AN OFFSHORE RATE LOAN AS AN OFFSHORE
RATE LOAN
(a) The aggregate outstanding principal balance of such Loan is
$___________.
Exhibit F, Page 1
(b) The last day of the current Interest Period for such Loan is
___________.
(c) The principal Dollar Equivalent amount of such Loan to be
continued is $___________.
(d) The requested effective date of the continuation of such Loan
is ___________.
(e) The requested Interest Period applicable to the continued Loan
is ___________.
(f) The Applicable Currency of such Loan is ___________.
2. The principal amount of all Loans and L/C Obligations under the
Revolving Credit Facility outstanding as of the date hereof does not exceed the
maximum amount permitted to be outstanding under the Revolving Credit Facility
pursuant to the terms of the Credit Agreement.
3. The Company hereby represents and warrants that no Default or Event
of Default (as defined in the Credit Agreement) has occurred and is continuing.
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
Exhibit F, Page 2
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation on this ____ day of ----------, ----.
EQUIFAX INC.
By: __________________________
Name: ________________________
Title: _______________________
Exhibit F, Page 3
EXHIBIT G
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, in his or her representative capacity on behalf of
EQUIFAX INC., hereby certifies to the Administrative Agent and the Lenders, each
as defined in the Credit Agreement referred to below, as follows:
1. This Certificate is delivered to you pursuant to Section 7.2 of the
Credit Agreement dated as of August __, 2004 (as amended, restated or otherwise
modified, the "CREDIT AGREEMENT") by and among EQUIFAX INC., EQUIFAX PLC, the
Designated Borrowers from time to time party thereto, the Lenders from time to
time party thereto (the "LENDERS") and SunTrust Bank, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Company and its
Subsidiaries dated as of __________________ and for the _________________
period[s] then ended and such statements present fairly in all material respects
the financial condition of the Company and its Subsidiaries as of their
respective dates and the results of the operations of the Company and its
Subsidiaries for the respective period[s] then ended, subject to normal year end
adjustments for interim statements.
3. I have reviewed the terms of the Credit Agreement and the related
Loan Documents and have made, or caused to be made under my supervision, a
review in reasonable detail of the transactions and the condition of the Company
and its Subsidiaries during the accounting period covered by the financial
statements referred to in Paragraph 2 above. Such review has not disclosed the
existence during or at the end of such accounting period of any condition or
event that constitutes a Default or an Event of Default, nor do I have any
knowledge of the existence of any such condition or event as at the date of this
Certificate [except, if such condition or event existed or exists, describe the
nature and period of existence thereof and what action the Borrowers have taken,
are taking and propose to take with respect thereto].
4. The Applicable Percentage Pricing Level and information as to the
financial ratios necessary for determining such figure are set forth on the
attached SCHEDULE 1.
5. The Borrowers and their Subsidiaries are in compliance with the
financial covenants contained in Section 9.1 of the Credit Agreement as shown on
such SCHEDULE 1 [EXCEPT TO THE EXTENT DISCLOSED ON SCHEDULE 1].
[Signature Page Follows]
Exhibit G, Page 1
WITNESS the following signature as of the _____ day of _______________,
_____
EQUIFAX INC.
By: __________________________
Name: ________________________
Title: _______________________
Exhibit G, Page 2
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance Agreement (this "ASSIGNMENT")
is dated as of the Effective Date set forth below and is entered into by and
between [INSERT NAME OF ASSIGNOR] (the "ASSIGNOR") and [INSERT NAME OF Assignee]
(the "ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "CREDIT
AGREEMENT"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, Letters of Credit and
Swingline Loans) (the "ASSIGNED INTEREST"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [, which is an
Affiliate/Approved Fund (1)]
3. Borrower(s): Equifax Inc., Equifax PLC
4. Administrative Agent: SunTrust Bank, as the administrative agent under
the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of August __, 2004
among Equifax Inc., Equifax PLC, the Designated Borrowers from time to
time party thereto, the Lenders from time to time party thereto (the
"LENDERS") and SunTrust Bank, as Administrative Agent.
----------
1 Select as applicable.
Exhibit H, Page 1
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
for All Lenders Assigned Commitment/loans (2)
--------------- -------- ---------------------
$________________ $________________ ______________%
$________________ $________________ ______________%
$________________ $________________ ______________%
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
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2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
Exhibit H, Page 2
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and] (3)Accepted:
SUNTRUST BANK,
as Administrative Agent
By: _________________________________
Title:
[Consented to:] (4)
EQUIFAX INC.,
a Georgia corporation
By: _________________________________
Title:
3 To be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.
4 To be added only if the consent of the Borrower and/or other parties (e.g.
Swingline Lender, Issuing Lender) is required by the terms of the Credit
Agreement.
Exhibit H, Page 3
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
CREDIT AGREEMENT DATED AUGUST __, 2004 IN FAVOR OF EQUIFAX INC.
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ACCEPTANCE AGREEMENT
1. REPRESENTATIONS AND WARRANTIES.
1.1. ASSIGNOR. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or document
delivered pursuant thereto, other than this Assignment (herein collectively the
"LOAN DOCUMENTS"), or any collateral thereunder, (iii) the financial condition
of the Company, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Company, any of its Subsidiaries or Affiliates or any other Person of any
of their respective obligations under any Loan Document.
1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
1.3 ASSIGNEE'S ADDRESS FOR NOTICES, ETC. Attached hereto as
Schedule 1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. PAYMENTS. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
Exhibit H, Page 4
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
3. GENERAL PROVISIONS. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment.
This Assignment shall be governed by, and construed in accordance with, the law
of the State of Georgia.
Exhibit H, Page 5
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
ADMINISTRATIVE DETAILS
(ASSIGNEE TO LIST NAMES OF CREDIT CONTACTS,
ADDRESSES, PHONE AND FACSIMILE NUMBERS,
ELECTRONIC MAIL ADDRESSES AND ACCOUNT AND
PAYMENT INFORMATION)
Exhibit H, Page 6
